author: OTT, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Michael A. LANG, Appellee.
    No. 79-994.
    District Court of Appeal of Florida, Second District.
    June 20, 1980.

      Lewis F. Collins, Jr. of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellant.
    Michael R. Karp of Wood, Whitesell & Karp, Sarasota, for appellee.
   OTT, Judge.

Appellant issued a policy providing $50,-000 in uninsured/underinsured motorist coverage to appellee. Appellee had an accident and elected to arbitrate his claim under the policy rather than pursue the tort-feasor, whose liability insurance limits were $15,000. The arbitration panel concluded that appellee sustained damages of $50,000 in the accident, for which he was 60% responsible, and accordingly awarded him $20,000. The panel rejected appellant’s request for a $15,000 setoff in recognition of the tortfeasor’s known liability insurance limits.

Appellee then filed suit against appellant to confirm the arbitration award. The circuit court rendered judgment on the pleadings in favor of appellee for $20,000 and awarded appellee his arbitration costs in the sum of $1,702.94. Appellant’s request for a $15,000 setoff was again denied. We reverse.

The trial court erred in refusing to allow the setoff. Uninsured and underin-sured motorist insurance provides coverage in excess of, but does not duplicate, benefits available to the insured from the tortfeasor. § 627.727(1), Fla.Stat.; Dickey v. Grange Mutual Casualty Co., 370 So.2d 1234 (Fla. 2d DCA 1979).

We can find no authority for appellee’s contention that only benefits “actually received” by the insured can be applied as an offset against his uninsured/underinsured motorist coverage. There is nothing in the statute or elsewhere suggesting that the word “available” in Section 627.727(1) was not used intentionally. We believe that a tortfeasor’s liability insurance coverage is “available” to one injured at the hands of the former, even though proceedings have not yet been instituted against the tort-feasor. The tenor of appellee’s argument to the contrary suggests that he may have misconstrued certain language in the cases holding that one insured against injury by an underinsured tortfeasor may look to his carrier for payment without first pursuing his claim against the tortfeasor, e. g., Arrieta v. Volkswagen Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977). That principle, however, has no bearing on the issue addressed here. The issue here concerns not the right of recovery from the insurer, but rather the amount of recovery. We do note dicta in Arrieta approving the result we reach here. 343 So.2d at 921.

Appellee’s reliance on Great American Insurance Co. v. Pappas, 345 So.2d 823 (Fla. 4th DCA 1977) is misplaced. There, the insurer insisted on arbitration of Mrs. Pap-pas’ claim undér its $300,000 UMC, and gave unequivocal notice that it would neither participate in her proceedings against the tortfeasor nor be bound by any verdict she might obtain therein. The arbitration panel awarded Mrs. Pappas $216,000, less the tortfeasor’s $100,000 liability insurance coverage. Later, Mrs. Pappas obtained a verdict for $80,000 in her action against the tortfeasor. Her insurer refused to pay the arbitration award on the ground that the jury evaluation of her damages would be paid in full by the tortfeasor’s liability carrier. Mrs. Pappas then sued her insurer and obtained judgment for the full amount of the arbitration award. That judgment was affirmed on appeal because the award had vested when it became final. The insurer had refused to either join in the suit or consent to be bound by the verdict against the tortfeasor, and therefore was bound by the results of the arbitration on which it had insisted. There are no parallels between that case and the one presented here.

Appellee hypothesizes that his action against the tortfeasor might terminate in a defense verdict, in which case appellant would “get a windfall” of $15,000. To the contrary. Should that occur, the “windfall” would be appellee’s, i. e., he will have recovered $5,000 from appellant for an accident determined by a jury to have been wholly his own fault. But that is merely the result of having two independent tribunals concurrently empowered to adjudicate fault and damage.

Appellant also attacks the award of costs incurred in the arbitration proceeding, and relies upon American Service Mutual Insurance Co. v. Wilson, 323 So.2d 645 (Fla. 3d DCA 1975) as authority. The trouble with American Service, as noted in the dissenting opinion thereto, is that it is in direct conflict with State Farm Mutual Automobile Insurance Co. v. Rutkin, 199 So.2d 705 (Fla.1967). See, also, Eagle Star Insurance Co. v. Parker, 365 So.2d 780 (Fla. 4th DCA 1978) and McNair v. Continental Insurance Co., 245 So.2d 634 (Fla. 1st DCA 1971), both of which follow Rutkin. As a matter of fact, Rutkin itself originated in the Third District Court of Appeal. Our supreme court approved the majority opinion written there and tacitly rejected a dissenting opinion by the author of the subsequent Ameri-can Service decision. We find no merit in appellant’s attack on the cost award.

The award of costs is therefore affirmed. The judgment for the arbitration award of $20,000 is modified by reducing it to $5,000 and, as modified, affirmed.

BOARDMAN, Acting C. J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.

      . Since neither this court nor our supreme court has as yet expressly adopted the principal holding of Arrieta, this would be a propitious opportunity to address that issue. The parties do not raise it, however, and thus it is not before us. However, nothing we say herein is to be taken as an opinion on that issue.


source: Caselaw Access Project

author: NESBITT, Judge.

license: Public Domain

text:
    Rigoberto DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1552.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    On Rehearing Sept. 26, 1980.

      Jack R. Blumenfeld, Coconut Grove, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The defendant appeals from a judgment of conviction for manslaughter entered pursuant to Section 782.07, Florida Statutes (1977). His adjudication arose out of an information charging him with murder in the second degree pursuant to Section 782.-04(2), Florida Statutes (1977). A jury found him guilty of manslaughter, being a lesser included offense, for which he was sentenced to fifteen years in the state penitentiary.

The only point with which we are concerned is whether the trial court erred in denying the defendant’s motion for judgment of acquittal and subsequent motion for new trial on the ground that the state failed to rebut, according to the established circumstantial evidence rules, that the defendant, in the commission of a homicide, had acted in self defense.

Curiously, the homicide occurred in a small restaurant in Key West and the incident per se was observed neither by the owner nor the employees nor any of the other patrons. Those witnesses recalled the defendant seated close to the victim but did not observe any weapon in the victim’s possession. A patron testified he heard a shot and saw the victim fall but did not see the defendant draw the lethal weapon, a 45-ca-libre pistol. A waiter, working tables, only heard the report of the pistol.

The defendant, who testified in his own behalf, stated that while he was drinking beer the victim, who was seated at an adjacent table, started to make trouble for the defendant’s companion. The defendant inquired why the victim (a person he had never met before) wished to cause trouble and was twice told by the victim: “I'm going to shoot you five times.” According to the defendant, the victim then rose from his table and approached the defendant again making the same oral threat while apparently reaching in his pocket for a weapon. It was later determined that the victim was unarmed. The defendant admitted drawing his pistol and pointing it at the victim. However, he claimed the pistol fired accidentally. The defendant exited the restaurant and hid the weapon outside. He shortly returned and requested the proprietor to call the police. She advised him that she had already done so. An investigating officer testified that the defendant told him of the victim’s threat to “shoot him five times.”

The defendant is five feet four inches tall and weighs 126 pounds. At the time of the incident, he was forty-two years of age. A breathalizer test performed on the defendant shortly following his arrest indicated a reading of “.08.” An expert testified that when a reading of “.10” is reached, the examinee is considered intoxicated. The defendant stated he did not realize that the fatal weapon had a safety. A detective who had examined the weapon testified that the thumb-safety of the pistol was inoperative but that the safety cock notch was functional.

The defendant’s direct testimony concerning the victim’s threats and his menacing approach together with the defendant’s assertion that he was in fear of his life made out a prima facie case of self defense under Section 776.012, Florida Statutes (1977). The state presented no evidence to rebut the defendant’s direct testimony that he acted in self defense nor was it able to diminish his testimony on cross-examination. Under these circumstances, only those inferences properly arising out of the state’s testimony in chief could be considered to rebut the defendant’s assertion of self defense. In this posture, that evidence, circumstantial in its entirety, was woefully inadequate to rebut the direct testimony that the defendant committed homicide in self defense. Mayo v. State, 71 So.2d 899 (Fla.1954); cf. McArthur v. State, 351 So.2d 972 (Fla.1977).

In Ferguson v. State, 379 So.2d 163 (Fla. 3d DCA 1980), we similarly reversed a second degree murder conviction where the state had no witnesses to testify about the actual shooting incident and presented no evidence to contradict the defendant’s claim of self defense.

For the foregoing reasons, the defendant’s judgment of conviction is reversed and remanded with directions to discharge him from custody.

Reversed.

ORDER ON REHEARING GRANTED

Pursuant to reargument granted, the court has reconsidered the record and the briefs, has heard argument of counsel and has concluded that our opinion and judgment filed July 1, 1980 should be adhered to.


text:
    STATE of Florida, Appellant, v. Rose Mary CLARKE, Patrick B. Clarke, and Desiree Lynn Perez, Appellees.
    No. 79-1451.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, Tampa, for appel-lees.
   OTT, Judge.

The trial court granted appellees’ motion to suppress various drugs taken from their apartment during a search by Tampa police officers acting pursuant to a warrant. We reverse.

The bases for appellees’ motion were (1) that the affidavit for issuance of the warrant and the warrant itself were legally insufficient, and (2) that the officers who executed the warrant violated the “knock and announce rule”, Section 933.09, Florida Statutes.

With respect to the latter grounds, police officers testified at the hearing on the motion that they did not announce their identity and purpose before entering appellees’ apartment because when they knocked on the door one of the appellees called from inside, “Come in”, which they proceeded to do. Appellees denied that they had invited the entry, and asserted that the officers had simply opened the door and barged in without knocking or announcing their identity and purpose.

The trial court refused to pass upon the sufficiency of the affidavit and warrant or to make a finding as to whether the officers did or didn’t knock and were or were not invited to enter. The court ruled that it didn’t matter whether they were invited in or not — that the law requires even invited officers to state their identity and purpose before entering premises they intend to search.

