author: CAMPBELL, Judge. OTT, Judge, specially GRIMES, Acting Chief Judge,

text:
    Walter C. BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-393.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 1981.

      Jerry Hill, Public Defender, Bartow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant appeals from his five-year sentence imposed upon a finding of a probation violation. Appellant, who was sixteen years old at the time, was initially charged by the state attorney on a direct information for burglary. Appellant was represented by the public defender, and as a result of a negotiated plea of guilty, adjudication was withheld and appellant was placed on three years’ probation. One condition of probation was that appellant reside in the county jail for sixty days. Subsequently, an affidavit of probation violation was filed charging appellant with petit theft. Finding that appellant had violated his probation, the trial court revoked the probation, adjudicated appellant guilty and sentenced him to five years in the state prison system.

The basis of this appeal is that the trial court did not follow the procedures set out in section 39.111(6), Florida Statutes (1979), either at the time the initial adult sanction was imposed on appellant or at the time probation was revoked and he was sentenced to the five-year prison term.

The circuit court, criminal division, properly had jurisdiction by reason of the direct information filed against appellant by the state attorney. State v. Cain, 381 So.2d 1361 (Fla.1980). Once the criminal division properly had jurisdiction, any omission by it in complying with statutory directions would not affect jurisdiction. The power to adjudicate includes the authority to rule both correctly and incorrectly. State ex rel. Pearson v. Johnson, 334 So.2d 54 (Fla. 4th DCA 1976). Appellant’s remedy for the court’s failure to follow section 39.111(6) when it imposed the adult sanction, placing him on three years’ probation with sixty days to be served in the county jail, would have been to appeal. State ex rel. Pearson v. Johnson. Failure by appellant to do so waived any error by the court in not following the procedures of section 39.111(6) at that time.

Section 39.02(5)(d) provides as follows:

Once a child has been transferred for criminal prosecution pursuant to a waiver hearing, indictment, or information and has been found to have committed the offense for which he is transferred or a lesser included offense, the child shall thereafter be handled in every respect as if he were an adult for any subsequent violation of Florida law.

The court was not required to follow the procedures of section 39.111(6) to revoke the original probation and sentence the appellant as a result of the affidavit charging a probation violation for the commission of a subsequent offense. It is only when the court initially imposes an adult sanction that those procedures are required and appellant’s failure to appeal waived this requirement.

The judgment and sentence of the trial court is, therefore, affirmed.

OTT, J., concurs specially with opinion.

GRIMES, A.C.J., dissents with opinion.

OTT, Judge, specially

concurring.

There is no dispute over the initial question here. When a sixteen or seventeen-year-old juvenile has been directly informed against by the state attorney, before the Adult Division of the Circuit Court can impose any adult sanctions against him the court must consider, and make specific findings of fact regarding, the criteria specified by section 39.111(6), Florida Statutes. State v. Cain, 381 So.2d 1361 (Fla.1980).

But must the court continue to do so again and again, each and every time the juvenile comes before the court for further proceedings arising out of the same charges? In my opinion, once the court has determined that the circumstances of the offense do not warrant juvenile treatment, it is an unwarranted imposition to require the court to reconsider that decision. Will the passage of time somehow change those circumstances? I think not.

The mandate for initial consideration of the factors for determining whether a juvenile should be treated as an adult is a worthwhile procedure conducive to social justice. However, courts are far too busy for eternal afterthoughts and second guessing, whose sole effect could be only the eventual repudiation of the first decision.

When the court below imposed an adult sanction (probation) against appellant without considering the governing criteria, it erred. Appellant should have and could have appealed. But, evidently pleased with the court’s action, he did not bring the error to our attention, nor even to the attention of the erring court below. Knowing full well the conditions of his probation, and the consequences of violating them, he chose to take his chances. I think we should not encourage criminal defendants to look upon a procedural error as a secret ace in the hole, for future use.

GRIMES, Acting Chief Judge,

dissenting.

I doubt that section 39.02(5)(d) eliminates the sentencing requirements of section 39.-111(6) for any child convicted in criminal court, because section 39.02(6), which immediately follows section 39.02(5)(d), states:

(6) When a child has been transferred for criminal prosecution as an adult and the child has been found to have committed a violation of Florida law, the disposition of the case shall be made pursuant to s. 39.111(6).

In any event, section 39.02(5)(d) simply provides that once a child prosecuted in criminal court has been found to have committed an offense, he will thereafter be handled as an adult for any subsequent violation of Florida law. Thus, at the most, because appellant pled guilty in criminal court, he must be treated as an adult for any new violation of Florida law. However, the sentence appellant now challenges was imposed for the original violation. If section 39.-02(5)(d) is applicable at all in the context of this case, it would only come into play if the state files new charges against appellant for the petit theft which was the basis for the revocation of his probation.

Insofar as waiver is concerned, there is no doubt that by failing to appeal the probation order appellant lost the right to complain of the court’s noncompliance with section 39.111 at the time it placed him on probation. Yet, it was not until later that the court sentenced appellant to jail for the original offense, and he has timely appealed from that sentence. The fallacy in saying that he waited too long to complain is that it was only when he was sentenced to jail that he had anything to complain about. Section 39.111 is applicable to sentencing. Its obvious purpose is to require the court to first consider the advisability of sentencing alternatives before incarcerating youthful offenders with hardened criminals. However, appellant has now been jailed without regard to the statute.


source: Caselaw Access Project

author: RYDER, Judge.

license: Public Domain

text:
    Jimmie D. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1995.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 1981.
    Jerry Hill, Public Defender, Bartow and Eula Tuttle Mason, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Jimmie D. Walker appeals his conviction for robbery, arguing that the court erred in admitting evidence of flight and other crimes. We hold that the cumulative effect of all the evidence erroneously admitted deprived appellant of a fair trial, and we reverse.

The State charged appellant with robbery of a Kentucky Fried Chicken restaurant. Employee Ruby Wilson identified appellant as the robber. Wilson testified that she observed appellant during the robbery for ten or fifteen minutes and had seen him for five minutes earlier that day. Wilson said that during the robbery, appellant had a bandage on his face from the nose back. Carolyn Stewart, another Kentucky Fried Chicken employee, also identified appellant as the robber. Stewart observed the robber for five or six minutes, and had also seen him earlier that day. Over objection, Stewart testified that two days after the robbery, she heard a police officer describe a man who robbed the Eagle Discount store across the street. Stewart noted that the description sounded like the man who robbed her. Appellant’s motion for mistrial, based on prejudicial admission of evidence of another crime, was denied by the court.

Detective Earnest Mathis testified concerning the above witnesses’ photo pak identification of appellant. Mathis stated, “This was the same photograph that was used in another case, so it already had some initials on the back of it.” The court took under advisement appellant’s motion for mistrial on the same grounds.

Ralph Pflieger, another police detective, testified that he was looking for appellant a month after the robbery to arrest him. Pflieger, while riding in an unmarked car, observed appellant and began following him. Appellant ran. After another officer apprehended appellant, Pflieger testified that he read appellant a rights form. The witness read the form, stating, “Offense numbers 41192, 41927. . . . ” Appellant’s motion for mistrial based on improper evidence of other crimes was again denied. Thereafter, Pflieger testified appellant told him he ran from the police because, “He has been involved in a few things and did not want to make contact with the police.” Appellant noted a continuing objection.

The State proffered testimony of a witness to still another robbery at the Tangerine Laundromat. Malvenae Jordan testified that appellant, with half his face bandaged, robbed the laundromat. She saw the robber several times later in the neighborhood. The court permitted this testimony before the jury.

Also on proffer, Young Anuszewski testified to robbery of the Eagle Discount store by a man with a bandage on his face. When asked to make an in-court identification, the witness pointed to a man in the audience. When the prosecutor asked if the witness saw the robber in the courtroom, he responded, “No, I haven’t seen him.” After the prosecutor again asked the question, Anuszewski pointed to appellant, sitting at the table with counsel, and said he was sure of his identification. The witness explained his indecision by saying the man in the audience had a long face and mustache like appellant.

