text:
    Henry P. HARRISON, Appellant, v. Mary BAKER, Appellee.
    No. 80-1848.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 21, 1981.

      Greenfield & DuVal and Harvey DuVal, North Miami, and J. Robert Miertschin, Jr., Fort Lauderdale, for appellant.
    Malea & Prager and Ramon Malea, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

Defendant/seller Harrison appeals from an order of the Circuit Court of Dade County, Florida granting plaintiff/buyer’s request for specific performance of a contract for the sale of a residence. The trial court’s order clearly recites the facts adduced and relief obtained:

FINAL JUDGMENT
This cause came on to be heard before this court for trial without a jury and the court having heard and received evidence and argument of counsel on July 2, 1980 and July 29, 1980, the court is now prepared to rule and enter this opinion and final judgment in this cause.
Findings of Fact
1. This court has jurisdiction over the parties and the subject matter hereto.
2. On or about the 29th day of September, 1978, the Plaintiff and Defendant entered into a contract for the purchase by the Plaintiff of a home and real estate owned by the Defendant and located in Dade County, Florida.
3. The contract, which was admitted into evidence, was in writing and duly witnessed and acknowledged.
4. The contract provided for, inter alia, the remedy of specific performance, court costs and attorney’s fees for the purchaser in the event the transaction was not closed due to wrongful actions of the seller.
5. The court finds that a closing date of January 16,1979 was set by the parties and that the subject transaction was not closed on said date due to the actions of the Defendant.
6. The court finds that the Defendant’s failure to close was wrongful and without legal justification.
7. The court finds that the Plaintiff was ready, willing, and able to close the said transaction on January 16, 1979.
8. The court finds that the Plaintiff has duly performed all the conditions of the contract on her part except insofar as she has been prevented, by the acts of the Defendant, from proceeding to a closing on said transaction.
9. The court finds that the Defendant has wrongfully retained possession of the subject property from January 16, 1979 through the present time.
10. The court finds that the subject property had a fair rental value of from $300.00 to $325.00 monthly for the year 1979 and a fair rental value of from $400.00 to $425.00 monthly for the months of 1980 to date.
11. The court finds that the Plaintiff deposited $2,000.00, pursuant to the contract, with the brokerage agent of the seller and this deposit is still in the possession of the seller’s agent.
12. The court finds that the equities are with the Plaintiff and against the Defendant. The Defendant has not done equity and is therefore before the court with unclean hands. The Plaintiff is entitled to the relief she has sought.
13. The court finds that while a dispute arose between the parties, prior to January 16, 1979, concerning a potential defect in the title to said property, the Plaintiff was at all times material hereto, ready and willing to accept the property “as is” and was ready, willing and able to close the subject transaction on January 16, 1979 in an “as is” state.
Conclusions of Law
14. There was a valid contract, binding upon the Plaintiff as buyer and the Defendant as seller for the purchase and sale of the property in question.
15. The Plaintiff has proven her case by clear and convincing proof and has proven the contract and its terms by competent and satisfactory proof which is clear, definite and certain.
16. The Plaintiff has proven, by clear and convincing proof, that she was, at all times material hereto, ready, willing and able to close the subject transaction.
17. The court holds that the Defendant shall be and is obligated and required to convey the subject property to the Plaintiff for the contract price less the Plaintiff’s $2,000.00 deposit being held by the Defendant seller’s brokerage agent, less court costs of $769.35, less an attorney fee to the Plaintiff’s attorneys of $4,000.00, less an additional sum of $4,000.00 as and for damages, less the balance of the existing mortgage. The ultimate cash to close this transaction shall be further adjusted pursuant to any other charges and prorations to be made pursuant to the contract.
18. The court holds that the Defendant is obligated to pay a reasonable attorney’s fee to the Plaintiff or on behalf of the Plaintiff to the law firm of Malea and Prager and said sum shall be $4,000.00.
19. The court holds that the Plaintiff is entitled to damages from the Defendant for the fair rental value of the property since January 16, 1979 and after receiving evidence on July 2, 1980 and July 29, 1980 as to the Plaintiff’s damages and any set-offs to which the Defendant is entitled including loss of interest on the purchase price monies and reduction of mortgage principal both since January 16, 1979, affixes said damages in the sum of $4,000.00 which amount shall be offset against the purchase price.
20. The court holds that the Plaintiff incurred taxable costs of $769.35 due to the wrongful acts of the Defendant resulting in this litigation.
21. The court holds the Plaintiff is not estopped by her actions from seeking and receiving specific performance under the doctrine of estoppel and this defense raised by the Defendant is rejected.
22. The court holds that the defense of unclean hands on the part of the Plaintiff is insufficient and is hereby rejected on the basis of the facts presented.
23. Relative to the Defendant’s defenses of estoppel and failure of the Plaintiff to close within sixty days from delivery, by the Defendant, of the abstract, the court finds and holds that the facts do not warrant the application of either defense as against the Plaintiff’s claim. The overwhelming weight of evidence supports the conclusion that there was a bona fide dispute between the Plaintiff buyer’s attorney and the Defendant seller’s attorney as to a potential cloud on the title to the real estate. Further, that the Defendant seller’s attorney acknowledged said potential title defect. Further, that the Defendant seller’s attorney did not clear up this potential title defect, but that the Plaintiff buyer’s attorney made it clear to the Defendant seller’s attorney, within the contract period, that the Plaintiff desired to close and would accept the property even with the potential defect in the title.
It being the judgment of this court that the Plaintiff has proven her case by clear and convincing proof and that the manifest weight of the evidence is against the Defendant as set forth above, it is;

Ordered and Adjudged as follows:

1. The Defendant shall close the subject transaction with the Plaintiff on August 15, 1980 at 3:00 p. m. at the law offices of Malea and Prager.
2. The purchase price of $37,000.00 shall be offset by the following items and amounts:
a. Balance of the existing mortgage.
b. The deposit paid to and held by the seller’s brokerage agent in the sum of $2,000.00.
c. Taxable and costs hereby taxed in the sum of $769.35.
d. Attorneys fees in the sum of $4,000.00.
e. Damages in the sum of $4,000.00.
3. The purchase price shall be further reduced and/or increased by those charges and prorations as called for in the contract.
4. The court hereby enters judgment in favor of the Plaintiff and against the Defendant pursuant to the findings of fact and conclusions of law and judgment be and the same is hereby entered for all relevant sums for which let execution issue.
5. The court retains jurisdiction of this cause for the purpose of making such further orders and judgments as may be necessary and proper to enforce the terms of this judgment.
Done and Ordered in Chambers in Miami, Dade County, Florida this 11 day of August, 1980.

Appellant first contends that specific performance should not have been granted because the buyer did not validly tender the purchase price within the date set for closing, and the contract for sale made time of the essence. We disagree. The record conclusively establishes that appellant’s own conduct prevented the closing from taking place as scheduled, thereby entitling appellee to the relief of specific performance. A vendor cannot take advantage of a delay in performance which he himself has fostered. Forbes v. Babel, 70 So.2d 371 (Fla.1953). Additionally, appel-lee’s failure to physically tender payment on the day of the closing is not fatal to a grant of specific performance, particularly since appellant was not present on the appointed day. In order to obtain specific performance of a land contract, the “purchaser must either pay the contract sum; tender it; establish that he is ready, willing and able to do so; or establish that he has been excused from so doing.” Horwitz v. Grovpac, Inc., 286 So.2d 576, 577 (Fla.3d DCA 1973), cert. denied, 293 So.2d 365 (Fla.1974); Glave v. Brandlein, 196 So.2d 780, 781 (Fla. 4th DCA 1967). The trial court’s finding that appellee was, at all times material, ready, willing, and able to close the subject transaction on January 16,1979, the date set for closing, is amply supported by the record and establishes the necessary condition precedent to specific performance of the contract.

Appellant also argues that appellee was awarded full damages without proper adjustment of the equities between the parties. We find that appellant has not demonstrated reversible error as to the court’s ruling. Moreover, it appears from the trial court’s conclusions of law that the appellant’s damages were considered, since the court allowed for a set-off.

The trial court’s order is affirmed in all respects.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Effie CULMER and Cameron Culmer, her husband, Appellees.
    No. 80-2130.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.

      Vernis, Bowling, West, Montalto & Goodman and R. David Donlin, Miami, for appellant.
    Fromberg, Fromberg & Roth and Jeffrey Michael Cohen, Miami, for appellees.
    Before BARKDULL and FERGUSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   MELVIN, WOODROW M. (Ret.), Associate Judge.

In November, 1978, plaintiff Effie Cul-mer was injured in a motor vehicle accident while in the course and scope of her employment with the Florida Department of Health & Rehabilitative Services (the Department), who paid medical and compensation benefits on her behalf. Mrs. Culmer and her husband, Cameron, brought suit against the other parties involved in the accident. Ultimately, a $21,600 settlement was entered into among the various parties. Prior to this settlement, the Department, as Mrs. Culmer’s employer/carrier, filed a Notice of Lien for Payment of Compensation and Medical Benefits. Following the settlement, the Culmers moved for a determination of equitable distribution.

At the time of the hearing on this motion, the Department had paid $9,438 in medical and compensation benefits on behalf of Mrs. Culmer. (At a subsequent clarification hearing, the Department informed the court that it had paid another $3,000 in compensation benefits.) The Culmers’ net recovery from the $21,600 settlement, after deducting attorney’s fees and costs, was $12,260. The order of equitable distribution entered by the trial court awarded the Department $500 in satisfaction of its $9,438 lien and denied the Department recovery for any future compensation benefits that it should pay.