The court erred. The so-called “knock and announce rule” was designed to protect the right of the citizen to privacy in his own home. Benefield v. State, 160 So.2d 706 (Fla.1964). The rule imposes certain obligations on law enforcement officers preliminary to their forcible entry into a private residence. § 933.09, Fla.Stat. Where entry is gained peaceably, as by invitation, the “knock and announce” requirement does not apply. King v. State, 371 So.2d 120 (Fla.1st DCA 1978); Powers v. State, 271 So.2d 462 (Fla.1st DCA 1973); Koptyra v. State, 172 So.2d 628 (Fla.2d DCA 1965). The fourth amendment guarantees that a man’s home is indeed his castle, but when he invites a stranger to enter he “break[s] the seal of sanctity and waive[s] his right to privacy in the premises” (subject, of course, to certain limitations not relevant here). Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).

Appellees rely on certain decisions from the third and fourth district courts of appeal as authority for the proposition that invitation to enter does not obviate compliance with the “knock and announce rule.”

State v. Roman, 309 So.2d 12 (Fla.4th DCA 1975) and State v. Collier, 270 So.2d 451 (Fla.4th DCA 1972) both involved a situation where a police officer entered a residence by invitation, then left on some pretext involving a promise (or at least a declared intent) to return, and shortly thereafter re-entered the residence in order to execute a search warrant (Collier) or arrest the occupant (Roman), without knocking and announcing his authority and purpose. Neither case flatly supports the proposition for which it is cited. Collier says, regarding the “impliedly invited” reentry:

It seems rather clear that Officer Hill’s first entry into the apartment was authorized by the Colliers, but that such authorization did not relieve Officer Hill from the burdens of the statute after he left and returned not in the capacity of a social guest, but in his official capacity for the purpose of executing a search warrant.

270 So.2d at 454-55.

Roman makes the same point and quotes as authority the foregoing excerpt from Collier. By implication, at least (and even expressly in Roman), the initial entry of the officers did not trigger the “knock and announce” requirements, because it was invited. Thus, both cases merely stand for the proposition that an invitation to enter at one time, for one purpose, will not sanction a later entry for another purpose. We are not called upon here to accept or reject that proposition, and therefore decline to do so.

Collier contains somewhat ambiguous dicta that might seem to support appellees’ present position. Immediately preceding the above-quoted holding of the case, the court said:

At oral argument the state contended that because Officer Hill was invited into the apartment as a social guest, he had the right, after leaving and without further formality, to re-enter the apartment with his fellow officers for purposes of executing the search warrant. This argument really begs the question because it assumes, without demonstrating, that the statute in question has an exception which covers such an entry. The statute does not have such exception and one cannot reasonably be found in the implication of the statute.

270 So.2d at 454[4].

We do not construe that as a statement that police officers must comply with the “knock and announce rule” even though they are invited to enter. The Collier court was discussing exceptions to the rule, i. e. situations where officers can break and enter without observing the statutory prerequisites to doing so. It is too obvious to really require dilation that officers who are invited to enter have no need to “break and enter”, and therefore need no “exception” to justify their actions. To put the matter another way, the conditions which avoid application of a rule are not classified as “exceptions” to that rule. Here, the rule pertains to forcible entry. If the officers do not “break and enter”, even technically, the rule does not apply, and it is pointless to speculate whether the circumstances give rise to an exception to the rule.

Likewise, State v. Prickett, 305 So.2d 222 (Fla.3d DCA 1974) might seem to support appellees’ contention, but again careful examination discloses that although the facts recited there showed an invited entry, the court never once mentions the impact of that circumstance on the applicability of the “knock and announce rule.” Evidently the state never raised the point. Consequently, we do not believe that case supports appel-lees’ position here.

In any event, however, even if Prickett were square authority for appellees’ contention, we would not find it persuasive because each and every one of the four cases on which it relies explicitly ties the “knock and announce rule” to forcible entry. Prickett says:

The police officers failed to announce either their authority or their purpose prior to entering the house to execute the search warrant as required by Fla.Stat. § 933.09. See, State v. Kelly, Fla.1973, 287 So.2d 13; Earman v. State, Fla.1972, 265 So.2d 695; Moreno v. State, Fla.App. 1973, 277 So.2d 81; State v. Collier, Fla.App.1972, 270 So.2d 451.
In addition, the record is devoid of any evidence offered by the state to justify the police actions in this case under one of the exceptions to the statute.

305 So.2d at 223[3].

Kelly left no doubt about the circumstances which give rise to the “knock and announce rule”:

It has been recognized that generally where a police officer fails to announce his authority and purpose prior to a force-able [sic] entry into a home to make an arrest or to execute a warrant, the arrest or execution is illegal and the fruits of any attendant search are subject to suppression.

287 So.2d at 15[1].

In Earman police officers sent an informant into a private residence and then “rushed into the house” and made an arrest without knocking or announcing their authority or purpose. It was a forcible entry and the supreme court specifically discusses the statutory authorization for a forcible entry after knocking and announcing.

We have already discussed Collier. Third District’s own case, Moreno, involved a forcible entry after police officers identified themselves as such but failed to announce their purpose. That omission was singled out as the sole ground for reversal. The court held that Moreno’s arrest, and the seizure of drugs from her bedroom, were invalid because forcible entry is permitted only if the officer first announces both his authority and purpose.

We reverse the order granting appellees’ motion to suppress and remand the case to the trial court for a full hearing on the motion in the light of this opinion.

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


author: RYDER, Acting Chief Judge.

text:
    VIKING GENERAL CORPORATION, Viking Mobile Homes, Inc., Viking Communities Corporation and 119 Properties Corporation, Appellants, v. DIVERSIFIED MORTGAGE INVESTORS, Appellee.
    Nos. 79-1345 to 79-1352.
    District Court of Appeal of Florida, Second District.
    July 23, 1980.
    Rehearing Denied Sept. 22, 1980.

      Walter H. Beckham, Jr. and Joel D. Eaton of Podhurst, Orseck & Parks, P. A., Miami, and Pavese, Shields, Garner, Haver-field, Kluttz & Cottrell, Fort Myers, and Spicola & Larkin, Tampa, for appellants.
    Julian D. Clarkson of Holland & Knight, Tampa, and Alan T. Dimond, of Greenburg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, P. A., Miami, for appellee.
   RYDER, Acting Chief Judge.

Viking General Corporation (Viking) appeals from an order vacating judgment, alleging that the lower court exceeded the scope of Viking’s motion in granting relief. Diversified Mortgage Investors (DMI) cross-appeals the grant of any post-judgment relief. We reverse and remand for reinstatement of the order based on our prior mandate.

Our first opinion in this case is reported as Diversified Mortgage Investors v. Viking General Corp., 351 So.2d 734 (Fla. 2d DCA 1977), cert. denied, 364 So.2d 893 (Fla.1978). Viking sought damages for DMI’s alleged breach of an agreement to pay off two mortgages on Viking’s property if Viking defaulted. We held that the default referred to principal only, closing by noting:

Thus, we hold that because there was no default in principal during the period DMI was obligated to make advances under the agreement, DMI did not breach the agreement and cannot be held liable on the crossclaim. The judgment against DMI is reversed, and the case is remanded for such further proceedings consistent with this opinion as may be necessary.

Id. at 737.

Following the denial of certiorari, Viking filed a motion seeking entry of a judgment in accordance with the mandate of this court, and an order vacating and setting aside the judgment on the ground that it was a product of misrepresentation, inadvertence and mistake pursuant to Fla.R. Civ.P. 1.540(b). Attached to the motion were the affidavits of Wayne Smith, on whose testimony this court relied in finding the default was of interest only, and Howard Frank, an accountant for appellant.

In his affidavit, Smith, vice president of the Exchange National Bank of Winter Haven, stated that although he had previously testified that $17,500.00 interest was due on the note from Viking, he later, and after trial, re-examined the written information supplied by the seller of the note and had determined that the amount overdue was actually principal under the terms of the note, since payments were to be applied first to accrued interest and then to principal. At the time of acceleration on July 1, 1974, the principal due was $19,-415.10.

Howard S. Frank, an accountant with Price, Waterhouse & Co., audited the books for American Capital Corporation, the owner of Viking. Frank stated that he had reviewed the note in question and found that the records of Viking had improperly applied the payments made on March 26, 1974, to principal, when the note required the payment first to be applied to interest.

The court entered a final judgment in compliance with this court’s mandate, and entered an order reciting that the Fla.R. Civ.P. 1.540 motion made a prima facie showing. At hearing on the motion, Smith and Frank adopted the testimony contained in their affidavits. Smith explained that his prior testimony was based merely upon an assumption that the information provided him by the assignor of the note was correct. Frank explained that the records of Viking which had been placed into evidence at the trial had not been prepared for the purpose of allocating the payments on the note held by Exchange between principal and interest. Robert Marlin, board chairman of Viking, testified that there was no agreement between Viking and the note assignor providing that the payments be allocated in any other manner than as required by the note.

The trial court noted that appellee DMI could have paid the $17,500.00 and not caused any other default, and said that Viking’s only damages thus were $17,500.00. The court granted the motions for relief from judgment, found that DMI breached its obligation to fund Viking the principal amount of $17,500.00, and that that failure to fund did not cause the foreclosure by the first mortgage holder. The court awarded $17,500.00 plus interest to Viking. Judgment was entered in favor of Viking in that sum and in favor of DMI in the amount of its mortgage plus interest of $923,197.96. The award in DMI’s favor included an award of $22,500.00 for attorney’s fees incurred in prior appellate proceedings, although DMI had neither sought nor obtained an order authorizing an award of attorney’s fees from either this court or the supreme court.

Viking relies on the mistake, inadvertence, surprise or excusable neglect provisions of Fla.R.Civ.P. 1.540(b)(1) to support reopening of the judgment, but argues that the court went beyond the issues framed by the motion and reopened the entire case. DMI alleges that the requisite mistake was not shown, and any relief was improper.

Fla.R.Civ.P. 1.540(b)(1) permits relief from final judgments for mistake, inadvertence, surprise or excusable neglect. Viking maintains that the mistakes of the witnesses in testifying incorrectly was a mistake cognizable under this rule but disclaims any other ground for relief such as newly discovered evidence, and made no attempt to meet the standards for relief under any other ground.