The trial judge permitted this testimony, noting that the identification question was one of weight and sufficiency. Anuszewski identified appellant as the robber before the jury, but testified on cross-examination that the robber had a band-aid on his cheek.

Over objection, Officer Harold Hollem-beack testified to the chase and eventual capture of appellant. Appellant objected to flight evidence in that the flight was too removed in time from the offense (one month) to be of evidentiary weight. While we do not necessarily feel admission of this evidence is reversible error, standing alone, we include it in our discussion for its cumulative effect. Over objection, the court instructed the jury on flight, and the jury returned a guilty verdict.

Evidence of other crimes is admissible to prove identity, common scheme or design, intent, motive or pattern. See Denson v. State, 264 So.2d 442 (Fla. 1st DCA 1972). Most of the comments by the witnesses below regarding appellant’s alleged other crimes serves none of those purposes. The only effect of the testimony was to change the focus of the trial below from the issue of guilt or innocence to an examination of appellant’s character and alleged propensity to commit crime. Appellant did not testify and place his character in issue.

The testimony of the Tangerine Laundromat robbery was arguably relevant to prove identity, since the robber in both wore bandages. Less certain is that the value of the evidence outweighed its prejudice, since there was already clear identification of appellant as the robber below by direct witnesses. See Styles v. State, 384 So.2d 703 (Fla.2d DCA 1980). Of less value was the testimony of the Eagle robbery, since the witness’ identification therein was equivocal. See Davis v. State, 276 So.2d 846 (Fla.2d DCA 1973). See also Hirsch v. State, 279 So.2d 866 (Fla. 1973). Additionally, the common scheme of the Eagle robbery was uncertain, since the witness at one point testified that the robber wore only a band-aid on his face rather than bandages from the nose back.

The cumulative effect of the errors noted above resulted in fundamental prejudice to appellant and denied his constitutional right to be prosecuted only for the crime charged and to have a fair trial. See Albright v. State, 378 So.2d 1234 (Fla.2d DCA 1979).

The conviction is REVERSED, the judgment set aside, and the case REMANDED for a new trial.

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


author: BOARDMAN, Acting Chief Judge.

text:
    William Elija BAKER, Appellant, v. Becky Marie BAKER, Appellee.
    No. 81-574.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 1981.
    Ann Terrell Carley, Patient Legal Advocacy, Chattahoochee, for appellant.
    No appearance for appellee.
   BOARDMAN, Acting Chief Judge.

William Elija Baker (the husband) appeals the final judgment of dissolution of his marriage to Becky Marie Baker (the wife). We affirm in part and reverse in part.

The wife filed a petition for dissolution on August 26, 1980, also seeking custody of the parties’ minor child (the husband is not the child’s natural father, but he had legally adopted the child) and full ownership and control of the parties’ residence. At the time the petition was filed, the husband was being held in jail pending disposition of criminal charges arising out of an incident in which he had shot a gun into the boarding house in which the wife was living. He nevertheless filed a pro se response on September 15, agreeing that the marriage was irretrievably broken and that the wife should have custody of the child, but requesting that the hearing be postponed for ninety days so that he could produce evidence in support of his allegation that the wife had agreed to convey her interest in the marital home to him in exchange for his conveying his interest in a certain automobile to her. This motion was denied on October 3, but the husband was given twenty days “to further plead.” In response, the husband filed another pro se pleading denominated “Respondent Request Hearing,” which alleged for the first time that the wife had sold his personal property without his consent “for her personal gain” and was conspiring to keep him in jail, and that the wife should not have custody of the child because she “is unfit mother in that she had comitted [sic] perjury has swindle [sic] State and Federal people out of property and money and Petitioner have [sic] charges against her, just as soon as Bank officials and the F.B.I. visit Respondent at the Jail.”

Final hearing was held on December 1, 1980. The husband had been notified of the hearing, but did not appear either personally or through counsel. Prior to the hearing, the husband had been committed to Florida State Hospital in Chattahoochee, having been found incompetent to stand trial. It appears that the husband was incarcerated, either in jail or in Chattahoochee, at all times during the pendency of the wife’s petition for dissolution, and he did not have counsel representing him in this matter. These facts were known to the trial court. The court nevertheless not only found that it had jurisdiction over the parties, which it most assuredly did, but proceeded to hold the hearing and enter final judgment.

Other than one witness who testified solely concerning the wife’s residence in Florida, the only witness at the hearing was the wife. She testified that she and her daughter needed the marital home to live in, although they were currently living in her mother’s rooming house and the marital home was rented out. She and her husband had purchased the home jointly with a $700 .down payment and had less than $500 equity in it. She had worked throughout the marriage, and both she and the husband had contributed to the payments. The husband had been unemployed since February, 1980, however.

At the conclusion of the hearing, the trial court announced that it would dissolve the marriage and award custody of the child to the wife. The court continued:

Because of the Husband’s current problem with the law and his own emotional problems, the Court makes no provision at this time for visitation, but will reserve that.
The Court, however, there being jurisdiction over his person, there being such a small equity in this home, which is needed and necessary for the financial security of the minor child that’s been adopted by Mr. Baker, will award, in lieu of temporary child support, the interest of the Husband to the Wife, and he will be required to execute a quit-claim deed. If he fails or refuses to do so within ten days, then the judgment of this Court shall operate to transfer his interest in the home to the Wife.
She will assume the mortgage payments and save the Husband harmless as indicated here.
You might embrace that as temporary alimony and child support. For the title purposes, we might say that — let me get a little information.
Since he’s been out of work, you’ve been making payments on the home?
THE PETITIONER: Right.
THE COURT: I think probably you ought to say special equity and child support. Do both, and I think that will make the title a little better.

Final judgment was entered on January 6, 1981, in accordance with the court’s oral pronouncement except that the court reserved jurisdiction concerning child support and made no mention of visitation rights. On December 22, 1980, motions for rehearing were filed by both the husband pro se and by a legal services attorney on the husband’s behalf. Both motions raised the issue of the husband’s lack of opportunity to appear at the hearing either personally or through counsel. The motions were denied by order rendered January 26, 1981. This appeal followed timely.

Under the circumstances, we find no error in the trial court’s dissolution of the marriage or in the award of custody of the child to the wife, neither of which are challenged on appeal. However, jurisdiction to determine visitation rights should have been reserved, as the trial court announced it would do. See Baker v. Baker, 366 So.2d 873 (Fla. 4th DCA 1979).

In addition, the trial court erred in awarding title to the marital home to the wife. In the first place, neither stated ground for this award is supported by the record. An award of the home as child support is unjustified on this record because there is absolutely no evidence of the husband’s ability to pay, see Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980); indeed, the scanty information available indicates that the husband is indigent and unemployed and has virtually no assets. The other stated ground, special equity, was not established. Our supreme court in Cana-karis explained this concept as follows:

The term “special equity” was created to describe a vested interest in property brought into the marriage or acquired during the marriage because of contribution of services or funds over and above normal marital duties. . . . This vested interest is not alimony. . . .
The term “special equity” has also- been used to justify an award of lump sum alimony. When employed in this context, it concerns only whether the equities of the case justify a lump sum award. The property interest or lien concept of “special equity” is entirely distinct from the determination of parties’ equities in a lump sum alimony award. The term “special equity” should not be used when considering lump sum alimony; rather, it should be used only when analyzing a vested property interest of a spouse. . . . (Citations omitted.)

382 So.2d at 1200-1201. Payments on real property made by a wife with funds she earned during the marriage do not ordinarily give rise to a special equity. Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla. 1980); see also Ball v. Ball, 335 So.2d 5 (Fla. 1976).

In the second place, the trial court erred in holding a hearing on the issue in the husband’s absence. As this court stated in Nystrom v. Nystrom, 105 So.2d 605 at 609 (Fla. 2d DCA 1958): “Due process, as well as orderly procedure, contemplates that notice and a full and fair opportunity to be heard should be given each party before any significant step is taken in the proceedings in a cause.” (Emphasis added.) It is obvious that although the husband was duly notified of the hearing, he did not have an opportunity to be heard. His absence at the hearing was not his own choice, since he was not free to leave the state hospital, and there is no indication that he had, prior to the hearing, either the opportunity or the funds to secure an attorney, who could at least have cross-examined the wife’s witnesses and otherwise protected his interests. Moreover, his pleadings were sufficient to place the trial court on notice that he desired to present evidence on the issue of disposition of the marital home.