The Department has appealed, and the Culmers have cross-appealed, from the order of equitable distribution, with the Department contending that it should not have been limited to a $500 recovery, and with the Culmers contending that the applicable statute, Section 440.39(3)(a), Florida Statutes (1977), is unconstitutional, that no equitable distribution should have been awarded to the Department and that they (the Culmers) should have been awarded attorney’s fees. Upon due consideration, we hold that the provisions of Section 440.-39(3)(a), Florida Statutes (1977), mandate a 100% recovery to the Department, and that there is no merit to the Culmers’ contentions on cross-appeal.

Section 440.39(3)(a), Florida Statutes (1977), states:

* * * Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his dependents, which said notice shall be recorded and the same shall constitute a lien upon any judgment recovered to the extent that the court may determine to be their pro rata share for compensation benefits paid or to be paid under the provisions of this law. The employer or carrier shall recover from the judgment, after attorney’s fees and costs incurred by the employee or dependent in that suit have been deducted, 100 percent of what it has paid and future benefits to be paid, unless the employee or dependent can demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be upon the employee. * * * ,.

The clear wording of the statute provides for full recovery to the Department (after deducting the employee’s attorney’s fees and costs) for any benefits “ ... paid and future benefits to be paid ...” Also, the burden of proof is placed upon the employee to “ ... demonstrate to the court that he did not recover the full value of the damages ...” In the present case, the Cul-mers have not demonstrated that they did not receive the full value of their damages. Accordingly, it was error not to provide full recovery to the Department. See Ramar-Dooley Construction Company v. Norris, 341 So.2d 546 (Fla. 2d DCA 1977).

Having determined that the Department should have received full recovery, we need not comment on the Culmers’ contention on cross-appeal that it was error to award any equitable distribution to the Department. We also find no basis for the Culmers’ further contention that Section 440.39(3)(a), Florida Statutes (1977), is unconstitutional as applied to the facts of this case. See The Insurance Company of Texas v. Rainey, 86 So.2d 447 (Fla.1956). Finally, on the question of the failure to award an attorney’s fee to the Culmers, Section 440.-39(3)(a), Florida Statutes (1977), does not authorize such an award. See Universal Engineering Corporation v. Cartier, 380 So.2d 1160 (Fla. 3d DCA 1977). In addition, even though the Department was awarded far less than it was seeking in equitable distribution, nonetheless, it was unquestionably the prevailing party by virtue of securing a $500 award.

Accordingly, (a) we hereby reverse the appealed order, with directions to the trial court to provide for a 100% recovery to the Department for past and future medical and compensation benefits paid on behalf of Mrs. Culmer, up to the net amount the Culmers received from the judgment, and (b) we affirm the cross-appeal.

      . Mr. Culmer sought damages for loss of consortium as a result of his wife’s injuries.

      . Pursuant to the settlement, an order of dismissal was entered by the trial court.

      . The Department’s alternate argument that the formula in National Ben Franklin Insurance Company v. Hall, 340 So.2d 1269 (Fla. 4th DCA 1976), should have been utilized to determine the amount of equitable distribution to be awarded is inapplicable in light of our determination that the statutory provisions for 100% recovery are controlling in this case.


author: BASKIN, Judge.

text:
    Milton RUDOLPH, et al., Appellants, v. TITLE & TRUST COMPANY OF FLORIDA, and Dade Commonwealth Title & Abstract Company, Appellees.
    No. 80-2259.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 11, 1981.

      Joseph S. Paglino, Miami, for appellants. Lewis H. Fogle, Jr. and Richard M. Gale, Miami, for appellees.
    Before BARKDULL, SCHWARTZ, and BASKIN, JJ.
   BASKIN, Judge.

We affirm the Final Judgment entered by the trial court subsequent to the direction of a verdict in favor of appellees. Appellants purchased leasehold estates in condominium units at the Eastern Shores White House. Their purchases and the nature of their interests were evidenced by documents they signed including “Formal Purchase Agreement and Receipt”, condominium deed, and “Acknowledgment and Acceptance by Grantee.” In each of these documents, appellants acknowledged by their signatures that they accepted leasehold titles to condominium units upon land which was the subject of a ninety-nine year lease to the developer. The Declaration of Condominium also reflected the ninety-nine year lease.

In a class action, appellants sought to collect damages for breach of title insurance policies which insured fee simple interests in the condominium units.

Appellants, having purchased leaseholds, were insured only against defects in their title to the leaseholds. The title insurance company that issued the insurance upon purchase should have been aware from public records that leaseholds and not fee simple interests were obtained by the purchasers, but through inadvertent error, the title insurance company misstated the interests it insured. Furthermore, the policy excluded loss or damage by reason of the original ninety-nine year lease from Gladys Goldman as trustee-lessor to Milton F. Stein-hardt as lessee.

Appellants were not induced to purchase their properties by the title insurance they later obtained. The purpose of the insurance is to indemnify an insured against loss through defects of title to purchased property. See 9 Appleman, Insurance Law and Practice, § 5201 at 1 (1981); 18 Fla.Jur., Insurance § 13 (1971). Appellants’ claims were not predicated upon defects in title but upon the failure of the title insurance company to produce fee simple title. The title insurance company had no obligation to produce or indemnify fee simple title and was therefore entitled to directed verdict.

Upon consideration of the appeal and cross-appeal, we affirm the trial court’s decision.

      . During the jury trial, appellees sought a directed verdict. At the close of the evidence, the trial judge indicated that he had decided to grant the directed verdict but would permit the jury to decide the case so that in the event of reversal he would not be forced to retry the matter. The jurors returned a verdict for appellants in the sum of $2,380,000.


author: DANIEL S. PEARSON, Judge.

text:
    MIAMI-DADE WATER AND SEWER AUTHORITY, Appellant, v. INMAN, INC., a Florida corporation, Appellee.
    No. 81-405.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1981.
    Rehearing Denied Sept. 11, 1981.
    Worley & Gautier and Henry H. Har-nage, C. Jan Strayhorn, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Rubin & Rubinchik, Hollywood, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Inman, Inc., a contractor, entered into contracts with Miami-Dade Water and Sewer Authority, an agency of Dade County, Florida, under which Inman was to install wastewater force mains (sewer pipes). After Inman completed the project, it sued the Authority for additional moneys, alleging, inter alia, that the project drawings supplied to it by the Authority were in many instances in error as to the location of existing utilities or failed to show existing utilities, which resulted in Inman incurring additional costs due to delay and extra work. The Authority admitted these allegations, but denied liability, relying in part on a provision of the contracts which stated:

“Information shown on the Drawings as to the location of existing utilities has been prepared from the most reliable data available to the Engineer. This information is not guaranteed, however, and it shall be this Contractor’s responsibility to determine the location, character and depth of existing utilities. He shall assist the utility companies, by every means possible to determine said locations and the locations of recent additions to the systems not shown. Extreme caution shall be exercised to eliminate any possibility of any damage to utilities resulting from his activities. The location of all overhead utilities shall be verified and the Engineer notified of any conflict which might occur. The Contractor shall be responsible for determining which poles will need shoring during excavation and shall provide such shoring and support as is required.”'

The trial court granted a summary judgment determining the issue of liability in favor of Inman. It found, sub silentio, the Authority’s admission of errors in the plans respecting the utilities eliminated all genuine issues of material fact and that, as a matter of law, the Authority could not rely on the disclaimer in the foregoing provision of the contracts or any exculpatory clauses found elsewhere in the contracts. We reverse.

The quoted provision of the contract between Inman and the Authority does not represent that the location of existing utilities is as shown on the plans. It simply represents that information pertaining to location “has been prepared from the most reliable data available to the Engineer.” The fact, then, that the location is not as shown does not result in the Authority’s liability unless the disclaimer is one that is, as the trial court implicitly found, inoperative as a matter of law.

Inman argues that United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918), and United States v. Atlantic Dredging Company, 253 U.S. 1, 40 S.Ct. 423, 64 L.Ed. 735 (1920), and their progeny in this state, Jacksonville Port Authority v. Parkhill-Goodloe Co., Inc., 362 So.2d 1009 (Fla. 1st DCA 1978), and Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978), stand for the proposition that admonitory, exculpatory or disclaimer clauses in agreements between a governmental authority and contractors are invalid. We disagree. The holdings of this line of cases relied on by Inman are, instead, that such admonitory, exculpatory or disclaimer clauses which require the contractor, e. g., to examine the site, to check the plans, and to assume responsibility for the work, will not be allowed to defeat or overcome a contractor’s justifiable reliance on an express or implied warranty or representation made by the contracting authority. Thus, the rule of Spearin, et al. is that a contractor is relieved from the impact of such contract clauses only when it is first misled. If, however, there is no misleading, a disclaimer or like clause, not invalid per se, see C.A. Davis, Inc. v. City of Miami, 400 So.2d 536 (Fla. 3d DCA 1981) (Case No. 80-693, opinion filed June 23, 1981), may be interposed to negate the liability of the contracting authority. On the record now before us the only representation said to have been made by the Authority is that the information on the plans concerning existing utilities was prepared from the most reliable data available to the Engineer. It is neither alleged nor made to appear that that representation was false or misled Inman, or that other representations were made, or information withheld, which might preclude the Authority from further reliance on the disclaimer.

Reversed and remanded.

      . Three counts relating to three separate but identical contracts covering different areas are the only counts of Inman’s multicount complaint involved in this appeal.