The mistake envisioned by the rule is the type of honest and inadvertent mistake made in the ordinary course of litigation, usually by the court itself, and is generally for the purpose of setting the record straight. Danner v. Danner, 206 So.2d 650 (Fla. 2d DCA-1968). In Danner, the court found that the rule did not contemplate a miscalculated reliance by a party upon a representation of the other party.

Mistakes contemplated by the rule include the court’s inadvertent signing of an incorrect order. Marx v. Reed, 368 So.2d 101 (Fla. 4th DCA 1979). The entry of final judgment under the mistaken belief that the defendant is in default is also a mistake cognizable under the rule. Odum v. Morningstar, 158 So.2d 776 (Fla. 2d DCA 1963). The types of mistake contemplated are usually factual and made by a party or the court. Cf., 46 Am.Jur.2d Judgments § 717 (1969).

Neither the parties’ briefs nor our own research reveal any case in which a mistake of fact by a witness was held to be proper ground for relief under Fla.R.Civ.P. 1.540(b)(1) or the similar Fed.R.Civ.P. 60(b). In Smiles v. Young, 271 So.2d 798 (Fla. 3d DCA 1973), cert. denied, 279 So.2d 305 (Fla. 1973), the court considered a motion for relief from judgment because of a mistake in assumption as to severity of a personal injury. The judgment was based on a settlement and the plaintiff subsequently discovered her injury to be more severe, a fact which had been known by the defendant at the time of settlement. Our sister court reversed the relief which the trial court had granted, noting that the rule does not have as its purpose or intent the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence. In Kahle v. Amtorg Trading Corp., 13 F.R.D. 107 (D.N.J.1952), a federal district court was faced with a similar problem in application of Fed.R.Civ.P. 60(b), which provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, ... for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect .

The plaintiff averred by affidavit that since the grant of summary judgment against him, he had searched his files and found certain correspondence which he had thought of no importance when the lawsuit began. The court noted that plaintiff could not meet the requirements of the “newly discovered evidence” ground for relief, and held that the ground of mistake was not available to them for a mistake of their own judgment. Accord, Torockio v. Chamberlain Mfg. Co., 56 F.R.D. 82 (W.D.Pa.1972), aff’d, 474 F.2d 740 (3d Cir. 1973). Conversely, we are aware of two federal bankruptcy cases permitting relief from judgment on mistake grounds when a party produces new evidence allegedly overlooked by mistake. Speare v. Consolidated Assets Corp., 360 F.2d 882 (2d Cir. 1966); In Re: Harkins, 367 F.Supp. 1370 (N.D.Miss.1973).

Regardless of the apparent conflict in these federal cases, we hold the mistake of a witness in substantive testimony is not the type of mistake contemplated by Fla.R. Civ.P. 1.540(b)(1). If such evidence comes to light, a diligent party may always have relief pursuant to the “newly discovered evidence” provisions of Fla.R.Civ.P. 1.540(b)(2). The necessary finality of litigation prohibits us from giving parties a second chance at proof they had available in the first instance, but overlooked or chose not to use.

We note that appellee did not file a motion for appellate attorney’s fees for the prior appeal in this court as contemplated by Fla.R.App.P. 9.400(b). The award of appellate attorney’s fees below was thus improper.

The order setting aside the judgment below is REVERSED, and REMANDED for re-entry of the order entered on our prior mandate.

DANAHY, J., and DEWELL, JOHN H., Associate Judge, concur.


author: BERANEK, Judge.

text:
    GEORGIA-PACIFIC CORPORATION, Appellant, v. SQUIRES DEVELOPMENT CORPORATION, Appellee. SQUIRES DEVELOPMENT CORPORATION, Appellant, v. Conrad J. De SANTIS, and others, Appellees. GEORGIA-PACIFIC CORPORATION, Appellant, v. Conrad J. De SANTIS, and others, Appellees.
    Nos. 76-2395, 78-420 and 78-639.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 1980.

      Basil E. Dalack and Donald J. Beutten-muller, Jr., of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for Georgia-Pacific Corp.
    Paul D. Mark Lucas and Michael J. Am-endola of Hamilton, James, Merkle & Young, West Palm Beach, for Squires Development Corp.
    Timothy W. Gaskill of De Santis, Cook, Meehan, Cohen, Gaskill & Silverman, P. A., North Palm Beach, for De Santis and others.
   BERANEK, Judge.

This matter involves three consolidated appeals from two different final judgments entered in separate lawsuits. The general situation involved a condominium office in which defective wood paneling was installed. The manufacturer of the paneling, the developer/builder of the condominium unit, and the purchasers of the condominium were involved in two lawsuits resulting in the two final judgments under attack. The matter is extremely confused and we sympathize with the trial court in attempting to sort out the inartfully pled claims. We conclude that the final judgments below must be reversed. On remand, it will be necessary to consolidate the claims and require total repleading of the issues. We will first attempt to outline the facts giving rise to the litigation, then summarize the status of the cases, the issues tried and the damages awarded, and finally, discuss the errors requiring reversal.

There are three entities involved. Squires Development Corporation was a developer involved in the construction and sale of the condominium office unit located in a building complex it constructed. De Santis and Cook, P.A., was a law firm composed of Conrad De Santis and Robert Cook. The owners of this professional association purchased a new condominium unit from Squires and had the developer install wall paneling in it. Georgia-Pacific Corporation was a manufacturer of various wood products who manufactured and sold the particular paneling in question. These three parties, Squires, De Santis, and Georgia-Pacific, were involved in two separate lawsuits, both relating to the consequences of a defect in the wood paneling which had been supplied by a retailer who was also initially involved in the litigation but is not involved in this appeal.

The facts are generally as follows. The De Santis law firm purchased an undecorated condominium office from Squires on January 7, 1974, for a total of $60,236.50. This price included the cost of paneling which the buyers chose to have installed in the' office. The De Santis group selected a particular wood paneling manufactured by Georgia-Pacific. A supplier named Ray Ty-lander, Inc., sold the paneling and delivered it to Squires for installation in the unit. De Santis & Cook took possession of their unit and attempted to practice law there. After the unit had been occupied for a brief period, it became evident that the paneling was defective. For unknown reasons, the paneling emitted a substance or fumes which irritated the eyes, nose, throat and lungs of all persons remaining in the office for any period of time. Although not without dispute, there was substantial evidence that the paneling made the office totally unusea-ble as a place in which to practice law. De Santis complained to Squires, who, in turn, complained to the retailer and to Georgia-Pacific. The parties had numerous conferences and various steps were taken in an attempt to remedy the problem. Georgia-Pacific told De Santis to run the air condi-, tioners constantly. This was done, but the offending fumes remained. The walls were sprayed with a special material and were eventually washed down. The problem remained unabated.

De Santis made complaints to Squires and after approximately three months of occupancy demanded that Squires consider removing the defective paneling. At approximately the same time, De Santis and Squires were also negotiating regarding the possibility of De Santis’ purchasing a new office unit. In May, 1974, after approximately four to five months of occupancy, De Santis moved out of the first unit into a second unit within the same complex. In a complex contractual arrangement, De San-tis and Squires agreed to exchange the office with the defective paneling for another office twice the size of the first office. Squires gave De Santis a $64,496.73 credit on the purchase of the new office unit which had a sales price of $130,000. The $64,496.73 credit covered the initial purchase price of $60,236.50, plus reimbursement for all of the specialized improvements, including paneling, carpeting and furnishings, which De Santis had put in the first unit. De Santis did not actually need or want a unit twice as large as the one initially purchased. However, De Santis and Squires had an additional side agreement regarding De Santis’ sub-leasing half of the new unit to a sub-tenant and Squires’ cooperation in providing such a tenant. De Santis did sub-lease half of the new unit. De Santis apparently moved into that unit and practiced law without difficulty. The financial details of the exchange of the old unit for the new units are confusing to say the least. When Squires took back the initial unit, it somehow assumed the mortgage and also began paying the monthly maintenance fees and taxes on it. Despite this, De Santis still remained liable on the mortgage but apparently no demand was ever made on De Santis for this obligation.

Also, in May, 1974, Squires offered to sell the initial condominium unit to Georgia-Pacific for $64,496.73, the same price it credited De Santis for the unit. At this point, the paneling was still in place. Georgia-Pacific rejected this offer of sale but offered to pay Squires $7,000, which Georgia-Pacific estimated would completely cover the costs of removing and replacing the paneling. The evidence at the later trials showed repairs could have been accomplished for less than the $7,000 offered. Squires rejected this cost of cure approach and continued to hold the unit. Squires later asserted it did incur expenses in doing so.

The condominium unit was eventually sold by Squires to a Dr. Ackerman in August, 1975, for $57,000, with the paneling still in place. After the period of approximately two years, it had become inoffensive and was acceptable for it intended use as a wall covering.

On the basis of these facts, two suits were instituted. On October 10, 1974, De Santis filed suit against both Squires and Georgia-Pacific in Case No. 74-2721. On March 25, 1975, Squires filed a cross-claim for indemnity against Georgia-Pacific. On October 15, 1974, five days after the initial suit was filed, Squires also filed a separate suit against Georgia-Pacific designated as Circuit Court Case No. 74-2779. The first case of De Santis v. Squires and Georgia-Pacific was a non-jury matter. The second filed case of Squires vs. Georgia-Pacific was a jury case and was tried and determined before trial of the earlier filed non-jury case.

The two cases proceeded independently of each other, and the trial court denied Georgia-Pacific’s motions to consolidate them. The eventual judgment in Case No. 74-2779 (the jury case) was in favor of Squires against Georgia-Pacific in the amount of $16,030. In Case No. 74-2721 (the non-jury case), the eventual final judgment was in favor of De Santis against both Squires and Georgia-Pacific in the sum of $10,436. In addition, squires prevailed on its cross-claim for indemnity in the non-jury action against Georgia-Pacific and received a judgment over against Georgia-Pacific in the amount of $10,436, plus a judgment for attorneys’ fees in the amount of $2,637. Appeals have been taken by Georgia-Pacific as to all judgments against it and by Squires as to the judgment against it.