Under these circumstances, the trial court should have done one of two things. The court could have briefly postponed the hearing to afford the husband a reasonable opportunity to obtain representation through either an attorney or a guardian ad litem and/or to make arrangements to attend the hearing in person. In the alternative, the court could have held a partial hearing in the husband’s absence, dissolved the marriage and awarded child custody to the wife (as it did), awarded the wife tern- porary use and occupancy of the marital home, and reserved jurisdiction to determine the issues of child support (the trial court did reserve jurisdiction on this issue), visitation rights and disposition of the marital home until such time as the husband could either represent himself adequately or secure representation through an attorney or a guardian ad litem.

Since we have concluded that the dissolution of the marriage, the award of child custody to the wife, and the reservation of jurisdiction to award child support were proper, we affirm those portions of the final judgment of dissolution. We reverse the remainder of that order and remand the cause for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

OTT and RYDER, JJ., concur.


author: PER CURIAM.

text:
    Walter Scott FAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2007.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 1981.
    Shepherd, McCabe & Cooley and James E. Shepherd, Orlando, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Foster v. State, 400 So.2d 1 (Fla. 1981); Battle v. State, 388 So.2d 1323 (Fla. 5th DCA 1980); Harvey v. State, 383 So.2d 770 (Fla. 3d DCA 1980); Wedenfeller v. State, 355 So. 2d 193 (Fla. 1st DCA 1978).


author: ORFINGER, Judge.

text:
    R. W. ROBERTS CONSTRUCTION CO., INC., a Fla. Corp., Petitioner, v. MASTERS & CO., INC., a Fla. Corp., & E. L. Eastmoore, Circuit Judge, Seventh Circuit, In and For Putnam County, Fla., Respondents.
    No. 81-509.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.

      William A. Harmening of Stanley, Har-mening & Lovett, Orlando, for petitioner.
    John D. Mussoline of Clark & Mussoline, Palatka, for respondent Masters.
    No appearance for respondent East-moore.
   ORFINGER, Judge.

By Petition for Writ of Common Law Certiorari, petitioner contends that the trial court departed from the essential requirements of law when it denied its motion to compel arbitration in this contract dispute.

Respondent, a subcontractor, filed suit in Putnam County against petitioner as general contractor, and petitioner’s surety for money allegedly due from the respondent. The contract between the parties contains the arbitration provision relied on by petitioner. On December 3, 1980, petitioner filed a motion to dismiss and to transfer the action, alleging that the contract clearly provided for venue in Orange County, rather than Putnam County. After hearing, this motion was denied by order entered February 16, 1981. On March 3, 1981, petitioner filed its answer and affirmative defenses and its motion to compel arbitration, the denial of which motion forms the basis for this petition.

Petitioner fails to show a departure from the essential requirements of law by the trial court. Assuming the arbitration clause in question to be valid (a point not conceded by respondent and not decided here), the trial court could have concluded that by submitting a motion to dismiss and to transfer action, and after an adverse ruling thereon, any right to arbitration was waived. A party’s contract right to arbitration may be waived by active participation in a lawsuit or by taking action inconsistent with that right. Klosters Reteri A/S v. Arison Shipping Co., 280 So.2d 678 (Fla.1973). Waiver of the right does not necessarily depend on the timing of the motion to compel arbitration, but rather on the prior taking of an inconsistent position by the party moving therefor. Ojus Industries v. Mann, 221 So.2d 780 (Fla.3d DCA 1969); King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla.4th DCA 1977).

Petitioner’s motion to dismiss and transfer the action is a contention that the proceeding is in the court of the wrong county, not that it doesn’t belong in court at all. This position seems totally inconsistent with petitioner’s later assertion that no court was the proper forum, because arbitration was appropriate.

The petition for writ of certiorari is DENIED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . A petition for writ of common law certiorari has been held to be the appropriate method of review of an order denying a motion to compel arbitration. See Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla.3d DCA 1980).


author: COBB, Judge.

text:
    Regina Diane JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-308.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Appellant Jackson was charged with carrying a concealed firearm. She moved to suppress the evidence on the ground that it had been obtained as the result of an unlawful search and seizure, and when the trial court denied that motion, she entered a plea of nolo contendere and reserved her right to appeal the trial court’s denial of her motion to suppress. Judgment and sentence have been imposed and Jackson has appealed.

At about 1:00 A.M., Orlando Police Officer Robert Newsome saw a black male who matched a robbery suspect BOLO that had been broadcast over the police radio. Appellant Jackson was with the suspect. As Officer Newsome approached, Jackson made a tucking motion behind her. Officer Newsome patted down the suspect, but did not find any weapons on him. While Officer Newsome was filling out a field report, Orlando Police Officer Uvalle arrived with the robbery victim. During a conversation with the officers, the victim identified the suspect and told the officers that there had been a gun. At that point, it clicked in Officer Newsome’s mind that the gun may have been what Jackson had tucked behind her. Officer Newsome searched underneath the back of Jackson’s sweater and found a gun in the back of her pants.

An individual may not be frisked simply because he is standing next to another individual who is being arrested. Dunn v. State, 382 So.2d 727 (Fla. 2d DCA 1980); Perry v. State, 296 So.2d 505 (Fla. 3d DCA 1974). However, if during a lawful and temporary encounter between a police officer and a citizen, a reasonable ground is formulated to believe that the citizen is carrying a dangerous weapon, a frisk of that citizen’s person is justified to ensure the safety of the police officer. McNamara v. State, 357 So.2d 410 (Fla.1978); State v. Rawlings, 391 So.2d 269 (Fla. 4th DCA 1980); Ingram v. State, 264 So.2d 109 (Fla. 4th DCA), cert. denied, 271 So.2d 141 (Fla.1972). This rule applies to an individual who is accompanying a suspect that the police have stopped. Williams v. State, 294 So.2d 37 (Fla. 3d DCA), cert. denied, 299 So.2d 602 (Fla.1974).

In the case at hand, in light of the facts known to Officer Newsome at the time he decided to search Jackson, the officer had a reasonable ground to believe that the gun was on her person. Therefore, the officer was justified in frisking Jackson in order to find that weapon.

AFFIRMED.

SHARP and COWART, JJ., concur.


text:
    Gail SUDBERRY and Marie L. Sudberry, Appellants, v. Alan D. LOWKE and Evelyn G. Lowke, his wife, and Abstract and Title Corporation of Florida, Appellees.
    No. 81-130.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.

      Jack A. Kirschenbaum of Wolfe, Kir-schenbaum Caruso, Mosley & Kabboord, P. A., Cocoa Beach, for appellants.
    William E. Weller of Rose & Weller, Cocoa Beach, for appellees Lowkes.
    Charles M. Harris of Crofton, Holland, Starling, Harris & Severs, P. A., Titusville, for appellee Abstract and Title Corp.
   ORFINGER, Judge.

Appellants contend that the trial court erred in dismissing their second amended complaint with prejudice. The issue on appeal is whether they stated a cause of action against the defendants, or either of them, because the defendants failed and neglected to advise them that the mortgage they were assuming bore interest at 11% per annum instead of the 972% rate for which they had contracted when they agreed to purchase the subject real estate.

The complaint alleges that when appellants contracted to purchase a parcel of real estate from Lowke, both parties selected appellee Abstract and Title Corporation of Florida (Title Company) as closing agent. The contract provided for the assumption by the buyers of an existing institutional mortgage with an interest rate of 972% per annum, and it further provided that if the mortgage contained a provision requiring the lender’s prior approval for assumption of the mortgage, or if the lender had the option to increase the interest rate upon a conveyance of the realty, the buyers had the option to cancel and rescind the contract. The title company received the appropriate mortgage information from the lender, advising that the lender intended to increase the interest to the then current rate. The title company did not notify the buyers of the proposed increase and the transaction was closed. First learning of the increase in the interest rate after the closing, the buyers sought damages against the Lowkes and the Title Company.