      . In Jacksonville Port Authority v. Parkhill-Goodloe Co., Inc., supra, the port authority withheld from prospective bidders information known to it that another dredging contractor, in an adjacent area, had encountered extensive rock in dredging to the required depth. In Town of Longboat Key v. Carl E. Widell & Son, supra, a report supplied by the town wrongfully represented that the area where the lift station was to be built could be kept dry during construction by pumping the water out. In United States v. Atlantic Dredging Company, supra, the boring samples supplied were accompanied by an expression of belief and conduct confirming that expression that the samples were accurate and the foundation reliable. In United States v. Spearin, supra, the contract itself which prescribed the character, dimensions, and location of the sewer imported a warranty that if the specifications were complied with, the sewer would be adequate. In each of these cases the contractor was misled by affirmative misrepresentations or conduct, or by withholding of available information, preventing the other party from reliance on the exculpatory clause or disclaimer. Concededly, when the true state of affairs materially differs from the represented state of affairs, the contractor will be entitled to recover under a usual “changed conditions clause,” Town of Longboat Key v. Carl E. Widell & Son, supra. But such a clause is triggered only where an inaccurate representation is relied on, not where there has been no representation, or, as in Bumby & Stimpson, Inc. v. Peninsula Utilities Corporation, 169 So.2d 499 (Fla. 3d DCA 1964), the contractor relies on its own inadequate investigation.


author: HURLEY, Judge.

text:
    Michael Jerome JUDD, Appellant, v. STATE of Florida, Appellee.
    No. 80-167.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 23, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Michael Judd appeals a robbery conviction and an order revoking probation. He asserts that his trial was fatally tainted by the introduction of evidence of an imper-missibly suggestive pre-trial photographic show-up. We agree and, therefore, reverse.

Appellant was charged with robbery. Since the same alleged conduct also constituted the gravamen of a probation revocation charge, he stipulated to a unified trial and probation revocation hearing which resulted in guilty verdicts from the jury and from the judge. Consequently, the trial court revoked his probation and imposed two concurrent sentences of six months to seven years. From these sentences, Mr. Judd appeals.

Appellant’s claim for relief rests upon the trial court’s admission into evidence of a photographic show-up and the testimony accompanying it. To understand the significance of this evidence, the factual background of the case must be explored.

On the evening of June 21, 1979, John Shapin was tending bar at his tavern in West Palm Beach. Business was slow and Mr. Shapin was alone watching television. At about 10:30 p. m. he saw three males standing in the tavern’s rear doorway. One of the three, dressed in a red shirt and brown pants, stepped inside and spoke briefly with Mr. Shapin. The other two, who were both bare-chested and dressed in shorts or cutoffs, remained near the door. At the conclusion of the conversation, the three males departed together. Mr. Shapin returned to his stool to watch television.

Approximately fifteen minutes later, Mr. Shapin noticed someone running along the outside of the bar. At that point, another person, grabbed him from behind and yanked him off the stool. As Mr. Shapin was pulled backwards to the floor by his unseen assailant, another person came over the bar and knelt over Mr. Shapin, helping to hold him down. Shapin was face to face with this person and later described him as being a black male, about five feet ten inches tall, weighing approximately 180 pounds, bare-chested and well muscled, wearing knee length cut-off shorts. Mr. Shapin remembered that his assailant’s hair was braided in several small braids and that his nose was very wide and flat. While pinned, Shapin was relieved of his wallet and the cash register was rifled with approximately one hundred eighteen dollars stolen. After the robbers departed, Mr. Shapin called the police and described the robber he saw as noted above.

Approximately one week later two plainclothes police officers came to the tavern and handed Shapin a stack of seven photographs. They asked him if he could recognize any of the people in them. All of the photographs depicted black males in their late teens or early twenties, but only two were of individuals with braided hair, and only one — the defendant’s picture — portrayed a bare-chested individual with braided hair. Shapin immediately selected the defendant.

At trial, Mr. Shapin, over defense counsel’s objections, again identified the defendant’s picture as portraying the robber who knelt over him. However, Shapin made no in-court identification. Detective Roy We-inbrenner of the West Palm Beach Police Department provided the linking testimony that established that the picture Mr. Shapin selected was that of the defendant, Michael Judd. Mr. Judd presented an alibi defense, which, though not controverted by cross-examination, was obviously disbelieved by the jury.

We begin our analysis by recalling that the United States Supreme Court, in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), cited with approval Wall’s Eyewitness Identification in Criminal Cases wherein it was noted that “ ‘[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor — perhaps it is responsible for more such errors than all other factors combined.’ ” 388 U.S. 218, 229, 87 S.Ct. 1926, 1933. To avoid the hazard of misidentification, the Court fashioned a two-prong test to evaluate allegations of an impermissibly suggestive pre-trial identification procedure. The first step of the inquiry is a factual determination of whether the police employed an unnecessarily suggestive procedure to obtain the out-of-court identification. If the procedure is found to have been too suggestive, the second step is to ask whether, in light of all of the circumstances, there was a substantial likelihood of misidentification. In this respect, a number of factors may be considered. Among them are the opportunity of the witness to observe the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ pri- or description of the criminal; his degree of certainty at the confrontation; and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Grant v. State, 390 So.2d 341 (Fla.1980).

With these principles in mind and after careful consideration of all the facts in the instant case, we believe that the pre-trial photographic array was impermis-sibly suggestive in its singular depiction of Judd as the only person who was both bare-chested and had braided hair. Furthermore, the suggestiveness of the show-up was not vitiated by some other circumstance which would have reduced the ‘substantial likelihood of misidentification.’ Mr. Shapin’s observations of his assailant were short-lived and made in a moment of fear and uncertainty. The tavern was dimly lit. Shapin had been working for some twelve hours and had consumed at least two beers earlier in the afternoon. His description of his assailant was very general and though there is an implication that the robbers were the same individuals who had visited the tavern previously, Shapin was never able to state this fact with certainty. Finally, the prosecution made no attempt to have Mr. Shapin make an in-court identification, the clear implication being that he could not do so.

In a recent case, the United States Court of Appeals for the Fifth Circuit dealt with a similar situation when it reversed a conviction of attempted bank robbery based on a suggestive photographic display. The court found that the witness’ inability to make an in-court identification was a significant factor which had to be considered in assessing the degree of harm. The court held:

In cases such as Manson and Hudson courts have relied upon clear and positive in-court identifications by the witnesses as an important factor to show the reliability of suggestive photographic displays. In those cases the witnesses were exposed to suggestive displays only before trial as a means of preparing for a later in-court identification. In this case the improper photographic display constituted the witness’ only identification of the defendant at the trial itself.

United States v. Cueto, 611 F.2d 1056, 1064 (1980). Like Cueto, the instant case has no in-court identification to bolster the reliability of the suggestive out-of-court identification.

Having reversed the appellant’s conviction based on our view that the photographic show-up was impermissibly suggestive and not surrounded by circumstances vouching for its reliability, we also reverse his revocation of probation. Brown v. State, 312 So.2d 528 (Fla. 1st DCA 1975); Plummer v. State, 365 So.2d 1102 (Fla. 1st DCA 1979). The State attempts to distinguish these cases from the one at bar, noting that the revocations involved in them were based on nolo contendere and guilty pleas by the defendants rather than convictions. The Fifth District Court of Appeal, however, states that “if a revocation is based solely on a conviction and that conviction is subsequently reversed, the revocation must also be reversed.” Stevens v. State, 397 So.2d 398 (Fla. 5th DCA 1981). In the instant case it is clear appellant’s revocation hinged upon his conviction at trial. Indeed, appellant stipulated that the trial was to act as his revocation hearing. Though it is true, as the State has noted by citing Russ v. State, 313 So.2d 758 (Fla.1975), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975), that “the ultimate facts necessary to convict for a criminal offense and the ultimate facts necessary to establish a violation of probation are not the same,” logic and justice combine in this case to mandate a reversal of the revocation of appellant’s probation.

Accordingly, we reverse and remand for a new trial and a new probation revocation hearing.

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


author: GLICKSTEIN, Judge.

text:
    Marshall SAGER, Appellant, v. Samuel TURNER, et ux., Appellees.
    No. 80-592.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 18, 1981.
    Jeff Tomberg of Law Offices of Tomberg & Tomberg, P. A., Boynton Beach, for appellant.
    Stanley Cheff of Richard S. Thayer, P. A., Boca Raton, for appellees.
   GLICKSTEIN, Judge.

This appeal from a final summary judgment attacks the underlying order granting appellees’ motion for summary judgment and denying appellant’s similar motion. We affirm the judgment on the issue of liability but reverse on the determination of the amount of damages.

On March 3,1978, the parties entered into a deposit receipt contract by which appellant agreed to sell his mobile home park in Boynton Beach to appellees. The contract contained the following clauses:

4. This contract is contingent upon the Purchasers being able to obtain all necessary permits and licenses to operate the facility including but not limited to the Palm Beach County Occupational License, the Boynton Beach Mobile Home License, and the State of Florida Hotel and Restaurant License.
5. Seller warrants that at the time of closing there are no violations of licenses, permits, planning or zoning ordinances, easements land or deed restrictions.

The transaction closed on May 1, 1978, and the following day appellees applied for the required licenses, including an occupational license from the City of Boynton Beach. Licenses from the State of Florida and Palm Beach County were obtained without incident. The City of Boynton Beach, however, issued a conditional license, contingent upon appellees’ repair of all mechanical, electrical and plumbing violations which existed. Appellee made the required repairs and brought this action to recover its expenditures in so doing.