We initially treat the case which was disposed of first by jury trial. Case No. 74-2779 was a suit by Squires against Georgia-Pacific where Squires alleged it owned and built a condominium office which had been sold to a third party, De Santis. Squires alleged it bought Georgia-Pacific’s paneling which was incorporated in the office and that the paneling was defective. Squires alleged the defective paneling constituted a breach of implied warranty by Georgia-Pacific and that “as a direct and proximate result of the defendant’s breach of an implied warranty of fitness and merchantability, the plaintiff [Squires] has had to void the sale to its third party purchaser of Unit 1-E; retake possession of said unit, pay extra sales commissions and closing costs; and in addition, lost the use of said office space while having to expend moneys to maintain it.” (Emphasis supplied.) These were the only elements of damages and the only theory of liability was breach of warranty. This case was tried before a jury which returned a verdict of $16,030. This verdict was almost to the penny in accordance with what counsel for Squires had asked for in closing argument. Squires introduced evidence of the following elements of damages over Georgia-Pacific’s objection:

(1) The difference between the credit given to the third party purchaser, De Santis, when Squires took back the Unit #1-E ($64,496.73) and the resale price to Dr. Ackerman in August, 1975 of $57,000 $7,496.73
(2) Mortgage payments for Unit #1-E from May, 1974, until July of 1975, paid by Squires 5,749.50
(3) Condominium maintenance fees paid by Squires from May, 1974, until July, 1975, for Unit # 1-E 1,155.00
(4) Utility bills for the same unit for the same period of time 57.18
(5) Pro-rated real estate taxes for same unit for the same period 1,068.00
(6) Closing costs on resale to Dr. Acker-man 433.70
(7) Changing sign on building for third party purchasers, De Santis 70.72
TOTAL $16,030.83

The jury returned a verdict of $16,030, inexplicably reducing this amount by 83 cents. Judgment was subsequently entered on the verdict.

Case No. 74-2721 was filed first but determined at a non-jury trial subsequent to the jury trial in the other case. In Case No. 74-2721, De Santis sued both Squires and Georgia-Pacific on theories of breach of warranty, breach of contract, and negligence. De Santis alleged it had purchased the condominium from Squires and that Georgia-Pacific had manufactured and supplied the defective paneling. De Santis claimed damages in the sum of $37,500, represented by “damages sustained in purchasing a new and different office condominium, additional interest charges required to purchase a new office condominium, additional mortgage loan service charges, moving charges, loss of secretarial help, retraining expenses, loss of clients in business, loss of attorneys and secretaries’ efficiency and individual pain, suffering and other damages.”

In the non-jury trial, plaintiff De Santis introduced evidence of the following damages over objection of defendant, Georgia-Pacific:

(1) $11,534.80, representing the interest difference on a 9%, $104,000.00 mortgage on the second larger unit and the 8'/2%, $47,000.00 mortgage on the first unit;
(2) $278.55, moving expenses incurred in moving from the first to the second unit;
(3) $1,498.00, in closing costs on the new larger unit;
(4) $1,766.00, for the time De Santis and his law firm expended trying to solve the paneling problem; and
(5) $7,500.00, for business interruption and disruption resulting from the noxious odor.
TOTAL $23,577.35.

The trial court reduced the requested damages by some $13,141.35, and entered judgment in the amount of $10,436.00 in favor of De Santis against both Squires and Georgia-Pacific. The court also entered judgment in favor of Squires against Georgia-Pacific on its cross-claim for indemnity in the same amount of $10,436.00, plus attorneys’ fees of $2,637.00. The final judgment in Case No. 74-2721 makes it clear that De Santis is entitled to only one recovery and that the primary responsibility for the payment of the judgment rests upon Georgia-Pacific. Under the judgment, if Georgia-Pacific paid the $10,436.00 to De Santis, it would no longer owe this amount to Squires.

The combined effect of all of the litigation is as follows:

(a) Georgia-Pacific owes Squires $16,030 for breach of warranty;
(b) Georgia-Pacific owes Squires $2,637 for attorneys’ fees;
(c) Georgia-Pacific owes $10,436 to De Santis for breach of warranty or $10,-436 to Squires for indemnity;
(d) Squires owes $10,436 to De Santis for breach of warranty.

Georgia-Pacific and Squires seek review of all adverse judgments against them.

Appellant, Georgia-Pacific, in Case No. 74-2779 (DCA Case No. 76-2395), raises numerous points for consideration by this court. Georgia-Pacific contends error occurred regarding the following:

1. Georgia-Pacific argues the trial court erred in denying its Motion to Dismiss Squires’ complaint, which was based on breach of warranty. It urges the cause of action, if any, was actually vested in De Santis.

2. It asserts that the court abused its discretion and committed reversible error in failing to consolidate the cases of Squires v. Georgia-Pacific, Circuit Court Case No. 74-2779, and the cross-claim of Squires v. Georgia-Pacific in Circuit Court Case No. 77-2721. This argument is based on a two-pronged theory that the separate disposition of the two suits in a separate jury and non-jury trial resulted in both a prejudicial splitting of the Squires cause of action and the failure to join an indispensable party, since De Santis was not a party to this case which was tried and disposed of first.

3. Georgia-Pacific claims error in regard to the damages because, instead of limiting Squires to the cost of repairing and replacing the paneling, Squires was allowed to recover all expenses in retaking and reselling the unit. Georgia-Pacific further maintains that the difference between the sale price to De Santis and the sale price to Ackerman was not shown to be due to the defective paneling and that the allowance of Squires’ payment of mortgage obligations on the unit constituted a duplicate recovery. It further asserts that the court’s instructions to the jury allowed them to consider unforeseeable, consequential and incidental damages based upon the “value of the office” rather than upon the proper standard, cost of curing the defect by replacing the paneling.

4. Georgia-Pacific also asserts error in the trial court’s failure to grant a directed verdict in its favor due to the absence of any proof that Squires had a legal and enforceable responsibility to retake ownership of the unit from De Santis. We believe strong arguments exist in support of all of the above positions, but we need consider only the last argument regarding Squires’ legal duty to retake possession and ownership of the unit.

The complaint alleged a cause of action based on breach of implied warranty in that the defective paneling caused damage to Squires. The sole reason for the damage asserted by Squires is contained in paragraph 9, which is as follows:

9. As a direct and proximate result of the defendant’s breach of implied warranty of fitness and merchantability, the plaintiff [Squires] has had to void the sale to its third party purchaser [De Santis] of Unit 1-E; retake possession of said unit, pay extra sales commissions and closing costs; and in addition, lost the use of said office space while having to expend moneys to maintain it.

While we recognize it, we do not pass upon the issue of whether Squires actually stated a cause of action against Georgia-Pacific. Plaintiff, Squires, asserted a cause of action based on its having to retake ownership and possession of the unit. On the assumption that this complaint does state a cause of action, we find a total failure of proof to connect the alleged breach of warranty to the damages complained of. The damages previously outlined were all specifically and directly related to the retaking and reselling of the unit by Squires, but the proof showed that Squires retook the unit voluntarily and not under any legal compulsion. There was no attempt whatsoever to prove that Squires was legally compelled to act as it did. We find this to be an essential element of the cause of action. The trial court should have directed a verdict for Georgia-Pacific because there was simply no connection between the damages and the breach of warranty. In short, Squires never attempted to show it had to take the unit back. There is also a total lack of any logical connection between the difference in sales prices on the first sale and the second sale, and the defective paneling. It was absolutely uncontested that the decline in the value of the unit on the open market was not due to the paneling which at the time of the second sale had become completely acceptable. Apparently, the real estate market changed, but not due to the paneling. We are perplexed at the allowance, over defendant’s objection, of the mortgage payments made by Squires as a recoverable element of damages to Squires. If Squires paid the mortgage on property which it owned, this increased Squires’ equity in the property, and when it was resold, should have resulted in a greater net cash amount to Squires. Allowing this element of damages constituted an erroneous duplication.

Notwithstanding other strong arguments on the asserted errors which might be made, we conclude the allegations of paragraph 9 were essential to the assumed cause of action stated in the complaint. Since there was no proof of these allegations, the trial court erred in failing to direct a verdict in favor of Georgia-Pacific. We have been directed to no case specifically on point and rely, for this decision, upon the general authority that a plaintiff must present evidence in support of each essential allegation in the complaint in order to avoid a directed verdict sought by a defendant. See Marcano v. Puhalovich, 362 So.2d 439 (Fla. 4th DCA 1978), dismissed, 365 So.2d 714 (Fla.1978), and Shidiam Corp. v. M and D Research Corp., 374 So.2d 553 (Fla. 4th DCA 1979).

In the non-jury case designated as Case No. 74-2721, Georgia-Pacific appeals the court’s judgment of $10,436 in favor of De Santis and the judgment on the indemnity cross-claim of $10,436 plus attorneys’ fees of $2,637 in favor of Squires. De San-tis’ theory of liability against Georgia-Pacific was breach of implied warranty under the Uniform Commercial Code. De Santis asserted the same theory of liability against Squires, but it appears that the Uniform Commercial Code did not technically apply to Squires because it was not a merchant dealing in paneling. See Section 672.104(1), Florida Statutes (1977). Nevertheless, the cause of action stated appears cognizable under Florida law extending an implied warranty of merchantability to purchasers of new condominiums where the item in question is an integral part of the condominium. Gable v. Silver, 258 So.2d 11 (Fla. 4th DCA 1972), cert. discharged 264 So.2d 418 (Fla.1972).

Squires’ theory of recovery on the cross-claim against Georgia-Pacific was indemnity; that is, if it was liable to De Santis, then Georgia-Pacific was liable to Squires and additionally responsible for Squires’ attorneys’ fees. Squires also occupies the position of an appellant in seeking to overturn the trial court’s judgment of $10,436 in favor of De Santis and against Squires in the non-jury action.

We conclude the judgment against Georgia-Pacific and in favor of De Santis is erroneous and must be reversed. As with the preceding point, once again, there is no legal connection between the breach of warranty and the damages complained of. The evidence of De Santis’ damages was admitted over objection and has been previously stated in. detail. It includes the elements of (1) increased interest, (2) moving expenses, (3) increased closing costs, (4) time and trouble spent in solving the problem, and (5) business losses.