With respect to the Lowkes, we find no error in the dismissal of the complaint. There is nothing in the contract which obligates the sellers to convey the property with a 972% mortgage, but merely obligates the sellers to provide a statement from the lender detailing the status of the mortgage. The contract provides that if the lender’s approval is required, or if the lender has the right to and proposes to increase the interest rate, the purchaser may rescind. There is no allegation in the complaint that the Lowkes knew of the lender’s proposed intention to increase the interest rate.

With respect to the dismissal of the complaint against the title company, we find error and reverse. As the agent for the buyer, the title company had an obligation to disclose to its principal all material facts relevant to the agency. Connelly v. Special Road & Bridge District, 99 Fla. 456, 126 So. 794, 71 A.L.R. 923 (1930); 2 Fla. Jur.2d Agency and Employment, § 62 (1977). Count IV of the second amended complaint, addressed to the title company, alleges this duty, alleges a breach of this duty in the failure of the title company to disclose the proposed increase in the interest rate and damage to the appellants resulting therefrom. The trial court therefore erred in dismissing Count IY of the second amended complaint and should have required the title company to respond.

The order dismissing Count III is affirmed, and order dismissing Count IV is reversed and the cause is remanded for further proceedings consistent herewith.

AFFIRMED in part, REVERSED in part and REMANDED.

DAUKSCH, C. J., and COWART, J., concur.

      . Appellee Title Company suggests that damages were improperly alleged because appellant stated only that they were “required to assume an increased mortgage, not that they had actually done so.” If appellants have no actual damages, this fact will be revealed at trial. At this point, damages are sufficiently alleged.


author: SHARP, Judge.

text:
    Milty A. FAIRCHILD, for the Use and Benefit of STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. W. O. TAYLOR COMMERCIAL REFRIGERATION AND ELECTRIC CO., INC., and West American Insurance Company, Appellees.
    No. 81-26.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.

      James O. Driscoll of Driscoll, Langston, Layton & Kane, P.A., Orlando, for appellant.
    Robert A. Hannah of Pitts, Eubanks & Ross, P.A., Orlando, for appellees.
   SHARP, Judge.

The appellant (State Farm Fire and Casualty Company) appeals from a final summary judgment denying it the right to be subrogated to the rights of its insured (Milty A. Fairchild) against the appellees (W. O. Taylor Commercial Refrigeration and Electrical Co. and West American Insurance Company, Taylor’s liability carrier). Taylor entered into a contract with Fairchild and in accordance with the contract installed central air conditioning equipment in Fair-child’s home in 1972. The contract required Fairchild to carry “fire, tornado, and other necessary insurance.” In 1977 a fire occurred in the residence, which did extensive damage, and which was allegedly caused by Taylor’s negligent installation and wiring of the air-handling equipment in the attic. State Farm paid its insured, Fairchild, and filed this subrogation suit. Taylor argues the requirement in the contract that the owner carry insurance bars recovery from it. We disagree and reverse.

The contract entered into by Fairchild and Taylor was a one page printed form. It was captioned a “Proposal” submitted by Taylor and accepted by Fairchild. It described the kind of air conditioning equipment to be installed, the locations of outlets and ducts, and the total price. The payment was due “upon operation of units.” It provided limited warranties for one and four years on “parts.” In very small print, at the bottom of the page, next to the block where Taylor signed appeared the following paragraph:

All material is guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra cost will be executed only upon written orders, and will become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or delays, beyond our control. Owner to carry fire, tornado, and other necessary insurance. Our workers fully covered by workmen’s compensation insurance.

It is well established that parties to a contract may mutually agree that one party will obtain insurance as part of the bargain, to shift the risk of loss from both of them to the insurance carrier. If loss occurs, they are deemed to have agreed to look solely to the insurance, without regard to which party was negligent, and subrogation is not allowed. Housing Investment Corp. v. Carris, 389 So.2d 689 (Fla. 5th DCA 1980); Smith v. Ryan, 142 So.2d 139 (Fla. 2d DCA 1962). But it is equally well established that a limitation of liability for one’s negligent acts will not be inferred unless the intention is expressed in unequivocal terms. Tout v. Hartford Accident and Indemnity Company, 390 So.2d 155 (Fla.3d DCA 1980). The loss in this case occurred long after the contract was performed.

We have carefully read the cases cited to us by appellees, but none deal with whether such a building contract insurance provision is effective and endures years after the building construction is complete. In Weems v. Nanticoke Homes, Inc., 37 Md.App. 544, 378 A.2d 190 (1977), the fire loss occurred during the construction period before the owner took possession. In Tuxedo Plumbing & Heating Co., Inc. v. Lie-Nielson, 245 Ga. 27, 262 S.E.2d 794 (1980), the fire loss occurred while the contractor was working on the apartments. Although not expressly stated, Smith, Tout, and Housing Investment Corporation, also dealt with the situations where the contractor or owner were still in the process of performing their contract, and both had an insurable interest in the equipment, materials and labor being put into the structure.

The normal and reasonable interpretation of such insurance provisions is that the parties intended to cover that period of time during which both have an insurable interest in the structure and equipment. Here Taylor’s interest needed protection because he was not to be paid at all until the units were installed and functioning. The parties could bargain for and shift the risk of loss as part of the construction contract. But after the contract was performed, and Taylor paid in full, the duty of the owner to insure for Taylor’s benefit was likewise completed. There is no consideration for an on-going obligation of Fairchild to continue to insure his home for Taylor’s benefit.

Further, if intended by Taylor as a perpetual exculpation of liability for his negligence, this provision in the construction contract was so obscure and indefinite as to be unenforceable. Tout. The sentence regarding insurance is sandwiched between other sentences dealing only with performance of the contract. It is in very small print, and it is neither express nor unequivocal.

REVERSED AND REMANDED.

DAUKSCH, C. J., and COWART, concur.

      . If such insurance provisions were given the interpretation argued for by appellees, it would make contractor liability policies virtually redundant. We note in this case the presence of such a carrier for the contractor.


author: PER CURIAM. COWART, Judge, DAUKSCH, Chief Judge,

text:
    George Henry BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1344.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    Richard S. Rhodes, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, J., concurs.

COWART, J., concurs specially with opinion.

DAUKSCH, C. J., dissents with opinion.

COWART, Judge,

concurring specially:

I am for affirming the trial court, not because it was harmless error for the trial judge to not give the requested jury instruction regarding impeachment and not because the instruction which was given related to the specific evidence offered for impeachment purposes, but because I do not consider any instruction on impeachment essential or its omission error. Impeachment as a legal concept relates only to the legal reason or purpose for the admissibility of a certain class of evidence. Obviously if such evidence is not admitted the jury cannot consider it and, just as obviously, if it is admitted they can. The jury need not be told that they can consider matters admitted in evidence; that is the very reason all evidence is admitted and is self-evident. The jury innately understands this. The trial judge in instructing the jury should not be required to illustrate the obvious, explain the evident, or expatiate the commonplace.

Neither does the trial judge need to explain the specific purpose for which the proponent offered and the court permitted the introduction of particular evidence, except in a few instances where evidence is received for a limited purpose and a cautionary or limiting instruction is proper. Substantive law does not require that the jury give any particular weight to evidence admitted for the purpose of impeachment. If such evidence genuinely detracts from the credibility of a witness then the jurors will naturally give it that effect; if they do not, then it had no value for that purpose anyway. Either way no instruction is needed. Counsel can argue to the jury the weight that admitted evidence should be given and the reasons. There should not be a standard jury instruction on impeachment evidence. Requiring the trial court to explain to the jury the purpose for which the various items of impeaching evidence was offered and to instruct them that they “should consider such evidence” gives it undue emphasis and weight for that purpose. This should not be done.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent.