Appellant argues that this case should be governed by the decision in Fraser v. Schoenfeld, 364 So.2d 533 (Fla. 3d DCA 1978). In that case the parties’ contract for the purchase of an apartment house contained the following clause:

8. Seller further states that there are no code violations of the City of Miami Beach or the County of Dade.

Before closing the purchaser discovered what he believed to be violations of the city’s building and zoning regulations. When he informed the sellers of his intention not to close because of the violations, the sellers threatened with legal action. The transaction was thereupon closed and the deed and possession were delivered. Shortly thereafter the city’s building officials discovered substantial and numerous defects in the building. The Third District Court of Appeal held:

We hold that where, as here, the purchaser has knowledge of claimed violations and, thereafter, closes the deal, he is precluded by the doctrine of merger from a subsequent suit on a covenant contained in the contract of sale. See the rule of law in Volunteer Security Co. v. Dowl, 159 Fla. 767, 33 So.2d 150, 151 (1947); and Stephan v. Brown, 233 So.2d 140, 141 (Fla. 2d DCA 1970).

Id. at 534.

The present case is distinguishable from Fraser v. Schoenfeld, supra, in two respects. First, the record does not disclose that ap-pellees knew of the violations but closed despite them. Second, the language of paragraph 4 in the contract here plainly survived the closing; and so did the language of paragraph 5 insofar as the obtaining of those licenses after the closing depended upon the absence of violations. Consequently, we believe that the instant case falls within the exceptions to merger. See Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967), where the court said:

It is a general rule that preliminary agreements and understandings relative to the sale of property usually merge in the deed executed pursuant thereto. 33 FlaJur., Vendor and Purchaser, Sec. 95; 10 FlaJur., Deeds, Sec. 151. However, there are exceptions to the merger rule. The rule that acceptance of a deed tendered in performance of a contract to convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance.

See also Campbell v. Rawls, 381 So.2d 744, 746 (Fla. 1st DCA 1980).

The only proof offered by either party in support of the respective motions for summary judgment being the deposition of Mr. Turner, it is uncontradicted that the city license could not be obtained because of violations which existed at closing. The trial court was therefore correct in its entry of summary judgment in favor of the purchasers on the issue of liability.

The damages award, however, is not fully supported by the evidence. During the deposition of Mr. Turner, counsel for appellant introduced as an exhibit a one page summary prepared by counsel for ap-pellees. The summary consisted of a compilation of bills in the sum of $7,914.23 incurred by appellees in the repairs required by the City. Mr. Turner further testified to an additional bill of $599. None of the figures was disputed as to their accuracy and the adequacy and admissibility of the proof were not raised at the trial court. Therefore, the evidence will support an award of $8,513.23 plus costs as stated in counsel’s affidavit of $134.50. We do not know how the trial court arrived at a damages figure of $8,626.54 plus costs. Accordingly, we affirm the entry of summary judgment on the issue of liability but reverse as to the amount of damages and remand with directions to enter judgment for appellees in the sum of $8,513.23 plus costs of $134.50.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


author: PER CURIAM.

text:
    Penny Baker CAPPAR, Appellant, v. Richard Michael CAPPAR, Appellee.
    Nos. 80-1754, 80-1755.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 24, 1981.
    Foley & Colton, P. A., and Edna L. Caruso, West Palm Beach, for appellant.
    Charles W. Musgrove and J. Ralph Mabie, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment entered after habeas corpus proceedings. The issue presented by the parties for decision by the trial judge was whether an Alabama court order on child custody was valid. The trial court concluded that the Alabama court had jurisdiction when the order was entered. As such the court granted habeas corpus relief to the father and awarded custody to him. We find no error in the trial court's ruling.

This is an unfortunate situation where the parties have been involved in domestic litigation in both Florida and Alabama. Although the parties were divorced in 1974, there has never been a full hearing where either a Florida or an Alabama court considered the best interest of the child as bearing on child custody. This issue was pled in a petition for modification in the Florida court and scheduled for hearing in June, 1977. The same issue was again presented in an Alabama proceeding on which the court scheduled a hearing in August, 1980. Neither hearing ever occurred. The mother now wants the Florida court to decide the issue of child custody, and the father wants the Alabama court to decide it. We conclude that the Alabama court had jurisdiction when it entered the temporary custody order in April, 1979, and the Florida trial court acted appropriately herein in granting habeas corpus relief.

AFFIRMED.

DOWNEY, BERANEK and GLICK-STEIN, JJ., concur.


author: HERSEY, Judge.

text:
    TROPICAL SUPPLY COMPANY, INC., Appellant, v. Raymond VERCHIO, d/b/a R. Verchio & Sons, Appellee.
    No. 80-1868.
    District Court of Appeal of Florida, Fourth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 16, 1981.

      Stephen A. Schorr of Korman & Schorr, Fort Lauderdale, for appellant.
    Welcom H. Watson, Jr., of Watson, Hubert & Clark, Fort Lauderdale, for appellee.
   HERSEY, Judge.

Tropical Supply Company, Inc. appeals from a final judgment in an action brought by it to enforce and foreclose a mechanics’ lien for plumbing supplies sold to Dan-D Plumbing under an oral agreement, which supplies were incorporated by Dan-D into a condominium pursuant to a contract with the builder-owner, Raymond Verchio.

Appellee entered into a contract with Dan-D Plumbing to do all of the plumbing work in connection with the construction of a condominium apartment building. Dan-D then made arrangements with appellant Tropical to furnish the plumbing fixtures and supplies that would be required to perform the contract. The evidence shows that plumbing material charges of approximately $93,000 were posted on the books of Tropical for this project.

During the initial phases of construction Tropical served a Notice to Owner pursuant to Section 713.06, Florida Statutes (1977) to protect itself should it later be found necessary to file a claim of lien. Then, as testified to by George Brownlow, the president of Tropical, another step was taken to protect Tropical’s interests:

Q Fine. All right. How did you receive payment on this job?
A How did we receive payment on the job? Well, let’s see. Well, I’ll tell you. After we filed notice I went out and talked to Mr. Verchio and told him that we — this was our first dealing with Dan, and asked him if he would be so kind as to make joint checks inasmuch as we could see we could collect the money. He agreed to it.
And subsequently, he at times made joint checks and certain other times he did not. But when he did, sometimes he gave those checks to me, and sometimes he gave those checks to Dan-D.

Under this arrangement, joint checks in the approximate total amount of $118,000 were drawn by appellee, endorsed by the joint payees and credited to appellant’s bank account.

Nonetheless, when the plumbing contractor’s services were subsequently terminated by appellee for other reasons and prior to completion of construction, Tropical’s ledger evidenced payment of only $82,000 of the total materials bill of $93,000.

Appellant’s position on appeal as summarized in its initial brief is as follows:

Although Plaintiff [Appellant] complied with the Mechanics' Lien Law in all respects, Defendant [Appellee] completely ignored the Statute. Defendant testified that this was his first project in Florida and that he was totally unfamiliar with the law. The Defendant unquestionably failed to record a Notice of Commencement; failed to ensure that the Plaintiff, a lienor, was paid before the contractor on progress payments; failed to secure a Contractor’s Affidavit prior to making final payments and failed to retain ten percent (10%) of the contract price until the final Contractor’s Affidavit was received.
Plaintiff’s position is that all payments made, whether by joint check or the two payments made directly to the contractor, were improper payments in the context of Section 713.06 and, therefore, do not satisfy Defendant’s obligations to Plaintiff.

The final sentence of appellant’s conclusion illustrates the fallacy of its position. The mechanic's lien law does not purport to change, except in a very limited way, the rights and duties arising out of a sale or a contract to pay money. That law does provide a security device in the form of a mechanic’s lien to secure the payment of sums otherwise due and owing. It further isolates a source of funds for such payment, the balance due under the contract, where improper payments as defined in Section 713.06 have been made. It does not and never was intended to affect the debt itself.

We turn, then, to an appraisal of appel-lee’s position.

In summary, appellee urges that appellant has been paid in full, pointing out that failure of the materialman to apply proceeds from the joint checks first to its own account is imprudent. Further, suggests appellee, this Court should adopt the California rule that a materialman, by endorsing a joint payee check, is deemed to have received the money due him. Post Bros. Construction Co. v. Yoder, 20 Cal.3d 1, 141 Cal.Rptr. 28, 569 P.2d 133 (1977). We need not reach the question of the validity or the desirability of the California rule.

Appellant approached appellee with the request that checks be made payable jointly to Tropical and Dan-D. The specific reason stated was “we could see we could collect the money.” Joint checks properly negotiated exceeded $118,000. The total charges for materials supplied was $93,000. Appellant cannot now require appellee to reimburse it for amounts paid by it out of its own account to Dan-D. We thus agree with appellee that this account was paid in full.

Having decided the matter on that basis we do not consider whether there was or could be a waiver of the requirements of the mechanics’ lien law under these circumstances. There is simply no debt to support a lien on the facts of this case.

Accordingly, we affirm.

AFFIRMED.

LETTS, C. J., and MOORE, J., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    In re the Matter of the Unborn Child of Marine RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1421.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 4, 1981.
    Arlene C. Huszar of Florida Institutional Legal Services, Inc., Gainesville, for appellant.

      Jim Smith, Atty. Gen., and Shirley A. Walker, Asst. Atty. Gen., Tallahassee, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, an inmate at the Florida Correctional Institution in Lowell, Florida, appeals from an order which denied her petition pursuant to section 944.24(2), Florida Statutes (1979), for custody of her then unborn child.

The question is now moot. Section 944.-24(2) was specifically repealed by Chapter 81-15, Laws of Florida (1981) which became effective June 1, 1981.

AFFIRMED.