There was no connection between the paneling and De Santis’ purchase of a new unit twice as large as the original unit. Assuming, without deciding, that the purchase of a comparable new unit was required, this clearly did not authorize buying one twice as large and twice as expensive and charging Georgia-Pacific with all of the additional expenses connected with the new unit. The higher interest on the higher mortgage debt was not attributable to the paneling. The cost of the first unit was slightly over $60,000 and the cost of the second unit was $130,000. De Santis sought to recover its increased closing costs attributable to the second purchase. It would appear that the increase in closing costs was due to the increase in the cost of the unit, which had absolutely nothing to do with the paneling. Further, the item of $1,766 for time and trouble which De Santis and his staff spent in trying to solve the paneling problem is simply not a compensable item of damages in a claim for breach of warranty evolving under contract law. The plaintiff had a separate item of $7,500, for loss of income to its business and may not also recover for the time and trouble expended in attempting to solve the problem. We thus find the court erred in admitting and considering the various elements of damages, and reverse the final judgment against Georgia-Pacific and in favor of De Santis.

We turn now to the question of the court’s failure to consolidate the various claims and splitting of causes of action. This issue is raised by Georgia-Pacific in both appeals. Although we readily concede it is much easier to view this question from hindsight, we conclude that the trial court did err in failing to consolidate the claims of the various parties for determination before a single fact finder. The claims of Squires against Georgia-Pacific as asserted in its direct suit against Georgia-Pacific should not have proceeded separately before different fact finders. The damages sought by De Santis and by Squires against Georgia-Pacific were clearly related to each other. All of the claimed damages by both De Santis and Squires were inextricably intertwined with the agreements between De Santis and Squires regarding the retaking and resale of the first unit by Squires and the sale and purchase of the old and new units by De Santis. The claims of each are dependent upon the contractual obligations between these two parties. The law of this State generally provides that all damages accruing to a party as a result of a single wrongful act must be claimed and recovered in one action or not at all. This rule is designed to prevent a multiplicity of suits. Gaynon v. Statum, 151 Fla. 793, 10 So.2d 432 (1942). It is extremely difficult to map out precisely which claims were properly asserted by which party against which other party in the various capacities occupied in the two different suits. We conclude that all of the injuries to the various parties herein grew out of a single transaction; therefore, all parties’ claims should have been consolidated and considered before a single fact finder. Consequently, the trial court abused its discretion in denying the motions to consolidate. This unfortunate occurrence resulted in a miscarriage of justice which can only be corrected by remand for a new trial on the issues remaining between the De Santis law firm, Squires, and Georgia-Pacific.

We frankly admit that we do not attempt to solve all of the problems presented by these cases. The issues are established from the pleadings and these must be totally redrafted upon remand for a new trial which we require herein. These claims are circumscribed and limited to the claims and theories of recovery asserted in Circuit Court Case No. 74-2721. A new trial is not required in Circuit Court Case No. 74-2779.

The final judgments below are reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

CROSS, SPENCER C., and SMITH, CHARLES E., Associate Judges, concur.

      . The first unit was designated as Unit IE and the second as Units 2J and 2K.

      . In asserting entitlement to the damages, counsel for De Santis on appeal urges this court to adopt a rule totally doing away with any distinction between tort and contract.

      . The complexity of the matter is demonstrated by the following chronological list of all of the briefs filed in this consolidated appeal.
      (1) Georgia-Pacific’s main brief (appellant)
      (2) Georgia-Pacific’s amended brief (appellant)
      (3) Squires’ answer brief (appellee)
      (4) Georgia-Pacific’s reply brief (appellant)
      (5) Squires' initial brief (appellant)
      (6) Georgia-Pacific’s initial brief (appellant)
      (7) De Santis & Cook’s answer brief (appellee)
      (8) Squires’ reply brief (appellant)
      (9) Squires’ answer brief (appellee)
      (10) De Santis’ answer brief (appellee)
      (11) Squires’ supplemental brief (appellee)
      (12) Georgia-Pacific’s reply brief to Squires’ supplemental brief (appellant)
      As indicated by this list, the matter has grown overly-complex. The pleadings in the trial court and the briefs before this court have done little toward the end of simplifying and clarifying the issues.


author: HOBSON, Judge.

text:
    John V. CRAWFORD as Personal Representative of the Estate of Vernetta Foster Crawford, Deceased, Stanley K. Foster, Jr., Robert J. Foster, Mureen F. Moore, Dale E. Foster, Jacqueline E. Nagel and Harriet E. Brooks, Appellants, v. GULF CITIES GAS CORP., a Foreign Corporation, Appellee.
    No. 80-162.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 1980.
    Rehearing Denied Sept. 23, 1980.

      Larry G. Rightmyer, St. Petersburg, for appellants.
    Irene H. Sullivan of Harris, Barrett & Dew, St. Petersburg, for appellee.
   HOBSON, Judge.

Appellee (lessee) Gulf Cities Gas Corp. filed a complaint for declaratory judgment against appellants (lessors) seeking a determination of the parties’ rights and responsibilities under paragraph 4 of a lease agreement executed in 1955 between appellee’s predecessor lessee and appellants’ ancestors. The pertinent paragraph of the original lease agreement provides:

4.THE LESSOR SHALL HAVE THE RIGHT ON ONE YEAR’S WRITTEN NOTICE AND BY BUYING FOR CASH THE BUILDINGS THE LESSEE MAY ERECT AT THE COST OF THE BUILDINGS WHICH HAVE NOT YET BEEN DEPRECIATED AT THE TIME OF NOTICE, TO TERMINATE THE LEASE. THE COST OF THE BUILDINGS WILL BE DETERMINED BY THE FIXED IMPROVEMENTS OF THE BUILDINGS BUT WILL NOT INCLUDE OFFICE FIXTURES, COUNTERS, SHELVING, REMOVABLE PARTITIONS OR ANY FEATURES SPECIALIZED FOR THE LESSEE’S USE. THE LESSEE AGREES TO BUILD A MASONRY AND STEEL BUILDING WITH FIRE RESISTANT WALLS EXCEPT FOR SOME INTERIOR PARTITIONS WHICH MAY BE CONSTRUCTED OF FRAME TO COST NOT LESS THAN FIFTY THOUSAND DOLLARS ($50,000.00). FOR THE PURPOSE OF THIS AGREEMENT, THE RATE OF DEPRECIATION WILL BE BASED ON FORTY YEAR LIFE. THE LESSEE FURTHER AGREES TO PAY ALL TAXES AND ASSIGNMENTS DURING THE TERM OF THIS LEASE.

After a nonjury trial, the court rendered a final declaratory judgment holding that the improvements erected on the subject property by the original lessee are trade fixtures which can be removed from the property by appellees. We reverse.

Prior to June 10, 1955, appellants’ ancestors owned the subject parcel of real property. They formed a corporation for the sale of propane gas and leased the real property to the corporation for $12,000 per year. The original lease agreement was for a period of ten years with a renewal option for an additional 15 years. The lessee corporation erected an office building on the property. Subsequently, appellants’ ancestors sold the corporate stock to the present stockholders of appellee Gulf Cities Gas Corp. Appellee exercised its renewal option in 1965, thus extending the period of the lease to June 10, 1980.

At trial, appellee presented one witness, Mr. Birnbaum, President of Gulf Cities Gas Corp., who testified that at the time he bought the controlling interest in that corporation he understood that the lease required the lessors to purchase the building from the corporation at the natural termination of the lease. Appellants presented no evidence at trial, although in his answers to interrogatories, appellant John Crawford stated that paragraph 4 was included in the lease to cover the possibility of early termination by the lessors.

Appellee has referred us to the case of Wetjen v. Williamson, 196 So.2d 461 (Fla. 1st DCA 1967), for the proposition that the intent of the parties to the lease is the controlling factor in determining whether structures placed upon the land by the tenant remain chattels. We agree that this test is of critical importance. The problem here lies in the fact that no evidence of any kind was presented to the trial court as to the intent of the original parties to the lease in 1955. None of the parties or witnesses involved in the instant cause were' present at the time of execution, and Mr. Birnbaum did not acquire his interest in Gulf Cities Gas Corp. until some time after the lease agreement was executed. Testimony relating to his understanding of the effect of paragraph 4 is irrelevant to show the intent of the original parties.

We interpret paragraph 4 to provide for reimbursement of the lessee for the building in the event the lessors terminate the lease prior to its natural termination date. The lessors would have been obligated to purchase the building at a price to be determined by specified formula only in the event they chose early termination.

In view of the above, we refer to the general rule governing such matters which provides:

In the absence of statute or of an agreement between the parties, there is no obligation on the part of the lessor to pay the lessee for improvements erected by the latter upon the demised premises, even though the improvements are such that by reason of their annexation to the freehold they become a part of the realty and cannot be removed by the lessee.

49 Am.Jur.2d § 777 at 718.

We cannot agree with the trial court that a 10,000 square foot masonry building constructed on a solid concrete slab is a removable trade fixture.

For these reasons, we reverse the holding of the final declaratory judgment.

REVERSED.

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


author: HERSEY,-Judge. ANSTEAD, Judge,

text:
    Betty Jean RAY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1823.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.

      Joseph Jordan, of Bailey & Jordan, P.A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marc E. Kirk, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY,-Judge.

While on probation appellant was stopped for driving without a proper license and for infraction of a traffic ordinance. The arresting officer found cocaine in a pocket of appellant’s coat. A motion to suppress the evidence so obtained in a probation revocation hearing was denied.

We are asked to reverse on the basis of the exclusionary rule.

The applicable safeguards of the federal constitution, embodied in the Fourth and Fourteenth Amendments, buttressed by the court-created exclusionary rule, offer no solace to appellant. Those federal jurisdictions which have considered the issue have uniformly refused to exclude evidence in probation revocation hearings which might well be considered to have been illegally obtained for purposes of a new criminal action. See, for example, United States v. Brown, 488 F.2d 94 (5th Cir. 1973) and United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970).