In my opinion the trial judge erred in refusing to give the requested standard jury instruction regarding impeachment generally, Florida Standard Jury Instruction (Criminal) 2.13(e)-l:

A witness may be discredited or the weight of his testimony weakened or destroyed by proof that:
1.The witness has at another time made statements which are inconsistent with his present testimony;
2. The witness has been convicted of a crime.
3. The general reputation of the witness for truth, veracity, honesty or integrity is bad; or
4. The statement of the witness is inconsistent with the testimony of other witnesses or established facts.
The weight to be given evidence tending to discredit a witness and the weight to be given the testimony of a witness whose reliability has been attacked are matters for you to determine in the light of all the evidence in the case.

The trial judge refused to give that instruction saying it was unnecessary because he was giving Florida Standard Jury Instruction (Criminal) 2.13(e)-3:

When an attempt is made to discredit a witness by showing a bad reputation for truth and veracity, or honesty and integrity) you should consider such evidence along with any evidence of good reputation as to those traits of character.

By its affirmance the majority seems to be saying either the error was harmless or the failure to give the instruction was not error because that instruction which was given covered the evidence in this case. The latter is not correct because there was no evidence regarding the witness’ reputation as contemplated by the given instruction but there was evidence regarding his inconsistent statements, his conviction of a crime (and revocation of probation), and his testimony was inconsistent with another witness (the appellant). All of these emphasized portions are covered in the general instruction which should have been given and are not covered by the reputation instruction which was unnecessarily given. See United States v. Garcia, 530 F.2d 650 (5th Cir. 1976). It was reversible error to fail to give the instruction because the jury should be advised on all the law applicable to the case before it. See Bunn v. State, 363 So.2d 16 (Fla.3d DCA 1978), cert. denied, 368 So.2d 1373 (1979).

      . As in similar fact evidence. See § 90.404(2), Fla.Stat. (1979).


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

text:
    Louie L. WAINWRIGHT, Secretary, Department of Corrections, Appellant, v. Ward Thomas EVANS, Appellee.
    No. 80-827.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for appellant.
    Ward Thomas Evans, pro se.
   FRANK D. UPCHURCH, Jr., Judge.

Louie L. Wainwright, Secretary, Department of Corrections, appeals from an order granting appellee a writ of habeas corpus and dismissing with prejudice a charge of violation of parole.

By the terms of the approved release plan, appellee was permitted to travel to Georgia and serve the period of parole under the supervision of Georgia authorities. While in Georgia, appellee committed a crime which was reported to Florida officials by his Georgia supervisor. On June 2, 1975, the Florida Parole and Probation Commission issued a “Warrant for Retaking Paroled Prisoner.”

Appellee pleaded guilty to the crime committed in Georgia and was sentenced to five years. He was released to Florida on November 27, 1979. On January 5, 1980, the state held a parole revocation hearing which resulted in the revocation of appel-lee’s parole. Appellee then petitioned for a writ of habeas corpus which was granted dismissing the parole violation charges with prejudice. The trial court held that under Gaddy v. Turner, 376 So.2d 1225 (Fla.2d DCA 1979), the state had violated appellee’s rights by failing to hold a hearing pursuant to appellee’s request of September 12, 1978 for final disposition of the warrant within one hundred eighty days as required by section 941.45(3)(a) Florida Statutes.

The state contends that Gaddy does not apply because: (1) Gaddy involved a probation violation whereas the instant case concerns a parole violation, and (2) Gaddy absconded to Georgia whereas appellee was in Georgia pursuant to the conditions under which his parole was granted.

Section 949.07, Florida Statutes, allows this state to enter into compacts with other states allowing for parolees and probationers to reside in another party state. It was under this section that appellee was permitted to reside in Georgia. Subsection (3) of this section enables officers of the sending state to enter the receiving state to apprehend and retake parolees, but,

if at the time when a state seeks to retake a probationer or parolee there should be pending against him within the receiving state any criminal charge, or he should be suspected of having committed within such state such a criminal offense, he shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.

§ 949.07(3), Fla.Stat. (1979).

The record does not show whether Georgia consented to appellee’s return to Florida, but it does reflect that Georgia agreed to notify Florida thirty days in advance of appellee’s release to enable Florida to arrange to take custody. The record is also silent as to whether Florida requested the return of appellee prior to his discharge.

Section 941.45, Florida Statutes, encourages the expeditious and orderly disposition of charges based on untried indictments, informations, or complaints. This section does not state that it covers charges concerning probation violations or parole revocations. However, the Second District Court of Appeal concluded that probationers were within the coverage of section 941.45 because untried charges may obstruct programs of prisoner treatment and rehabilitation. Gaddy. It would seem that the same factors would apply to parolees but the Florida Supreme Court has decided that federal ease law “does not require Florida to hold immediate parole revocation hearings for parolees who have been convicted of intervening offenses and are imprisoned elsewhere, either by sending its Parole and Probation Commission out of state or by recalling the prisoner or parolee.” Hofmann v. Wainwright, 332 So.2d 18, 20 (Fla.1976), cert. denied, 429 U.S. 981, 97 S.Ct. 494, 50 L.Ed.2d 590 (1976). The court reasoned that to comply with the petitioner’s contention, Florida would be required to make the necessary transfer arrangements and pay the costs of bringing every parolee convicted of a criminal offense in another jurisdiction to Florida or to send the Parole Commission to where he is incarcerated for a revocation hearing. Such factors are also present in a probation matter. However, we conclude that the supreme court considered these factors and rejected them in Hofmann v. Wainwright. Section 941.45 was enacted in 1973, well before Hofmann which was decided in 1976. To make a distinction between parolee and probationers is difficult to justify because the same inconvenience and expense to Florida are present in both. To afford one who absconds to another state as a probationer and is subject to extradition the right to a dispositive hearing within 180 days and to deny such right to one who is in the other state pursuant to the terms of his parole is illogical.

Other states which have considered similar questions have held that the Interstate Agreement on Detainers did not apply to parole or probation matters. They reason that a parole or probation revocation matter is not “an untried indictment, information or complaint” within the meaning of the Agreement. Concerning probation see: State v. Knowles, 270 S.E.2d 133 (S.C.1980), and the cases cited therein; Suggs v. Hopper, 234 Ga. 242, 215 S.E.2d 246 (1975). Concerning parole see: Buchanan v. Michigan Department of Corrections, 50 Mich.App. 1, 212 N.W.2d 745 (1973); Sable v. Ohio, 439 F.Supp. 905 (W.D. Okl. 1977).

Appellee also argues that even if he was not entitled to a revocation hearing under 949.07, Florida Statutes, until his return to Florida that he was entitled to a hearing within ten days of his return. Section 949.11, Florida Statutes, provides that any person whose parole or probation is revoked pursuant to 949.10 shall be given a hearing pursuant to section 947.23 or section 948.06 within ten days. Section 949.10, however, is not applicable, because it applies only to a subsequent felony arrest which, under the statute, constitutes prima facie evidence of the violation of the terms and conditions of parole or probation.

The order appealed is REVERSED and the writ of habeas corpus QUASHED.

DAUKSCH, C.J., and COWART, J., concur.


text:
    Rudolph HARDICK and Prentice Mortgage Co., Appellants, v. William H. HILL, d/b/a Harbor Boat Mfg. Company, Appellee.
    No. 80-76.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    James F. Dressier and Joan H. Bicker-staff, Cocoa Beach, for appellants.
    Larry F. Witte of Grimditch, Bentz, Witte & Wunker, P. A., Pompano Beach, for appellee.
   SHARP, Judge.

This is an appeal from a final judgment disallowing appellants any recovery against appellee in a suit for conversion. We affirm because under the facts established by the record, Hill had a superior right to the Harbor cabin cruiser in question and there was evidence to support the trial judge’s conclusion that the parties agreed to an exchange of boat trailers after Hill repossessed the cruiser and trailer.