COBB and SHARP, JJ., concur.


author: COBB, Judge.

text:
    Donald Ellis LOWERY, Appellant, v. STATE of Florida, Appellee.
    No. 81-174.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 2, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

Donald Lowery a/k/a Arthur Moore was tried and convicted of uttering a forged check in violation of section 831.02, Florida Statutes (1979). Lowery raises three points on this appeal of his conviction.

First, Lowery contends that the trial court erred in not allowing him to cross-examine two of the state’s witnesses with regard to a statement made by Lowery at the time of his arrest in a similar uttering of a forged check situation that had been introduced for purposes of identification. Where self-serving declarations do not form a part of the res gestae, they should ordinarily be excluded from a criminal case. Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Watkins v. State, 342 So.2d 1057 (Fla. 1st DCA), cert. denied, 353 So.2d 680 (Fla.1977). Moreover, Lowery did not make any proffer of what the excluded testimony would have been and, therefore, this point has not been properly preserved for appellate review. Ritter’s Hotel v. Sidebothom, 142 Fla. 171, 194 So. 322 (1940); Atlantic Distributors, Inc. v. Alson Mfg. Co., 141 So.2d 305 (Fla.3d DCA 1962).

Second, Lowery contends that the trial court erred in allowing testimony to be introduced regarding Lowery’s failure to appear for the taking of his handwriting samples. During the course of discovery, the state had moved for the trial court to order Lowery to give samples of his handwriting, and the trial court had done so in accordance with Florida Rule of Criminal Procedure 3.220. However, Lowery never complied with the order. Prior to trial, the defense moved in limine to prohibit the state from mentioning the fact that Lowery had been ordered to give his handwriting samples to the state and that he had not done so. The trial court denied the motion. The trial court’s ruling was not in error, since evidence of the refusal to submit to a scientific test is admissible against the accused if the test is both admissible and compulsory. State v. Duke, 378 So.2d 96 (Fla.2d DCA 1979); State v. Esperti, 220 So.2d 416 (Fla.2d DCA 1969).

Third, Lowery contends that the trial court erred in admitting into evidence a photocopy of a photocopy of the original check, which the state had offered in place of the original check since the original had been lost by the police. His argument is two-fold. First, Lowery argues that a check is a negotiable instrument and, therefore, a duplicate of it is not admissible in place of the original pursuant to section 90.953, Florida Statutes (1979), which reads in pertinent part:

A duplicate is admissible to the same extent as the original unless: (1) the document or writing is a negotiable instrument, as defined in section 673.104....

This portion of the above statute was enacted to provide for the introduction of an original negotiable instrument in court in order to prevent its further negotiation. 1 S. Gard, Florida Evidence § 6:04 (1980). Under this rationale, this portion of the statute is meant to apply in civil suits regarding the enforceability of the negotiable instrument and the statute is not meant to apply in criminal cases. Moreover, the statute does not provide that a duplicate of a negotiable instrument would be inadmissible, it only provides that it would not be admissible to the same extent as the original. Second, Lowery argues that the photocopy of the photocopy is not the best available secondary evidence. It is true that former Florida law recognized degrees of secondary evidence. Wicker v. Board of Public Instruction, 159 Fla. 430, 31 So.2d 635 (1947). However, section 90.954, Florida Statutes (1979), abolishes the distinction made between degrees of secondary evidence. Law Revision Counsel note section 90.954; Evidence in Florida § 8.11, The Florida Bar (2d ed. 1978). Therefore, the trial court did not err in admitting a photocopy of a photocopy of the original check.

AFFIRMED.

FRANK D. UPCHURCH, and SHARP, JJ., concur.


author: ORFINGER, Judge.

text:
    TRANS-CONTINENTAL FINANCE CORPORATION, Petitioner, v. Raymond BAXTER, Respondent.
    No. 81-630.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 2, 1981.
    George J. Little of Jim L. Dye, P. A., Tallahassee, for petitioner.
    George E. Hovis, Clermont, for respondent.
   ORFINGER, Judge.

Petitioner requests that we issue a writ of certiorari addressed to the Circuit Court of Lake County which, while sitting as an appellate court, affirmed a judgment of the County Court except as to a portion thereof not questioned in these proceedings.

The Circuit Court’s affirmance was based on the fact that, although a transcript of the trial proceedings could have been made available on appeal, no such transcript was made a part of the appellate record. Thus the court concluded that:

[t]he law is quite clear that an appellate court cannot speculate on the ruling of the trial court and the appellate court will have no choice but to uphold the trial court if an adequate record is not presented on appeal.

citing Lyden v. DePiera, 147 So.2d 573 (Fla. 3d DCA 1963). The court then denied a petition for rehearing and a motion for leave to supplement the record.

The reference in Lyden to the procedure outlined in Moyer v. Moyer, 114 So.2d 638 (Fla. 3d DCA 1959), makes it appear that no transcript could be made available there. But irrespective of that observation, the present appellate rules no longer support that conclusion where a proper record can be made available to the reviewing court. Florida Rule of Appellate Procedure 9.200(f)(2) says:

If the court finds the record is incomplete, it shall direct a party to supply the omitted parts of the record. No proceeding shall be determined because the record is incomplete until an opportunity to supplement the record has been given. (emphasis added).

Petitioner is not entitled to a second appeal and in order to prevail, it must demonstrate that the circuit court, acting in its appellate capacity, exceeded its jurisdiction or departed from the essential requirements of law in its order or proceedings. McGuire v. Nelson, 388 So.2d 42 (Fla. 5th DCA 1980). As in McGuire, the circuit court never reached the merits of the appeal because it failed to provide petitioner, as appellant, the opportunity to supplement the record before reaching its conclusion. By not giving the petitioner the opportunity to have its appeal decided on the merits, the circuit court departed from the essential requirements of law. McGuire, supra.

The order of the circuit court is quashed and the cause is remanded with directions to afford appellant a reasonable opportunity to supplement the record by including therein such portions of the trial proceedings as the circuit court deems essential to a decision on the merits of the appeal.

Order QUASHED and REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.

      . As pointed out in the committee notes to Rule 9.200, Florida Rules of Appellate Procedure, the portion of the Rule alluded to here was not intended to cure deficiencies resulting from the failure to make a record in the lower tribunal, but to give the parties the opportunity to have the appellate proceedings decided on the record before the lower tribunal. See R. W. King Construction Co., Inc. v. City of Melbourne, 384 So.2d 654 (Fla. 5th DCA 1980), and cf, Fuquay v. State, 386 So.2d 1314 (Fla. 5th DCA 1980).


author:
COWART, Judge.
      FRANK D. UPCHURCH, Jr., Judge,

text:
    Barton B. PILCHER, Petitioner, v. L. C. PEEPLES, Regional Supervisor of Department of Professional Regulation; Nancy Kelley Wittenberg, Secretary of Department of Professional Regulation; and State of Florida, Department of Professional Regulation, Respondents.
    No. 80-1091.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 1981.
    Rehearing Denied Sept. 4, 1981.

      Benjamin T. Shuman, Orlando, for petitioner.
    Charles F. Tunnicliff, Asst. Gen. Counsel, and William Furlow, Salvatore A. Carpino, Asst. Gen. Counsels, Dept, of Professional -Regulation, Tallahassee, for respondents.
   COWART, Judge.

ON PETITION FOR WRIT OF PROHIBITION

Barton B. Pilcher petitions this court for a writ of prohibition to prevent the Department of Professional Regulation from proceeding to revoke or suspend his real estate broker’s license.

The department instituted action against Pilcher on February 27, 1980. A hearing officer dismissed the action because the agency had not complied with section 120.-60(6), Florida Statutes (1979):

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49.

In an attempt to comply with this section, the agency issued a proposed administrative complaint and scheduled a conference before a regional supervisor of the department. Pilcher was given notice of this conference and a copy of the proposed complaint. He now seeks to prohibit the agency’s proceeding in this matter, contending that the agency still has not complied with the statute.

Complaints concerning professionals licensed through the Department of Professional Regulation are submitted to the department, which investigates the facts of the complaint. When the investigation is complete, the department submits its investigative findings to the appropriate board, in this case the Board of Real Estate. § 455.225(2), Fla.Stat. (1979). The probable cause panel of the board then determines whether the facts establish probable cause to believe that a violation has occurred. Its recommendation is submitted to the department. If the board has found probable cause, the department may choose to file a formal complaint. If the board finds no probable cause, the department has a limited right to file, notwithstanding the board’s finding. § 455.225(3), Fla.Stat. (1979).

The question presented is at what stage of these proceedings the licensee is entitled under section 120.60(6), to demonstrate his innocence, and to whom.

First, the essential nature of the hearing requires that it be held before any probable cause determination is made. The first district in Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA), pet. denied, 392 So.2d 1379 (Fla.1980), explained that the purpose of the statute was to allow a licensee to promptly repudiate a revocation proceeding by pointing out to the agency matters which would render the complaint ill-founded, which, ideally, would have ultimately been disclosed by the agency’s investigative process. It is clear from this that the statute should give the broker the ability to shortcut the probable cause determination process by conclusively demonstrating his innocence. The department admits that to fail to give the broker this opportunity until the investigation is complete and the probable cause determination has been made effectively renders the opportunity meaningless. Sheppard, Chavers v. Florida Real Estate Commission, 384 So.2d 963 (Fla. 1st DCA 1980), and Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979), all merely held that, where the agency fails to give the broker his opportunity to be heard until after a formal complaint has been filed, or where no opportunity at all to explain is given the broker, the proceedings are subject to dismissal, without deciding at what time before filing of the complaint this opportunity should be given.

In the instant case, the petitioner was not given his statutory opportunity to show his innocence of the charges until the agency had committed itself to proceeding to revoke his license. Under these facts, the “safeguard” provided by the Legislature has been effectively circumvented by the agency.