We turn, then, to a consideration of this issue in the context- of Florida Jurisprudence. In Croteau v. State, 334 So.2d 577 (Fla.1976), our Supreme Court reviewed the federal authorities and held that:

[WJhile evidence obtained in violation of the Fourth Amendment may be admissible against the probationer at a revocation hearing, such evidence cannot constitutionally be admitted at a criminal trial.

The issue of whether or not this rule obtains under the Florida Constitution was not specifically addressed by the court in that case.

In Grubbs v. State, 373 So.2d 905 (Fla.1979), the Florida Constitutional provision was brought squarely into focus. Discussing Article I, Section 12 of the Florida Constitution, it was noted that the Florida provision

is an express constitutional exclusionary rule as distinguished from the federal rule which exists by case decision. As a consequence, in Florida for evidence derived from a search or seizure to be admissible in either probation revocation proceedings or a new criminal action, the evidence must be properly or reasonably obtained given the circumstances . . .

The test for admissibility then, under the Florida Constitution, is not whether the evidence is being offered in a revocation proceeding or a criminal trial, but rather whether the evidence was “properly or reasonably obtained” under the circumstances.

One of the circumstances to be taken into account may be the fact of probation itself. Grubbs v. State, supra; Croteau v. State, supra. However, in the present case, the record does not reflect that the searching officer was aware of appellant’s probationary status. He reached into appellant’s pockets, after appellant had emptied them pursuant to his request, and found the contraband. He had no reason to believe that appellant had a weapon and admittedly was “just exploring.” Under these circumstances the evidence was not properly or reasonably obtained and the judgment must therefore be reversed.

The trial court revoked appellant’s probation for this and other charges. The record and evidence as to these other charges has apparently been either lost or destroyed and neither party’s statement of the evidence has been approved by the trial court as required by Rule 9.200(b)(3), Florida Rules of Appellate Procedure.

Accordingly, this cause is remanded to the trial court with directions to conduct another hearing on those charges filed against appellant not pertaining to the evidence obtained by virtue of the illegal search.

REVERSED AND REMANDED WITH DIRECTIONS.

FAGAN, OSEE R., Associate Judge, concurs.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

In this case the trial court ruled that the evidence in question was seized as a result of an illegal search conducted in violation of the appellant’s federal and state constitutional rights under the Fourth Amendment of the United States Constitution and Article I, Section 12 of the Florida Constitution. However, relying upon the case of Croteau v. State, 334 So.2d 577 (Fla.1976), the trial court ruled that the exclusionary rule, by which illegally seized evidence is deemed inadmissible in criminal proceedings, did not apply to probation revocation proceedings. This court has previously reached the same conclusion in Kinzer v. State, 366 So.2d 874 (Fla. 4th DCA 1979). At issue now is whether the subsequent decision rendered in Grubbs v. State, 373 So.2d 905 (Fla.1979) requires a different result.

The actual ruling in Croteau, supra, was that illegally seized evidence was not admissible in a criminal trial even though the defendant, from whom the evidence was seized, was also a probationer at the time of the seizure and the seizure was made by a probation supervisor. In rather explicit dicta the majority opinion in Croteau indicated that the exclusionary rule did not apply to probation revocation proceedings. Justice Hatchett, in a special concurrence, noted that it was not necessary to decide whether evidence seized in violation of Article I, Section 12 must be excluded from probation hearings. And Justice Overton, in a dissent, stated that he believed the search and seizure, since it was conducted by defendant’s probation supervisor, was reasonable and the evidence should be admitted at the criminal trial as well as any probation hearings:

The majority holds the search by a supervising probation officer is unreasonable to the extent it is used to charge a new criminal offense but reasonable when used to revoke probation. The purpose of the exclusionary rule is to prevent illegal conduct by law enforcement officers. I fail to see the logic in the view expressed by the majority. What is legal and proper to revoke probation should also be legal to charge a new criminal offense. The trial court’s denial of the motion to suppress was correct, and its decision should be affirmed. 334 So.2d at 581

Based on the explicit dicta in the majority opinion of Croteau, this court subsequently held that the exclusionary rule did not apply to probation revocation proceedings and illegally seized evidence was admissible therein. Kinzer, supra.

The precise holding in Grubbs, supra, was that a unilaterally imposed condition of probation requiring a probationer to submit to searches by any police officer at any time was violative of a probationer’s constitutional rights. However, Justice Overton, writing for a unanimous five member panel of the court specifically discussed the use of evidence in probation violation proceedings. The discussion characterized the holding in Croteau as authorizing a probation officer to enter upon the living quarters of his probationer and to conduct a warrantless search, the fruits of which would be admissible in a revocation proceeding but not a criminal trial.

Justice Overton’s discussion on the use of evidence in revocation proceedings refers to the federal decisions which hold that the exclusionary rule does not apply to revocation proceedings. Then the opinion appears to distinguish the federal law from the Florida law as follows:

Article I, section 12, of the Florida Constitution, prohibiting unreasonable searches and seizures, is more restrictive than its federal counterpart contained in the fourth amendment to the United States Constitution. The Florida Constitution provides:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. . . . Articles or information obtained in violation of this right shall not be admissible in evidence. The last sentence is an express constitutional exclusionary rule as distinguished from the federal rule which exists by case decision. As a consequence, in Florida for evidence derived from a search or seizure to be admissible in either probation revocation proceedings or a new criminal action, the evidence must be properly or reasonably obtained given the circumstances and the responsibilities of the probation supervisor or a law enforcement official who makes the search and seizure. 373 So.2d at 909

In my view this constitutes a rather express conclusion that evidence not properly or reasonably obtained would be inadmissible in a probation revocation proceeding. This view is strengthened by other language in the same discussion on the use of evidence in revocation proceedings which states that

The search of a probationer’s person or residence by a probation supervisor without a warrant is, in our view, a reasonable search and absolutely necessary for the proper supervision of probationers. However, granting such general authority to law enforcement officials is not permissible under the search and seizure provisions of the Florida or United States Constitutions. 373 So.2d at 909

The test for admissibility then, under the Florida Constitution as construed in Grubbs, is not whether the evidence is being offered in a revocation proceeding or a criminal trial, but rather whether the evidence was “properly or reasonably obtained” under the circumstances.

As to the case at hand it is clear that the evidence was not obtained pursuant to a reasonable search. The record does not reflect that the arresting officer was even aware of the fact that appellant was on probation. The fact of probation played no role in the search and there are no circumstances reflected in the record otherwise justifying a search. At the suppression hearing the state informed the trial judge that the evidence had already been suppressed in the separate criminal proceedings involving the illegal drugs. Further, the state did not contest the fact that the search was unreasonable but rather contended only that the exclusionary rule did not apply to revocation proceedings. In short, everyone was in agreement in the proceedings below that the search was unreasonable and illegal. The only issue was the applicability of the exclusionary rule. The appellant took the position that Article I, Section 12 required exclusion of the evidence. Based on the decision in Croteau, supra, the trial court disagreed. But Justice Overton’s statements in Grubbs quoted, supra, clearly appear to set out a different test requiring that the evidence be “reasonably obtained” before admission is authorized.

Even if the police officer knew that the appellant was a probationer, such fact would not render the search involved herein a reasonable one. To so hold would be to rule that whenever a known probationer is stopped for a traffic offense or any other legal infraction, however minor, he may also be subjected to a search. I do not believe that is a result envisioned by the court in Grubbs or by the drafters of Article I, Section 12. Rather, as Section 12 states and Justice Overton pointed out, evidence obtained as a result of an unreasonable search is not admissible in evidence. There are no limitations appearing on the words “in evidence,” and in view of the Grubbs decision it would appear that articles unreasonably seized would not be admissible in evidence in any legal proceeding, including probation revocation proceedings.

      . See footnote *, Hatchett, Justice, concurring, Croteau v. State, 334 So.2d 577, 580-581 (Fla. 1976).

      . The officer was aware that appellant had been arrested and convicted some two years earlier.


author: ORFINGER, Judge.

text:
    Sarkis ACOPIAN and Bobbye Acopian, Appellants, v. James A. HALEY, George L. Williams and Michael D. Bodne, Appellees.
    No. 79-381/T4-414.
    District Court of Appeal of Florida, Fifth District.
    Sept. 3, 1980.
    Rehearing Denied Sept. 25, 1980.

      Sam Daniels of Daniels & Hicks, Miami, and Ralph Geilich of Williams & Geilich, Melbourne, for appellants.
    Edward J. Richardson of Saxon & Richardson, P. A., Melbourne, for appellees.
   ORFINGER, Judge.

Appellees became owners in 1970 of four lots in a fourteen lot ocean-front subdivision. The deed to their predecessor in title, recorded in 1944, contained the following restrictive covenant:

Lot's 24 to 37 inclusive of this subdivision are restricted as follows: One dwelling, which may be a duplex, with a garage to each lot. The garage may be a garage apartment. Dwelling to cost a minimum $1500.00. Building to be placed at least fifteen feet back from the North, South and West lines. No building to be placed nearer the Ocean than 210 feet from the West line of the lot. All lots in this addition are restricted to residential use only.

Appellees’ deed was made subject to these restrictions.

In 1978, desiring to build a 44-unit condominium project on these four lots, appellees filed this action for declaratory judgment, naming the owners of the remaining lots as defendants, and seeking a declaration that the restrictive covenants were no longer valid. Appellants contested the action. Of the remaining defendants, one filed an answer consenting to the removal of the restriction and the others did not appear.

The evidence at trial reflects and the trial court found, that of the fourteen oceanfront lots in the subdivision, eight were vacant and unimproved (appellees’ lots included) and six had residences constructed thereon. Of the latter, one residence was apparently being used also as a real estate office without objection by the residents. Appellants’ lot was located immediately adjacent to the proposed condominium project. The court found from the evidence that appellants had a substantial home on their property and that the proposed condominium project would not depreciate their property; that appellees’ property, consisting of approximately 400 feet of frontage, was worth considerably more than the investment cost if the restrictions were valid, and would have an even higher value if the restrictions were invalid. The court further found that there had been material changes in the character of the neighborhood in other adjacent subdivisions, that the zoning of the subject subdivision had been changed to medium density residential which would permit the proposed condominium project; that the subject subdivision was suitable for construction of one or two-family residential units but “the highest and best use of Lots 24-27 would be for medium density residential as zoned . . The court concluded that “the past and continuing changes in the area of this property since imposition of the restrictions (and even since plaintiffs obtained title) render the continued enforcement of the restrictions inequitable and they should be removed.”