Hill sold Horvath (a boat broker) a Harbor cabin cruiser and trailer. At that time Hill delivered to Horvath the boat, the trailer, a sales invoice, the manufacturer’s statement of origin, the warranty package, and the keys. Hill made no effort to retain a security interest in the boat and trailer under Article 9 of the Uniform Commercial Code, but it is clear the parties intended that the goods would be paid for on delivery to the buyer, Horvath. Horvath gave Hill checks in full payment for the goods, but the check for the boat was dishonored. At that point Hill became an unpaid seller with a right to repossess the goods as against Horvath. So long as there was no intervening good-faith purchaser or lender with a superior perfected security interest, Hill had the right to cancel the sale and repossess the boat from Horvath.

Prior to Hill’s repossessing the boat, Hor-vath took the package of boat documents to Prentice and Hardick. The evidence was conflicting as to whether Prentice and Har-dick purchased the boat from Horvath, or whether they entered into a floor-planning arrangement with him. However, the record is sufficient to sustain a conclusion by the trial court that it was essentially a financing arrangement, subject to the provisions of Article 9. They paid Horvath 90% of the invoice price, and they entered into an agreement with Horvath which allowed him to have possession and control of the boat for purposes of selling it. The agreement required him, when he sold the boat, to repay Prentice and Hardick at an increasing rate, depending on the time required to effect a sale. Prentice and Har-dick kept the boat documents, but they did not file under the Code to perfect a security interest in the boat. Horvath had the cruiser at a friend’s marina at the time Hill repossessed it.

Prentice and Hardick held an unperfected interest in the cruiser. Hill held a right to repossess the boat as against Horvath. This interest, recognized by Article 2 of the Uniform Commercial Code, was similar to a competing unperfected security interest in the boat. Because Hill’s interest in the boat predated Prentice and Hardick’s, his rights in the boat were superior to theirs.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Ch. 679, Fla.Stat. (1979).

      . §§ 672.507(2) and 672.511(3), Fla.Stat. (1979). See Trumbull Chevrolet Sales Co. v. Seawright, 134 So.2d 829 (Fla. 1st DCA 1961); Ranchers and Farmers Livestock Auction Co. v. Honey, 38 Colo.App. 69, 552 P.2d 313 (1976).

      . § 679.113, Fla.Stat. (1979); American National Bank of Jacksonville v. Riser, 212 So.2d 343 (Fla. 1st DCA 1968).

      . § 672.703(6), Fla.Stat. (1979).

      . § 679.102, Fla.Stat. (1979).

      .§ 679.312(5)(b), Fla.Stat. (1979).


author: COWART, Judge. DAUKSCH, Chief Justice,

text:
    David GREENE, Appellant, v. STATE of Florida, Appellee.
    No. 79-1129/T4-566.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 1981.
    Richard L. Jorandby, Public Defender, and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

The judgment and sentence are affirmed without prejudice to appellant’s right to seek compliance with section 39.111(6)(e), Florida Statutes (1979), in the trial court. See Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981); Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981).

AFFIRMED.

ORFINGER, J., concurs.

DAUKSCH, C. J., concurs specially with opinion.

DAUKSCH, Chief Justice,

concurring specially:

I agree with the opinion of the majority and say the appellant may make application to the trial court for the requisite relief not only under the Chapter 39 provision but under the Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), decision. Florida Rule of Criminal Procedure 3.850 provides for such relief.


text:
    Albert BALLENTINE, Appellant, v. STATE of Florida, Appellee.
    No. 79-1718.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Richard L. Jorandby, Public Defender and Robert C. Fallon, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Borden v. State, 402 So.2d 1176 (Fla.1981).

LETTS, C. J., and MOORE and GLICK-STEIN, JJ., concur.


text:
    KAY-JO’S MOTORCYCLE SERVICES, INC., a Florida corporation, Appellant, v. Tim LEWIS, Appellee.
    No. 79-1961.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Edward A. Garrison of Kohl, Springer, Springer & Garrison, Palm Springs, for appellant.
    Bernard A. Conko of Brennan, McAliley, Hayskar, McAliley & Deckert, P. A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See, Bielek v. Drs. Bielek, Birely and Salerno, 366 So.2d 44 (Fla. 4th DCA 1979).

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


text:
    Dwight E. COOMBS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1976.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Philip G. Butler, Jr. of Foley, Colton & Butler, P.A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Barfield v. State, 396 So.2d 793 (Fla. 1st DCA 1981); Antone v. State, 382 So.2d 1205 (Fla.1980).

LETTS, C. J., and ANSTEAD, J., concur.

HURLEY, J., dissents.


text:
    AL MAR CORPORATION, INC., a Florida Corporation, Appellant, v. Robert VAN DE KERCKHOVE and Madelyn Van De Kerckhove, his wife, et al., Appellees.
    No. 79-2583.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Michael J. Ryan of Ryan & Ryan, North Palm Beach, for appellant.
    Andrew Helgesen of Bratten & Harris, P. A., West Palm Beach, for appellees.
   PER CURIAM.

The owner of a trailer park appeals from a final judgment holding that dedicated easements for private drives through the trailer park have not terminated and that an easement by prescription has been acquired over the private drives. We affirm in part and reverse in part.

The subdivision in question consists of a trailer park on the east and residential lots on the west. The residential lots face on Redbank Drive, a dedicated public road which runs from Ellison Wilson Road on the west to the trailer park on the east. At the east end of Redbank Drive are two private drives, North Redbank Drive and Seabright Drive, which extend parallel from that point eastward through the trailer park to U. S. Highway I.

The original plat of the subdivision expressly recited that the owners:

grant easements in the drives, private roads, walks and common grounds to the extent necessary for the use, benefit and service of the owners of all sublots and parcels in this subdivision and reserving unto themselves, their heirs, successors and assigns or legal representatives the reversion or reversions of all easements or rights of way whenever the same shall be abandoned or discontinued by law.

The dispute here is between appellant, trailer park owner, who seeks to have North Redbank Drive and Seabright Drive closed off to vehicular traffic from and to Red-bank Drive, and appellees, the owners of property along Redbank Drive, who wish to maintain vehicular access to U. S. Highway I through the trailer park. At trial appellant’s sole witness testified that the easements for vehicular traffic on North Red-bank Drive and Seabright Drive were no longer necessary as the property owners on Redbank Drive had ready access in all kinds of weather to Ellison Wilson Road on the west, which they did not have when the subdivision was platted. She further testified that the vehicular traffic over the private drives through the trailer park was “like Grand Central Station” and constituted a safety hazard. Appellant had no objection to a pedestrian easement through the trailer park. Appellees presented evidence that the residents along Redbank Drive have continued to use North Redbank Drive and Seabright Drive constantly for over twenty years.

Our only quarrel with the final judgment is the inconsistency in finding the dedicated easements not to be terminated and at the same time concluding an easement by prescription was acquired. . One easement cannot be characterized by the elements necessary both for permissive and prescriptive use. In Downing v. Bird, 100 So.2d 57, 64 (Fla.1958), the court said:

In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. In both rights the use or possession must be inconsistent with the owner’s use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment.

The use of the private drives here was pursuant to the dedicated easements. Further, the pleadings reflect that in an earlier dispute over continued vehicular use of one of the two private drives the owners of the residential lots and the prior owner of the trailer park stipulated to the entry of an injunction, preventing the trailer park owner from obstructing access to the drive. The stipulation is consistent with permissive use.

Accordingly, we affirm that part of the final judgment which holds the dedicated easement not to have terminated and reverse the conclusion that an easement by prescription was acquired.

AFFIRMED IN PART and REVERSED IN PART.

MOORE, BERANEK and GLICKSTEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Michael Alan COX, Appellee.
    No. 80-704.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla. 1981), and remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, MOORE and BERANEK, JJ., concur.


text:
    STATE of Florida, Appellant, v. Brent Charles ROWLAND and David Lawrence Carolan, Appellees.
    Nos. 80-705, 80-706.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for appellees.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981) and remanded for further proceedings.

REVERSED AND REMANDED.

LETTS, C. J., HERSEY and GLICK-STEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Robert LINK, Appellee.
    No. 80-830.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance by appellee.
   PER CURIAM.