Second, section 120.60(6) contemplates that the hearing be held before the Board of Real Estate, rather than before a representative of the department. Before the enactment of the section, the predecessor of the present board, the Florida Real Estate Commission, had the responsibility for the entire processing of complaints concerning brokers, subject only to the general supervisory authority of the department. See § 455.013, Fla.Stat. (Supp.1974). Subsequently, when section 120.60(6) was enacted, there was no question that it created a right to a hearing before the Florida Real Estate Commission. See Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979). The only substantive change in the law since that time was the legislative transfer of the commission’s (board’s) investigative function to the department. See Ch. 79-36, § 5, Laws of Fla. This amendment was insufficient to divest the board of its jurisdiction over section 120.60(6) hearings.

In summary, a licensee against whom a complaint has been filed with the Department of Professional Regulation is entitled to an informal conference before the appropriate board, at which he will have the opportunity to demonstrate his compliance with the requirements for retention of his license. This conference is to be held after the department’s investigative findings are submitted to the board, but before the board embarks upon its determination of probable cause. Since the department has not complied with these requirements in the instant case, it is prohibited from proceeding against the petitioner, Barton B. Pilcher, until it has so complied.

PETITION GRANTED.

DAUKSCH, C. J., concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting with opinion:

Section 120.60(6) requires notice to the licensee of facts or conduct which warrant the intended action and an opportunity for the licensee to show compliance with the legal requirements for the retention of his license prior to the institution of agency proceedings. In citing Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980), the majority disregarded the statement that notice and an opportunity to show compliance are to be given prior to the filing of the complaint. 385 So.2d at 145.

In the case before us, notice and copy of the proposed complaint were duly furnished to the licensee prior to filing. The only question that remains is whether the hearing as contemplated by section 120.60(6) could be held before a hearing officer or before the probable cause panel.

I agree that the Board of Real Estate is the probable cause panel. The board is charged with determining whether the “facts or conduct warrant the intended action ....” Only after the board has found that the facts or conduct warrant the intended action is notice and an “opportunity to show” be afforded the licensee. Certainly, if the board concluded that the facts or conduct did not warrant the intended action or that probable cause (whether or not the terminology is synonymous) did not exist, the licensee should not be troubled further.

I disagree with the majority that petitioner was not given his statutory opportunity to show his innocence until the agency had committed itself to proceeding to suspend or revoke his license. This conclusion is not supported by the record. It is clear the complaint had not been filed. In fact, section 455.225, Florida Statutes (1979), indicates that the department is not required to file a complaint for it provides:

[T]he department may decide not to prosecute the complaint if ii finds that probable cause has been improvidently found by the panel.

The majority position that section 120.-60(6) contemplates that a hearing be held before the Board of Real Estate rather than before a representative of the department is not supported by case law or statutory authority. In fact, the majority’s position conflicts with Sheppard wherein the court rejected such a contention:

The foregoing statutes provide a licensee an opportunity to learn of the reason for any intended action by the agency and to thereupon promptly clear his record, before a formal accusation is filed, by showing the agency or its designee that he has in fact complied with all lawful requirements for the retention of his license. This statute does not contemplate a hear ing before the agency, but an opportunity to show compliance at an informal conference with the agency or a representative of the agency, which may be its Executive Director or any other designee who may be designated at any time by the agency to conduct such conferences. The statute does not require that the agency meet formally to designate a person as its representative. A licensee must be given reasonable notice of the facts or conduct which warrant intended action and must also be given reasonable notice of a time, date and place to appear. (Emphasis added.)

385 So.2d at 145.

As the majority recognizes, the investigative function has been vested in the Department. However, they conclude that the Board of Real Estate has jurisdiction over the section 120.60(6) conference. This is inconsistent with the Sheppard court’s conclusion that the informal conference is intended to supplement the agency investigation; i. e., is a step in the investigative process. 385 So.2d at 145.

In sum, the conference scheduled here, after the probable cause determination and before issuance of the complaint, satisfies the requirement of section 120.60(6). Hence, I would DENY the writ.

      . Accord, Chavers v. Florida Real Estate Commission, 384 So.2d 963 (Fla. 1st DCA 1980), holding that the procedure is a “safeguard against the filing of illfounded complaints.”

      . The department’s argument is that the first time it is required to notify the licensee of proceedings to suspend or revoke his license is immediately before the formal complaint is filed. This would result in an anomaly, as § 455.225(8) requires the department to periodically notify the complainant of the status of the proceedings, through adjudication and appeal.

        .Chavers, 384 So.2d at 964.

      . On September 5, 1980, the department issued a proposed administrative complaint against petitioner and scheduled a conference before a regional supervisor of the department to satisfy section 120.60(6). The required notice and a copy of the coiftplaint were furnished to peti- ' tioner prior to filing. Petitioner subsequently filed the instant action seeking to prevent the department, through its regional supervisor, from proceeding with this matter.

      . I disagree with footnote two of the majority opinion regarding the requirement of periodic notification under section 455.225(8), Florida Statutes. This section refers to the person who filed the complaint, the complainant, not the licensee. Whether or not the complainant is kept advised is certainly not a matter of jurisdictional consequence.

      . See § 120.60(6).

      . Any difference here between “facts or conduct which warrant the intended action” and “probable cause” is nebulous, at best. The latter has been defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person charged is guilty of the offense charged. Goldstein v. Sabella, 88 So.2d 910 (Fla.1956). The courts, in determination of probable cause are not concerned with the question of guilt or innocence of the accused but whether the affiant has reasonable grounds for his belief. Dunnavant v. State, 46 So.2d 871 (Fla.1950).

      . While a complaint had been previously filed, it was later dismissed by the hearing officer for failure to hold the section 120.60(6) conference. The right to refile was recognized in Florida Real Estate Comm. v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979).

      . In Sheppard, the court stated that “fn]otification and reply under § 120.60(5) [renumbered § 120.60(6)] supplements the agency’s own investigation.” 385 So.2d at 145.


author: MILLS, Judge.

text:
    Virginia HANNEWACKER, Appellant, v. CITY OF JACKSONVILLE BEACH, Appellee.
    No. UU-79.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.
    Steven E. Rohan, Jacksonville, for appellant.
    C. Wayne Alford of Sinoff & Alford, Jacksonville, for appellee.
   MILLS, Judge.

Following a jury verdict for Hannewacker in a slip-and-fall case, the trial court entered judgment for the City in accordance with its motion for directed verdict made during the trial.

Hannewacker was injured by a fall which occurred when she slipped and fell on a broken place in the edge of the curb while attempting to cross a city street.

She brought suit against the City alleging that it failed to keep public streets, street curbs, and sidewalks within its corporate limits in a reasonably safe and suitable condition for travel by the public.

At trial, Hannewacker adduced testimony by the Director of General Services for the City indicating that no work had been done in the area where the sidewalk was for at least two years, the period of time for which he had been responsible for the maintenance; that there was no regular inspection schedule for the repair of streets or sidewalks; that no one was responsible for inspection, and that the Department relied on complaints, phone calls, or irregular visual inspection in determining the existence of defects in need of repair. The Director stated, however, that he drove by the location in question three or four times a day. In addition, Hannewacker introduced photographs of the curb area which showed the broken section.

At the close of Hannewacker’s case, the City made a motion for directed verdict. The trial court reserved ruling on the motion. After a jury verdict of $25,000 in favor of Hannewacker, the City renewed its motion for directed verdict and the trial court granted the motion and entered a final judgment for the City.

The issues raised before the trial court and here are (1) whether photographs constitute tangible evidence of the scene of the accident sufficient to raise an inference as to the length of time the defect was present and (2) whether the evidence presented was sufficient to allow the jury to infer that the City had constructive notice of the sidewalk defect and was negligent in allowing the defect to remain unrepaired.

In ruling on the motion, the trial court expressly relied on the City of Jacksonville v. Hampton, 108 So.2d 768 (Fla. 1st DCA 1959), which holds that photographs are not sufficient to raise an inference as to the length of time a defect has been present. The trial court ruled that since there was no other evidence concerning the length of time the defect existed, the City was entitled to judgment.

The trial court also stated that as to Hannewacker’s contention that the length of time may be established or inferred from absence of inspection, the evidence failed to disclose the absence of any such inspection for any particular period of time prior to the accident and noted that the Director of General Services testified that defects were repaired when there were telephone calls or complaints or when he saw them while driving around. We agree with the trial court.

As to the use of photographic evidence, Hannewacker relies on Leon v. City of Miami, 312 So.2d 518 (Fla. 3d DCA 1975), a case which supports Hannewacker’s position. In that opinion the court stated:

Evidence adduced at the hearing on summary judgment included a photograph of the sidewalk on which Mrs. Leon allegedly fell. The photograph was the only evidence presented which would show that the city knew or should have known of a defect in the sidewalk. However, it does constitute tangible evidence of the scene sufficient to raise an inference as to the length of time the defect was present, which is a jury question. If reasonable men might make justifiably different inferences and deductions and reach different conclusions from certain photographs, then it is the province of the jury to make such deductions and inferences.

The Leon case is in direct conflict with the opinion of this court on the issue, one which the trial court was constrained to follow and one to which we adhere. In City of Jacksonville v. Hampton, supra, this court held that photographs are admissible only when they are made a part of some qualified person’s testimony and cannot be used, standing alone, to establish that alleged defects existed for a long period of time.

Since the photographs could not be used to establish constructive notice and there was no evidence in the record regarding the length of time the defect in the curb had existed, the grant of the directed verdict was proper. City of Jacksonville v. Hampton, supra.