Appellants contend that the trial court erred in considering changes in the character of the neighborhood prior to the time appellees acquired their property and that it applied the wrong rule of law in determining that the restrictions were no longer valid. We agree and we reverse.

With respect to appellants’ contention that the court erred in relying on changes in the neighborhood which occurred prior to appellees’ ownership of the property, it- is clear that he did. The case law seems to say that the court cannot consider changes which occur prior to the acquisition of title by one who seeks to remove the restrictions. Allen v. Avondale Co., 136 Fla. 6, 185 So. 137 (1938). However, many of the changes in the surrounding neighborhood occurred after appellees acquired title, so any error in considering prior changes is harmless.

Where no termination date is specified, the test for determining the continued validity of restrictive covenants in the face of a challenge is whether or not the original purpose and intention of the parties to such covenant can be reasonably carried out, in the light of alleged material changes which are claimed to have effectually frustrated their object without fault or neglect on the part of the one who seeks to be relieved of their observance. Barton v. Moline Properties, Inc., 121 Fla. 683, 164 So. 551 (1935). It is said that this doctrine rests on the principle of contract law known as discharge of contractual obligation by frustration of contractual object. Osius v. Barton, 109 Fla. 556, 147 So. 862 (1933); 88 A.L.R. 394.

Changes take place in Florida every day, and if mere change in neighborhoods alone was sufficient to invalidate restrictive covenants, none would remain. However, not only must there be a showing of material change in the character of the neighborhood of the subject land, the changes must be such as materially affect the restricted land and frustrate the object of the restrictions. Allen v. Avondale Co., supra. Where the restriction is for the benefit of and is still of substantial value to the dominant lot, notwithstanding the changed condition of the neighborhood in which the lot is situated, a court of equity will restrain its violation. Barton v. Moline Properties, Inc., supra.

There is no showing or finding by the court that the many changes in the character of the surrounding neighborhood had materially affected the subject subdivision or frustrated the purpose of the restrictions. All the changes had taken place in other subdivisions. All of the lots in the subject subdivision which are improved have residences on them. The one residence also used as a real estate office at the southern end of the tier of oceanfront lots does not appear to be such a substantial violation as to authorize the cancellation of the restrictions. The evidence clearly shows that appellees’ lots are worth considerably more now than they were when purchased in 1970, even as restricted, and the trial court properly found that the lots are very well suited to the restricted uses. Any adverse effect on the property resulting from changes in the character of other lands outside the subdivision is clearly not shown, nor is there any change in the subject subdivision itself.

We recognize the principle that an appellate court should not substitute its judgment for that of the trier of fact who sees and hears the witnesses, and we have not disagreed with or altered any of his findings. We do, however, have the obligation to correct an erroneous application of those findings to the law as it exists. The trial court found that the highest and best use of appellees’ property would be the proposed condominium use, but while this may be a good test in other situations, it is not the correct test in determining continued validity of restrictive covenants. Zoning changes are not conclusive of changed conditions, but are merely evidence to be considered along with other evidence to determine whether or not the changed conditions are such as to make ineffective the original purpose of the restrictions. Wahrendorff v. Moore, 93 So.2d 720 (Fla. 1957). There was no finding below that the changed conditions in the neighborhood made ineffective the original purposes of the restrictions or that the affected land would suffer adversely if the restrictions were not cancelled. Conversely, the evidence and the court’s findings clearly show that the land can be and is effectively being used for the restricted purposes and that it has increased in value as restricted.

The final judgment is reversed and this cause is remanded for entry of judgment for appellants.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.

      . The logic of this and similar holdings has been questioned because the focal point in the determination should be whether the intent of the original parties and their purpose in restricting the land have been frustrated by a change in conditions, not who owns the parcel sought to be relieved of the restrictions at the time the action for removal is filed. § 11.12, Florida Real Property Practice Ill, The Florida Bar, C.L.E. (2d Ed. 1976).

      . We agree with the statement by Justice Brown in the concurring opinion in Allen v. Avondale Co., 136 Fla. 6, 185 So. 137 (1938): “As to the changes wholly outside of the restricted area, these will not authorize a court of equity to cancel or refuse to enforce the covenants, unless the influence of the changes upon the restricted area are such as to clearly neutralize the benefits of the restrictions to the point of defeating the objects and purposes of the covenants. . .


text:
    BANK OF OKLAHOMA, N. A., Formerly National Bank of Tulsa, a National Banking Association, Appellant, v. LITTLE JUDY INDUSTRIES, INC., a Florida Corporation, and Allan H. Applestein, Individually, Appellees.
    No. 79-1834.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 1980.

      Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and R. Ben-jamine Reid, Miami, for appellant.
    Tew & Spittler and Jeffrey Allen Tew, Miami, for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN (Ret.), Associate Judge.

The appellant, Bank of Oklahoma, was the plaintiff in an action to recover on notes executed by appellee Little Judy Industries and guaranteed by appellee Allan H. Apple-stein. The notes had been secured by a chattel mortgage upon a 240 Convair executive aircraft. The aircraft was sold at a private sale pursuant to the mortgage and this action was to recover the balance allegedly due. Little Judy Industries was dismissed from the action and the trial court entered summary judgment against Applestein. Upon appeal of the summary judgment this court reversed upon a holding that there was genuine issue of material fact as to whether the sale of the airplane was conducted in a commercially reasonable manner. See Applestein v. National Bank of Tulsa, 358 So.2d 106 (Fla. 3d DCA 1978). Following a trial the court found that the collateral was not disposed of in a commercially reasonable manner and entered final judgment for Applestein and Little Judy. This appeal by the Bank of Oklahoma is from that judgment. The appellees have filed a cross appeal claiming error in the taxation of costs.

The appellant’s statement of the point involved claims that the finding of the trial court that the disposal of the collateral was not made in a commercially reasonable manner is (1) erroneous as a matter of law, and (2) against the manifest weight of the evidence. The relevant findings of the trial judge as set out in the judgment are:

* sfc »(« He *
“. . . the Plaintiff repaired the plane and flew it to Tulsa, Oklahoma sometime in September or October, 1973; the Plaintiff listed the plane for sale with an airplane broker; the plane was sold by contract dated February 6, 1974 for $80,-000.
“3. The Plaintiff presented no evidence as to what the broker did to try and sell the plane, i. e. the manner in which he conducted the sale.
“4. The Plaintiff is not under any duty to put the plane into top notch condition regardless of cost. In order to collect a deficiency, the Plaintiff (secured party) need only prove the sale was conducted in a reasonably commercial manner in an attempt to obtain the best possible price; however, it is not required that the best price was in fact obtained for the collateral. When reasonableness of sale is challenged the burden of proof is on the secured party (the Plaintiff herein). Dynalectron Corporation v. Jack Richards Aircraft Co., 337 F.Supp. 659 (W.D. Okl., 1972). First National Bank and Trust of Enid v. Holston, 559 P. Rpt. 2nd 440 (S.Ct.Okl.1977).
“5. The fact that the Plaintiff made repairs to the plane and listed it for sale and sold it though a broker is not sufficient proof, without more, that the broker in fact sold the plane in a reasonable, commercial manner. The Court cannot assume or speculate as to what the broker did in an attempt to sell the plane or whether the broker did the things required to be done for the plane to be sold in a commercially reasonable manner as required by Section 679.9-504 and 679.9-507, Florida Statutes. The Court further finds no evidence to support Count III of the Amended Complaint.”

The Bank urges first that the finding of the trial court is against the manifest weight of the evidence in that the use of a broker is reasonable as a matter of law. Section 679.507, Florida Statutes (1977) (Section 9-507 U.C.C.) obligates a secured party to dispose of collateral in a commercially reasonable manner. The Code does not define what is commercially reasonable but some guidelines may be ascertained from the Code. See Sections 679.-504; 679.507(2), Florida Statutes (1977). The Bank argues that having employed a broker knowledgeable in selling aircraft, they have discharged that obligation. The trial judge rejected this simplistic solution in this case and for this expensive item because there was no evidence from the broker as to how he proceeded and how his procedure in this case corresponded to the generally accepted practice in that field of commercial endeavor. We hold that the trial judge’s decision was not against the manifest weight of the evidence and he may not be reversed on that basis.

We have examined the record in the light of the Bank’s argument that the price obtained was fair even if the procedure was not approved and hold that reversiole error is not demonstrated.

Appellant’s second point claims error in the court’s ruling on an evidentiary matter. It is claimed that a photocopy of a page purportedly taken from a “Trade-A-Plane” magazine was erroneously excluded. There was no evidence to tie the ad on the page to this transaction or the plane in litigation. No error is shown. See Cone v. Benjamin, 157 Fla. 800, 27 So.2d 90 (1946); Lindsey v. Commercial Discount Co., 12 Cal.App.2d 345, 55 P.2d 896, 898 (1936); 32 C.J.S. Evidence § 726 (1964).

A much closer question is presented by Appellant’s third point; that is, whether the court, after having made its finding that the Bank had not carried its burden of proving that the sale of the collateral was carried out in a commercially reasonable manner, should have allowed the parties to offer proof as to the fair value of the collateral and thereupon entered a judgment for the deficiency, if any, between the debt and the fair value of the collateral. There are two views of this matter. One, as advocated here by the appellee, holds:

“In general, under the Uniform Commercial Code, courts have held that where there is improper disposition by the secured party, or a sale under circumstances that are not ‘commercially reasonable,’ the secured party loses his right to a deficiency judgment. It has also been held that a guarantor is relieved of his obligation upon such an improper sale. Moreover, where no resale is made, the right to collect further on the indebtedness is lost. 69 Am.Jur.2d Secured Transactions § 622, pgs. 529-530.”

The appellee cites First National Bank and Trust of Enid v. Holston, 559 P.2d 440 (Okl. 1977) and Dynalectron Corporation v. Jack Richards Aircraft Co., 337 F.Supp. 659 (W.D.Okl., 1972) as having followed this rule.