The trial court’s order of April 29, 1980, which declared Section 893.135, Florida Statutes (1979) to be unconstitutional and, thereupon, dismissed the information, is reversed upon the authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

REVERSED and REMANDED for further proceedings.

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


text:
    Jeanne RODENWALD and Allstate Insurance Company, Appellants, v. Jacquelyn LAWTON and James Lawton, Appellees.
    No. 80-880.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Michael B. Davis of Walton Lantaff Schroeder & Carson, West Palm Beach, for appellants.
    Hubert R. Lindsey, West Palm Beach, for appellees.
   PER CURIAM.

Jurisdiction of this cause was previously relinquished to the trial court with directions to state the reasons in support of the trial court’s order granting new trial. The trial court has entered an order certifying his inability to comply with this court’s directions and the order granting new trial is therefore reversed and the verdict reinstated.

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


text:
    STATE of Florida, Appellant, v. Carlos John ALFARO, Jose Ramon Vera, and Fernando Ortega, Appellees.
    Nos. 80-895 to 80-897.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Geoffrey C. Fleck of Weiner, Robbins, Tunkey & Ross, P. A., Miami, for appellee, Ortega.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla.1981), and remanded for further proceedings.

REVERSED AND REMANDED.

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


author: LETTS, Chief Judge.

text:
    Christopher TRENT, Appellant, v. STATE of Florida, Appellee.
    No. 80-951.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Rehearing Denied Oct. 14, 1981.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

This cause is reversed and remanded upon the authority of Richardson v. State, 398 So.2d 1010 (Fla. 1st DCA 1981) which we adopt as the law of the Fourth District.

We do not like this result and entertain serious doubts as to whether the legislature ever intended such preferential treatment for youthful offenders who commit armed robbery. Nonetheless a “life felony” is most definitely a completely different animal from a felony in the first degree punishable by life imprisonment. See Section 775.082(3), Florida Statutes (1979) and Dade County v. Goldstein, 384 So.2d 183 (Fla. 3d DCA 1980).

There remains the question of why it is not harmless error to sentence a youthful offender to a three year minimum term of imprisonment under Section 775.087, if the court could have sentenced him to six years, four of which could have been by actual imprisonment under Section 958.05. The answer is that under the minimum mandatory provisions of Section 775.087 we note that the prisoner is not eligible for parole or statutory gain-time. Accordingly, the harmless error doctrine is not appropriate here.

REVERSED AND REMANDED.

BERANEK and MOORE, JJ., concur.


text:
    STATE of Florida, Appellant, v. Robert James WATERMAN, Jay Travis Jernigan and Roy Ralph Barton, Appellees.
    Nos. 80-1532 to 80-1534.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard Lubin, West Palm Beach, for ap-pellee Waterman.
    Philip Carlton, Jr., Miami, for appellee Jernigan.
    John L. Sutton, Fort Lauderdale, for ap-pellee Barton.
   PER CURIAM.

Reversed on the authority of State v. Benitez, 395 So.2d 514 (Fla. 1981) and remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


text:
    George POPP, Jr., Appellant, v. Patricia POPP, Appellee.
    No. 80-1608.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Robert D. Halstead, Jr. of Farish, Farish & Romani, West Palm Beach, for appellant.
    Edna L. Caruso and Susan J. O’Hara, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Hartley v. Hartley, 399 So.2d 1126 (Fla. 4th DCA 1981).

DOWNEY and GLICKSTEIN, JJ., and PEARSON, DANIEL S., Associate Judge, concur.


text:
    Louann THIBAULT, a/k/a Luann Thibault, and Joy Zeissler, Appellants, v. STATE of Florida, Appellee.
    No. 80-1615.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellants.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Lawrence v. State, 388 So.2d 1250 (Fla. 4th DCA 1980); also see Jollie v. State, 405 So.2d 418 (Fla.1981). Our affirmance herein passes upon the same question certified in Lawrence v. State, supra.

AFFIRMED.

LETTS, C. J., and DOWNEY and BERA-NEK, JJ., concur.


text:
    STATE of Florida, Appellant, v. Mark Edward CHIRIBOGA, Appellee.
    No. 81-86.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

REVERSED AND REMANDED on authority of State v. Benitez, 395 So.2d 514 (Fla.1981).

DOWNEY, MOORE and GLICKSTEIN, JJ., concur.


author: HERSEY, Judge.

text:
    Ann H. SILVERS, Appellant, v. DIS-COM SECURITIES, INC., Appellee.
    No. 81-133.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.

      Frank J. Bennardo, Boca Raton, for appellant.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resniek, Schneider & Mager, P. A., Hollywood, for appellee.
   HERSEY, Judge.

After voluntarily terminating her employment with Dis-Com Securities, Inc., Ann H. Silvers accepted a position with Dominick & Dominick as an account executive engaged in the business of buying and selling securities. On the basis that such employment was in direct violation of a covenant not to compete, both as to the nature of the business and its location, Dis-Com obtained a temporary injunction restraining Silvers from competing with her former employer. This appeal tests the validity of that restraint.

The legal framework within which this controversy is to be determined commences with the common law prohibition against agreements in restraint of trade and ends with the statute which codifies the common law but which permits the limited use of covenants not to compete. § 542.12, Fla. Stat. (1979). That statute provides:

(2)(a) . . . one who is employed as an agent or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area, ... so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction.

We are asked to determine whether the statute has been properly applied to the facts of this case and, if so, whether the remedy is appropriate.

After being employed in a clerical position for some period of time, Silvers, at the expense of her employer, Dis-Com, was trained and then licensed for the position of registered representative. On February 28, 1978, the parties entered into an agreement which provided, in pertinent part:

In the event of the termination voluntarily or involuntarily, of the undersigned’s employment with the “companies”, or any of them, for any reason, then for a period of one (1) year from the date of said termination, the undersigned will not engage, in any capacity, in Dade or Broward Counties, Florida, directly or indirectly, in the securities business with a stock brokerage firm who is not a member of a National Stock Exchange or with any stock brokerage firm who in the regular course of its business discounts its commission rates regardless of whether the stock brokerage firm is a member of a National Stock Exchange, or any other business similar to the business being operated by the “companies”, or any of them during the period of employment, and will not solicit or contact, directly or indirectly, any customers of the “companies”, or any of them, which the “companies”, or any of them, now have or may have during the period of employment of the undersigned by the “companies”, nor give the names or addresses or information concerning said customers to anyone, nor induce any of the “companies’ ” employees to leave the employ of the “companies”.

Thereafter Silvers terminated the employment relationship and, although she had an offer from a firm that was not in competition with Dis-Com, she accepted a position with a firm within the prohibited area and which “in the regular course of its business discounts its commission rates.”

The trial court modified the covenant not to compete by excluding a portion of the area in which competition was not allowed. In all other respects the covenant was deemed reasonable and therefore unobjectionable. Because (1) Silvers’ place of employment was within the reduced area in which competition was prohibited; (2) her new employer operated at discounted rates; and (3) the one year period had not expired, Silvers was prohibited from continuing in that employment during the pendency of the litigation.

Only one argument is made on the issue of whether the statute was appropriately invoked in this case. The balance of appellant Silvers’ brief is devoted to the propriety of injunctive relief.

It is appellant’s contention that the agreement is too vague to be enforceable under the statute. She maintains that since May of 1975 when fixed rate commissions for stock brokers were abolished the term “discounted commission” has no clear meaning. This being so, reference in the agreement to “any stock brokerage firm who in the regular course of its business discounts its commission rates” is not sufficiently definitive, rendering the entire covenant vague, meaningless and unenforceable. The trial court impliedly determined that appellant’s new employer fell within this prohibited category. Evidence in the record amply supports such a finding. We are not persuaded that the term is too vague to permit enforcement. We further agree that appellant’s conduct violated the covenant. The remaining question is whether injunctive relief was appropriate.

There has been a plethora of cases during the past decade dealing with this issue. From these cases arise several settled principles and a few unanswered questions.

(1) The covenant not to compete.