Hannewacker’s reliance on Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980), regarding the failure of the defendants in a slip-and-fall case to take reasonable care by not having an inspection procedure to discover water on the floor and clean it up, is misplaced. In that case the plaintiffs established that the defendants had received repeated verbal and written warnings that the hallway in question was slippery when wet and that water accumulated in the hallway on a daily basis. This court held that the repeated warnings put them on notice and created a jury question as to whether they exercised reasonable care to guard against foreseeable danger. In the instant case, Hannewacker failed to establish that the City had received any notice of the existence of the dangerous condition complained of and thereby failed to create a jury question as to the exercise of reasonable care to guard against a foreseeable danger.

Pursuant to Article V, Section 3(b)(4), Florida Constitution, we certify this decision to the Supreme Court as being in direct conflict with a decision of another district court of appeal.

AFFIRMED.

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


text:
    Ronald T. HOPWOOD and Milan M. Knor, Appellants, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. YY-256.
    District Court of Appeal of Florida, First District.
    Aug. 13, 1981.

      Thomas G. Pelham and Roger D. Schwenke of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellants.
    Terry Cole, Gen. Counsel, and Segundo J. Fernandez and Charles G. Stephens, Asst. Gen. Counsel, Tallahassee, for appellee.
   PER CURIAM.

Ronald T. Hopwood and Milan M. Knor (landowners) appeal from a final order of the Department of Environmental Regulation (DER) which directs that their permit application be denied. Landowners essentially argue that DER improperly rejected the DOAH hearing officer’s recommended order that their permit application be granted in part. Upon the unique facts of this case, we agree with their contentions and reverse.

The landowners submitted to DER a dredge and fill permit application pursuant to Chapters 253 and 403, Florida Statutes, to complete construction of a perimeter canal around Big Pine Island in Lake Griffin, Lake County, Florida. In doing so, they proposed to deposit the resulting fill material on the island side of the perimeter canal below the ordinary high water elevation of Lake Griffin, to use turbidity curtains during the dredging process, and to install two culverts in the causeway connecting Pine Island to the mainland. In its appraisal report, DER felt that no environmentally acceptable modification was available. While it did endorse the landowners’ proposal to place culverts under the causeway, it nevertheless gave notice of its intent to deny the application. The parties then proceeded to a Section 120.57(1) hearing before a DOAH hearing officer.

After considering the evidence and testimony presented by the two parties, the hearing officer made the following relevant findings of fact in her recommended order:

The construction of the causeway between the mainland and Big Pine Island in 1958 has prevented virtually any water from circulating between the marsh area and canal south of the causeway and the marsh area and canal north of the causeway. Due to this blockage of flow, lower dissolved oxygen levels and lower temperatures exist on the north side of the causeway. The south canal helps to maintain oxygen levels in the south marsh above concentrations considered critical to maintain aquatic life. The presence of the causeway has reduced the outflow of Lake Griffin by half, thereby increasing the residence time in the lake and promoting nutrient level build-up in the system. By increasing the waterflow through the marsh surrounding the island, the quality of water entering the Oklawaha River from eutrophic Lake Griffin should be greatly improved.
The marsh to the north of the causeway presently serves a vital purpose by removing nutrients and other deleterious substances from the water flowing from Lake Griffin into the Oklawaha River. The marsh community acts in a matter [sic] similar to the human kidney by filtering deleterious substances from the surface water.
Biological productivity of the north marsh area is directly proportional to the amount of flow. This area presently experiences water movement caused by the control of water elevations in the Oklaw-aha chain of lakes by a series of control structures. This “back-water” effect, which is caused by movement in the Ok-lawaha, is not a sheet flow. If a sheet flow could be created, the marsh area directly north of the causeway, which is severely distressed, could be improved.
A sheet flow northward could be created by the proper placement of adequate size culverts under the causeway and completion of the canal. The canal could facilitate the flow of water northward by permitting water to overflow the canal bank on the north side. This would be caused by the effects of a hydraulic gradient which exists between the water level in the canal and the ordinary mean high water level maintained by the St. John's River Water Management District. The hydraulic gradient would cause the canal to overflow its unobstructed north bank and travel northward through the marsh into the Oklawaha River. Water would be blocked by overflowing on the southeast side of the island because of the existing berm.
In order to restore circulation, it would also be necessary to construct a series of culverts evenly distributed under the causeway. The two-culvert system proposed by the Petitioners (landowners) would have a cosmetic effect and not significantly improve the natural water flow between the canals.
If the flow through the highly distressed marsh to the north of the causeway could be improved through the proper placement of culverts and construction of a perimeter canal, the positive aspects of the project would outweigh the negative impact of the elimination of approximately six (6) acres of productive marshland. If steps are not taken to reverse the continuing degradation of the marsh directly north of the causeway, a large and valuable area of wetlands will be lost. Artificial conditions already exist due to the finger canal on the north side of the causeway and the causeway itself.
The proposed filling of the island which is to occur below the 59.5-foot elevation (ordinary high water line) will reduce the river’s flood storage capacity and the area capable of supporting plant and animal life. The private benefit of placing the spoil from the dredging project on the island below the 59.5-foot elevation is outweighed by the negative impact associated with the elimination of a significant amount of lowlying marshland. Adequate alternative means exist to provide fire protection to the residents of the island, and the filling of the outlying marshes on the island is not necessary to accomplish this purpose.
Petitioners have not been denied the use of their property either by the Department’s denial of this permit or the granting of this permit with conditions. The existing lots are suitable for residential purposes, including that portion of the island below the 59.5-foot elevation which may be used for residential development by placing housing on pilings or poles.

Upon these findings of fact, the hearing officer in her conclusions of law recommended that the filling activity not be permitted. However, she also concluded that the public interest would be served by the proposed dredging [Section 253.123(3)(a), Florida Statutes] and that reasonable assurances had been provided that this activity would not result in violation of applicable water quality standards [Florida Administrative Code Rule 17-3] if certain conditions or modifications were made. Specifically, she recommended that the landowners install culverts or other similar structures of appropriate size to facilitate an adequate exchange of water between the canal on the north and south sides of the causeway, the number and size of the culverts or other structures to be determined by DER. She also recommended that the landowners be required to utilize equipment including, but not limited to, turbidity curtains to keep turbidity at a minimum during the dredging process.

DER accepted the hearing officer’s findings of fact in toto but rejected her conclusion of law no. 6 with respect to the last two sentences (underscored):

The purpose of an administrative hearing is to formulate final agency action by considering the facts as reflected in the record, the law, and agency policy. In the instant case, the application as submitted does not meet the standards required for permitting as set forth by statute and regulation. This does not, however, mandate that the application be denied. Rather, the hearing process should be a vehicle for the formulation of final agency action which gives due considera tion to appropriate modifications which could conform a project to the laws of the state.

Having rejected this particular conclusion of law, DER directed that the landowners’ permit application be denied.

DER takes the position that the hearing officer exceeded her statutory authority under Chapter 120 in proposing modifications to the permit application to make it conform to applicable rules and regulations of DER. We recognize that major or substantial amendments to or modification of a permit application in mid-proceeding may well constitute a due process problem of notice to the agency. However, in view of the unique facts of this case, especially the hearing officer’s numerous favorable findings of fact which were adopted in toto by DER, we are unable to conclude that the hearing office’s suggested modifications regarding an enlargement of the proposed culvert system constitutes such a substantial deviation from the original permit application. Indeed, DER itself initially agreed that some degree of a culvert system be put into place. For it to now argue that the hearing officer’s proposed modifications are beyond the parameters of the original permit application thus seems a bit ingenuous. Further, we take note that DER has previously granted permit applications subject to modifications recommended by a hearing officer. See, e. g., Long v. Okaloosa County, II F.A.L.R. 777-A (May 15, 1980); City of Tallahassee v. State of Florida, II F.A.L.R. 569-A (April 1, 1980); Sauls v. McAllister, II F.A.L.R. 430-A (March 7, 1980). In view of this agency practice, the numerous favorable findings that the permit application, if modified according to the hearing officer’s proposals, would meet applicable state standards, and the relatively minor nature of these modifications, we conclude that DER’s action in denying this application constituted an abuse of discretion. See Public Bank of St. Cloud v. State Department of Banking and Finance, 351 So.2d 73, 75 (Fla. 1st DCA 1977). Accordingly, we reverse the order and remand with directions that DER issue a permit subject to the hearing officer’s recommended conditions: (1) that the landowners install culverts or other similar structures of appropriate size to facilitate an adequate exchange of water between the canals on the north and south sides of the causeway, the number and size of the culverts or other structures to be determined by DER; (2) that the fill or spoil resulting from the dredging of the canal not be placed on Big Pine Island or any surrounding property at any elevation below 59.5-feet in elevation; and (3) that the applicants utilize equipment including, but not limited to, turbidity curtains to keep turbidity at a minimum during the dredging process.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

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


author: RYDER, Judge.

text:
    HALL TRUCK SALES, INC., Appellant, v. WILDER MOBILE HOMES, INC., Appellee.
    No. 80-2257.
    District Court of Appeal of Florida, Second District.
    Aug. 14, 1981.
    Rehearing Denied Sept. 3, 1981.

      Eric S. Ruff of Trinkle & Redman, P. A., Plant City, for appellant.
    Ralph C. Stoddard of Umbarger & Stod-dard, P. A., Brandon, for appellee.
   RYDER, Judge.