The appellant asks this court to follow a series of cases exemplified by Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538, 541 (1966) which held:

“We do not agree with his contention that the bank’s failure to give him notice of the intended sale completely discharged his obligation. For the most part the Code follows the theory formerly applicable to mortgages, by which the debtor was entitled to any surplus realized upon foreclosure and was liable for any deficiency. Section 85-9-504(2). The Code also provides that if the secured party has disposed of the collateral in a manner not in accordance with the Code ‘any person entitled to notification * * has a right to recover from the secured party any loss caused by a failure to comply’ with the provisions of the Code.
* s}c s}t * !jt
“We think the just solution is to indulge the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law. The extent to which the penalty set'out in § 85-9-507(1) may be applicable in the case at bar is an issue that may depend upon the further development of the proof.”

It is our view that the rule as followed in Norton v. National Bank of Commerce, supra, and applied in Investors Acceptance Co. v. James Talcott, Inc., supra, is the rule which we ought to follow. It achieves a fair and commercially workable result without the imposition of a penalty which is not prescribed by statute. See Pass and Walker, Deficiency Judgment in Florida After a Commercially Unreasonable Sale of Collateral, 52 Fla.Bar.J. 720 (1978).

Accordingly, this cause is remanded for the sole purpose of determining the fair market value of the airplane at the time of its repossession from the defendant and the amount, if any, of the deficiency between that value and the amount of the indebtedness. This deficiency, of course, may not exceed the difference between the debt and the actual sale price. Judgment shall be entered for the deficiency if such is proved.

The cross appeal as to costs does not present error.

Affirmed in part; reversed in part and remanded for further proceeding in accordance with the holding herein set forth.

      . It appears on this appeal that the National Bank of Tulsa is now the Bank of Oklahoma N.A.

      . Little Judy had been again added to the action by an amended complaint.

      . No Florida case on point has been cited or found.

      . Reliance is placed upon Allis-Chalmers Corp. v. Davis, 37 N.C.App. 114, 245 S.E. 566 (1978).

      . See First National Bank and Trust of Enid v. Holston, infra.

      . See e. g. Baker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968); Investors Acceptance Co. v. James Talcott, Inc., 454 S.W.2d 130 (Tenn.App.1969); Carter v. Ryburn Ford Sales, Inc., 248 Ark. 236, 451 S.W.2d 199 (1970); Cornett v. White Motor Corporation, 190 Neb. 496, 209 N.W.2d 341 (1973); Savings Bank of New Britain v. Booze, 34 Conn.Sup. 632, 382 A.2d 226 (1977); Associates Financial Services Co., Inc. v. DiMarco, 383 A.2d 296 (Del.Super.1978); Associates Capital Services v. Riccardi, 408 A.2d 930 (R.I.1979); Valley Min. Corp., Inc. v. Metro Bank, 383 So.2d 158 (Ala.1980).


text:
    COORDINATED CONSTRUCTORS, etc., et al., Appellants, v. FLORIDA FILL, INC., Appellee.
    No. 79-2357.
    District Court of Appeal of Florida, Third District.
    Sept, 9, 1980.
    Ruden, Barnett, McClosky, Schuster & Russell and Glenn N. Smith and Robert A. Plafsky, Fort Lauderdale, Bradford, Willi-mas, McKay, Kimbrell, Hamann, Jennings & Kniskern and Patricia H. Thompson, Miami, for appellants.
    Kavanaugh & Leiby and Larry R. Leiby and David R. Elder, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Appellants, the general contractor and its surety, seek reversal of a money judgment entered in favor of appellee as lienor in a direct action against a payment bond furnished by appellants, pursuant to Section 713.23, Florida Statutes (1977).

Appellants complain of the trial court’s order which denied their motion for a change of venue to Broward County. On the merits, the appellants complain of the trial court’s failure to accord them the defense of “proper payments.” We find that the trial court correctly resolved these issues and affirm the judgment.

Appellant, Coordinated Constructors Corporation (Coordinated), is a Florida corporation with its principal place of business in Broward County. It was the general contractor for the Town and Country Shopping Center in Davie. Appellant, American Manufacturers Mutual Insurance Company (American), is a foreign corporation authorized to conduct business and write surety bonds in Florida. Coordinated entered into a series of subcontracts with Heathwood, Inc. During the progress of construction, Heathwood, Inc. ordered -certain rental equipment from appellee, Florida Fill, Inc. (Florida Fill), with which to perform its various subcontracts. Florida Fill is a Florida corporation with its principal place of business in Dade County. Heathwood, Inc. ultimately abandoned work on the project. This forced Coordinated to remedy defects existing in work already performed by Heathwood, Inc., as well as to complete the unperformed portions of Heathwood, Inc.’s contracts. The cost to Coordinated in curing and completing Heathwood, Inc.’s default exceeded the original contact price agreed to by Coordinated and Heathwood, Inc.

VENUE

Florida Fill, as lienor, commenced this action against Coordinated and American in Dade Circuit Court. Coordinated and American filed a motion to dismiss for improper venue, seeking to transfer the cause to Broward County on the allegation that Coordinated’s business situs was in Broward County and that the cause of action accrued there.

The proper application of the controlling venue statute, Section 47.051, Florida Statutes (1979), has been the source of considerable litigation, especially in contract actions. A cause of action for breach of contract accrues in the locale where the defendant fails to perform its contract. M. A. Kite Co., v. A. C. Samford, Inc., 130 So.2d 99 (Fla. 1st DCA 1961). In this case, the performance required under the contract was the payment of money. Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934). Since no place for payment was specified in the bond, payment was due where the creditor resides because, in such an instance, the debtor must seek the creditor. Croker v. Powell, supra; M. A. Kite Co. v. A. C. Samford, Inc., supra. As stated, the performance called for in the instant case is the payment of money. Coordinated, being the debtor, was required to seek out Florida Fill, the creditor.

A general contractor’s bond, furnished pursuant to Section 713.23, Florida Statutes (1977), is a payment bond and not a performance bond, the latter of which is intended to ensure the physical completion of the work upon default. Guin & Hunt, Inc. v. Hughes Supply, Inc., 335 So.2d 842 (Fla. 4th DCA 1976). Judge Downey clarified this distinction in American International Food Corporation v. Lesko, 358 So.2d 250 (Fla. 4th DCA 1978) where he stated:

The general rule providing for venue in the county of the residence of the creditor where the claim is for a specific sum of money and no place of payment is stipulated is usually linked to situations where the default involves an omission to pay a certain sum of money which is due or already earned, [citation omitted] However, if the claim is for failure to perform under the contract and the performance was to take place elsewhere, that rule does not apply, [emphasis original]

358 So.2d at 252.

Appellants’ reliance upon James A. Knowles, Inc. v. Imperial Lumber Company, 238 So.2d 487 (Fla. 2d DCA 1970), is misplaced. In that case, the performance called for by the contract was in the nature of the performance of services and there was no debtor-creditor relationship involved.

Both the appellants and the appellee call our attention to the case of District School Board of Pasco County v. Gulf Contracting, Inc., 337 So.2d 1036 (Fla. 2d DCA 1976). That case, brought under a payment bond, is more favorable to the appellee’s position. There, the breach that occurred was nonpayment of money and no place of payment had been specified. Therefore, payment was due and owing to the creditor at the situs of its principal place of business. The creditor was a non-resident corporation and the defendant was not amenable to suit in its out-of-state principal place of business. The lienor was therefore relegated to bring the action against the general contractor in its principal place of business under Section 47.051, supra, on a holding that had the suit been brought against the defaulting subcontractor, rather than the contractor, the venue would have also been elsewhere.

Finally, appellants rely upon our decision in American Fidelity Fire Insurance Company v. Allied General Contractors, Inc., 365 So.2d 442 (Fla. 3d DCA 1978) which we find is not on point because there a performance bond and not a payment bond was involved.

Consequently, we find no error in the trial court's order denying appellants’ motion for change in venue from Dade to Broward County.

PROPER PAYMENTS DEFENSE

Upon recording of the notice of commencement, pursuant to Section 713.13, Florida Statutes (1977), and compliance with the requirements of Section 713.06, Florida Statutes (1977), an owner may make payments to lienors under direct contracts for amounts due and may deduct such payments from the balance due to the contractor under a direct contract. Payments made in accordance with the above cited sections allow an owner to assert the defense of proper payments and limits the owner’s liability as set forth in Section 713.-06, Florida Statutes (1977).

Appellants correctly argue that an owner's liability to all lienors may not exceed the contract price fixed between the owner and the general contractor. Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla.1972); Bryan v. Owsley Lumber Company, 201 So.2d 246 (Fla. 1st DCA 1967). Appellants also correctly argue that the effect of the payment bond furnished by the general contractor and the surety, pursuant to Section 713.23, Florida Statutes (1977), “is to exempt the owner’s property from lien foreclosure and substitute the security of the bond in lieu thereof.” Guin & Hunt, Inc. v. Hughes Supply, Inc., supra, at 844. Accord, Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976).

Further, the appellants make the plausible argument that because they are in privity with the owner, they are entitled to the same defenses that the owner could raise. We recognize that this is a cogent and rational argument but find that it must fail in view of the proper construction of Part I, Chapter 713, Florida Statutes (1977). The terms “owner” and “contractor” are separately and distinctly defined by Section 713.01(2) and 713.01(12). Section 713.06(3), Florida Statutes (1977) only authorizes an “owner” to assert the proper payments defense. We find nothing in Section 713.-23(1), Florida Statutes (1977) [which affords a lienor a direct action against the bond] which grants the defense of proper payments to the general contractor and its surety.

Appellee suggests various appealing reasons for the legislative distinction. We find it unnecessary to embrace these because we hold that the plain and unambiguous manner in which the mechanic’s lien law has been structured only authorizes the defense of proper payments to be afforded to the owner.

For the foregoing reasons, the decision of the trial court is hereby affirmed.

      . Heathwood, Inc. is a Florida corporation with its principal place of business in Dade County. Although it was joined as a defendant, service of process was never perfected against it and consequently it was dropped as a party in the trial court.

      . 47.051 Actions against corporations.-Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.