Hall Truck Sales, Inc., seller of a motor grader to Wilder Mobile Homes, Inc., appeals from a judgment adverse to its action to collect on a dishonored check. Appellant argues that any defect in the grader should have been discovered by appellee prior to purchase. We agree that appellee should have discovered the defect, and we reverse.

Appellant sued appellee buyer to collect the amount of a dishonored check. Appel-lee affirmatively defended on the ground that the grader was not fit for its intended purpose, and thus failed as consideration. At trial, appellant established that appellee purchased the used grader, and part of the consideration was a check for $5,500.00. Appellee became dissatisfied with the grader and stopped payment on the check.

Similar in size to a tractor, a grader has no use beyond leveling and pushing earth. The grader in question, a 1968 Huber, was acquired by appellant a few days before the sale. Appellee knew this, but neither party was aware of any defect. Appellee’s president, Wilder, accompanied by a Mr. Muncie, an employee of appellee who is a heavy equipment expert, examined the machine before purchasing it. Muncie had been in the heavy equipment field for forty years, and had disassembled and reassembled equipment like the grader. Muncie went over the machine , started it and drove it in forward and in reverse. He did not, however, attempt to push or grade soil. Neither Muncie nor Wilder inquired whether there was a place on appellant’s premises where the machine could have been further tested. Appellant’s employee testified that there was such a place, along with a pile of earth for testing purposes.

After appellee purchased the grader, Muncie began to work with it, and discovered that it would not push earth. He traced the problem to the transmission, after disassembling it, and eventually found that the transmission had to be replaced which cost in excess of $5,500.00. The court below found that the defect was “latent,” and set off the repair cost against the purchase price.

We begin our analysis of the case with the relevant statutory provisions. Section 672.314, Florida Statutes (1979), provides:

Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....

There seems no dispute below that appellant is a merchant with respect to this type of machinery, or that the defect rendered the grader unmerchantable. Thus, appellant breached the implied warranty of merchantability unless some other provision negates the warranty. Section 672.316(3Xb), Florida Statutes (1979), provides:

When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him....

There is no question below that appellee examined the grader, so the question becomes whether the examination ought in the circumstances to have revealed the defect to appellee.

Since the statutory provisions are part of the Uniform Commercial Code, we may examine the decisions of courts of our sister states in applying similar provisions. In Tarulli v. Birds in Paradise, 99 Misc.2d 1054, 417 N.Y.S.2d 854 (N.Y.Civ.Ct.1979), the court held that the buyer of a bird should have had the bird examined by a veterinarian, who would have discovered on inspection that the bird had anemia. Similarly, in Richards Manufacturing Co. v. Gamel, 5 Wash.App. 549, 489 P.2d 366 (1971), the court held that cosmetic defects in lamps ought to have been discovered by a professional buyer. The court noted:

Even if a more complete inspection would have required labor and inconvenience, the buyer does not have the right to assert an implied warranty of quality and fitness after he has been given an opportunity to inspect and failed to take advantage of it.

489 P.2d 367.

In Refrigeration Discount Service v. Crouse, 2 U.C.C. 986 (Pa.Ct. Common Pleas 1965), the buyer had ample opportunity to examine a used tractor and in fact drove it before purchase. The court held that the buyer ought to have discovered a defect which he had no difficulty in finding three days later. In Perry v. Lawson Ford Tractor Company, 613 P.2d 458 (Okl.1980), the buyer was unskilled in mechanics. The court sustained a finding that the buyer could not have discovered defects through casual inspection and normal use of short duration.

Unlike Perry, the buyer below would have discovered the defect through normal use of short duration. Further, the buyer below employed the services of an expert for the inspection. We think that the situation below is closer to that of Richards, Refrigeration Discount and Tarulli. Appel-lee’s expert had ample opportunity to inspect the machine, and could have tested its only function on the premises. The defect below was functionally basic to the operation of the machine. Further, appellee knew the grader was not a new machine, and that appellant had obtained it only a few days before the sale.

The evidence supporting the lower court’s finding that the defect was “latent” was apparently the fact that the defect was not physically visible. We hold that evidence to be insufficient in view of the contrary fact that the machine would not accomplish the only function for which it was designed. The defect below ought to have been revealed by examination, and appellee’s failure to adequately examine the goods negates the implied warranty of merchantability.

The order appealed is REVERSED and the case REMANDED for entry of judgment for appellant.

BOARDMAN, A.C.J., and GRIMES, J., concur.


author:
PER CURIAM.
      WENTWORTH, Judge,

text:
    Thomas Lee STEPHENS, Appellant, v. Lois Marie STEPHENS, Appellee.
    No. PP-405.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1981.
    Rehearing Denied Sept. 29, 1981.

      David C. Goodman, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Bruce D. Barkett, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The husband appeals the trial court’s order, entered in a uniform reciprocal enforcement of support action (URESA), modifying the support payments awarded in the original divorce decree. We reverse.

On January 6, 1975, the Circuit Court for Duval County rendered a final judgment dissolving the marriage between the parties and ordering the husband to pay $25.00 each week in support payments. On April 10, 1975, the trial court entered an order staying the payment of support. On April 7, 1976, the wife, appellee, then living in Maryland, filed a petition under that state’s uniform act. The cause was then transferred to the Circuit Court for Duval County where the trial court entered a final order requiring the husband to pay $20.00 each week in support payments. The husband filed a motion to stay and vacate the final order in which he asserted the trial court lacked jurisdiction to establish support payments in the URESA action. The trial court denied the motion and the husband appealed.

In Ray v. Pentlicki, 375 So.2d 875 (Fla. 2d DCA 1979), the court considered a similar case in which two separate proceedings, a post-judgment modification and a URESA action, were pending before different judges of the same circuit. The modification proceeding resulted in a suspension of support payments. The husband then moved to suspend a payment order rendered in the URESA action which the trial court denied. The Second District Court of Appeal reversed the cause holding the URESA action was circumscribed by the order entered in the dissolution of marriage proceeding.

We agree with the result in Ray. Section 88.281, Florida Statutes (1975), provides that “[a]ny order of support issued by a court of this state when acting as a responding state shall not supersede any previous order of support issued in a dissolution of marriage for separate maintenance action .... ” See also Cochran v. Cochran, 263 So.2d 292 (Fla. 2d DCA 1972). Although the statute is broad enough to permit a responding court in a URESA action to initially determine the duty of support, this is not permitted when there is a previous order establishing support in the underlying dissolution of marriage proceeding. Accordingly, the trial court erred in denying the motion to vacate. Therefore, the case is reversed and the cause remanded with instructions to the trial court to enter an order vacating the final support order rendered on July 26, 1976.

MILLS, J., and OWEN, WILLIAM C. Jr. (Retired), Associate Judge, concur.

WENTWORTH, J., dissents with opinion.

WENTWORTH, Judge,

dissenting.

I agree with the result in Ray and with its conclusion that the issue presented is not one of jurisdiction. The decision is not in conflict with the order appealed in the present case. The reversal in Ray required only that a URESA order (on motion to vacate) should be compatible with a dissolution support order entered simultaneously and involving the same parties in the same Florida circuit court, since consolidation was an available procedure to achieve consistency. The order now before us involves a motion to vacate a URESA order for support entered more than a year after a modification order suspending support in the dissolution proceeding. The record establishes that the order appealed (denying motion to vacate) was entered in recognition of the prior orders in both proceedings, entered by the same judge. Clearly, then, the need for compatibility in simultaneous orders does not here exist, and Ray provides no support for mandating consistency when elapse of time permits differing disposition of support claims in either URESA or dissolution modification proceedings. The current order on the merits of that issue in this case is the URESA order, in contrast to the situation in Ray where the current order was the dissolution modification.

Section 88.281, Florida Statutes (1975), provides that an order of support issued by a court of this state when acting as a responding state is not nullified by a subsequent dissolution order and does not supersede a previous order of support in a dissolution action:

A support order made by a court of this state pursuant to this act does not nullify and is not nullified by a support order made by a court of this state pursuant to any other law or by a support order made by a court of any other state pursuant to a substantially similar act or any other law, regardless of priority of issuance, unless otherwise specifically provided by the court, [e. s.]

However, see Cochran v. Cochran, 263 So.2d 292 (Fla. 2d DCA 1972), holding URESA was improperly used to circumvent a support suspension order.

The uniform act was designed simply as a means for enforcing the duty of support otherwise “imposed or imposable.” Section 88.031(6), Florida Statutes. Ray, supra. The act does not create a duty of support but provides a remedy by which the trial court may require support payments otherwise imposable under our law independent of a dissolution proceeding subject to the need for consistency in simultaneous orders in proceedings between the same parties in the same court.

The order should be affirmed.

      . The fact that the trial court has stayed the support order has no bearing on our analysis of this issue.


text:
    HOLIDAY INN and General Adjustment Bureau, Appellants, v. Barbara POPE, Appellee.
    No. SS-212.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1981.
    Rehearing Denied Sept. 18, 1981.
    Janet L. Brown of Haas, Boehm, Brown & Rigdon, P.A., Orlando, for appellants.

      Steven Burrage of Robert D. Melton, P.A., Orlando, for appellee.
   PER CURIAM.

Holiday Inn and General Adjustment Bureau appeal the deputy commissioner’s order asserting four points as error. We affirm all points except the deputy commissioner’s computation of the claimant’s average weekly wage. In computing Pope’s average weekly wage, the deputy commissioner included $7.50 in tips which were not reported to the employer. Unreported wages may not be included in the wage computations. Section 440.02(12) Fla.Stat. (Supp.1978). Accordingly, we reverse and remand for recomputation of appellee’s average weekly wage.

MILLS, McCORD and THOMPSON, JJ., concur.