The statute provides that an agreement not to compete “within a reasonably limited time and area ...” is enforceable. Thus a prerequisite for enforceability is that the covenant appear on its face to be reasonable. This is part and parcel of plaintiff’s cause of action so that the court may address the issue of reasonableness in time and area whether or not the defendant raises the question in his pleadings. On the other hand if the covenant appears on its face to be reasonable then the burden shifts to the defendant to plead and prove that it is for some reason not reasonable on the facts of the particular case. Tomasello, Inc. v. de Los Santos, 394 So.2d 1069 (Fla. 4th DCA 1981). The trial court found that the covenant between Silvers and Dis-Com was reasonable as to time (one year) but unreasonable as to area (Dade and Broward Counties). The injunction therefore prohibited competition in a more limited area than provided for in the covenant but still including the location of Silver’s new place of employment. The court clearly has the authority to modify both the time and area aspects of a covenant not to compete. Indeed the court may in effect increase the length of the period if it is necessary to do equity. Enforceability, then, requires a balancing of “the legitimate interest of the employer . . . the public interest . .. and . . . [the] result [of such enforcement] on the employee.” Capelouto v. Orkin Exterminating Co. of Florida, 183 So.2d 532, 534 (Fla. 1966). The injunction issued below meets this test of reasonableness.

(2) Stating a cause of action.

This court recently had occasion to enumerate the elements which must be proven to support the award of a temporary injunction. In Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734, 735 (Fla. 4th DCA 1980) we held that a party must prove:

(1) irreparable harm, (2) a clear legal right, (3) an inadequate remedy at law, and (4) considerations of the public interest. State Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977). Moreover, since a temporary injunction is an extraordinary remedy, it should be granted sparingly and only after the moving party has alleged and proven facts entitling it to relief. Jennings v. Perrine Fish Market, Inc., 360 So.2d 434 (Fla.3d DCA 1978).

We point out this general rule as a starting point only, with the admonition that proceedings involving Section 542.12, Florida Statutes (1979) appear to operate under modified guidelines. The rule is set out in Hunter v. North American Biologicals, Inc., 287 So.2d 726 (Fla. 4th DCA 1974). In that case we said that in order to state a cause of action to enforce a covenant falling within the purview of the statute it was necessary only to allege:

(a) The contract
(b) The appellant’s intentional direct and material breach thereof.
(c) No adequate remedy except by in-junctive relief.
The court, when considering a motion to dismiss must accept these allegations as true. The allegations are sufficient to state a cause of action under the statute. Id. at 728.

The complaint in the instant case meets these criteria and is therefore sufficient. Implicit in our holding is a recognition that irreparable injury may be presumed in cases involving violation of a covenant not to compete or not to divulge trade secrets. It need not be alleged nor proved.

In at least one case a different rule has been followed. In Uni-Chem Corp. of Florida, Inc. v. Maret, 338 So.2d 885, 887 (Fla.3d DCA 1976) the court stated that:

Notwithstanding statutory right to in-junctive relief [see: § 542.12, Fla.Stat.], upon proof of a valid covenant not to compete said statutory provision does not negate the necessity of showing irreparable harm as a prerequisite to the granting of a temporary injunction. Wilson v. Sandstrom, 317 So.2d 732 (Fla.1975).

We respectfully disagree with our sister court. The Wilson case relied on by that court did not involve an application of the statute authorizing covenants not to compete.

(3) The remedy: injunctive relief.

For the same reasons that justify an assumption that the employer will be irreparably damaged by breach of a non-compete provision it will customarily be obvious that money damages, even if susceptible of reasonable proof, may not compensate for all aspects of such a violation. Injunctive relief is therefore the “favored remedy.”

“The Court may award damages for breach of contract but the normal remedy is to grant an injunction.” Miller Mechanical, Inc. v. Ruth, 300 So.2d 11, 12 (Fla.1974). That was done here and we think appropriately so.

(4) Temporary v. Permanent injunctive relief.

We can find no clear lines drawn by the cases in this area between an application for relief pending the outcome of the litigation and final injunctive relief. The usual rule is that a temporary injunction is an extraordinary and drastic remedy which should be sparingly granted. Jennings v. Perrine Fish Market, Inc., 360 So.2d 434 (Fla.3d DCA 1978). On the other hand, the establishment of legal rights carries with it the duty to grant an appropriate remedy. Data Supplies, Inc. v. Cowart, 240 So.2d 829 (Fla.2d DCA 1970). Because the statute specifically provides for injunc-tive relief and for the added reason that most or all of the harm may be done long before a final judgment is entered, we hold that where the proof supports the skeletal allegations that we have previously approved as stating a cause of action then temporary or emergency injunctive relief may properly be granted. The record in the instant case contains sufficient evidence to support the relief granted.

We have previously determined that the covenant is not void for vagueness. The record clearly supports the conclusion that appellant entered into the agreement and then intentionally violated the covenant not to compete.

If contracts are to have any viability at all, there must be some means of meaningful enforcement available from the courts. This is increasingly true as society becomes, or is perceived by many as having become, more litigious. The bargain struck and perpetually enshrined by a simple handshake is a thing of the past. Society needs assurance that written contracts will not follow in the footsteps of the “gentlemen’s agreement” and become extinct.

We therefore affirm.

AFFIRM.

MOORE and GLICKSTEIN, JJ., concur.


text:
    MAILMAN DEVELOPMENT CORP., Petitioner, v. E. M. SEGALL, Trustee, et al., Respondents.
    No. 81-904.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.

      James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner.
    Maurice M. Garcia of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood; Bernard S. Mandler of Smith, Mandler, Smith, Werner, Jacobowitz & Fried, Miami Beach, Raymond Ferrero, Jr., of Ferrero, Middlebrooks & Strickland, Fort Lauderdale, and Larry Klein, West Palm Beach, for respondents.
   PER CURIAM.

The petitioner seeks review by certiorari of the trial court’s order entered subsequent to this court’s order staying all further proceedings in the trial court.

Petitioner/mortgagee is foreclosing a mortgage against the respondent/mortgagor. Prior to trial, petitioner/mortgagee sought review by certiorari of a discovery order entered by the trial court. This court, upon the filing of the petition, entered a stay order prohibiting further proceedings in the trial court.

Thereafter, the respondent/mortgagor moved in the trial court for the substitution of the security interest in the real property. The trial court granted the motion and released the mortgage on the real property. In lieu of the petitioner’s/mortgagee’s lien on the property, the trial court allowed the respondent/mortgagor to deposit $1.25 million dollars into the registry of the court.

Upon the issuance of a stay order, by this court, the trial court should not have converted the security interest in real property into cash. See Banning v. Brown, 73 Fla. 54, 74 So. 23 (1917); Sunrise Beach, Inc. v. Phillips, 181 So.2d 169 (Fla. 2d DCA 1965); McLean v. McLean, 340 So.2d 493 (Fla. 1st DCA 1976). Moreover, the petitioner/mortgagee should not be required to accept a substituted security interest since a mortgage lien is a property right which cannot be extinguished and other security substituted except by agreement of the parties, where the property is sold at judicial sale, or taken under the power of eminent domain. Substituted security cannot be forced upon the lien holder in place of his lien. See Seaboard All-Florida Railway v. Leavitt, 141 So. 886 (Fla.1932); White v. White, 129 So.2d 148 (Fla. 1st DCA 1961); 59 CJS Mortgages § 187.

Accordingly, the order authorizing the substitution of security and the release of the mortgage lien on the real property is quashed since it departs from the essential requirements of law. Kilgore v. Bird, 6 So.2d 541 (Fla.1942) and Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979).

The petition for writ of certiorari is granted.

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


text:
    Jim David HARDISON, Appellant, v. STATE of Florida, Appellee.
    No. 81-692.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1981.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. Although appellant has not raised this point, the sentence imposed herein may be illegal under the doctrine of Villery v. State, 396 So.2d 1107 (Fla.1980). Accordingly, this affirmance is without prejudice to appellant seeking resentencing by raising the Villery issue in a motion filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.850.

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


author: GRIMES, Judge.

text:
    John RUMBOUGH and Polly Rumbough, his wife, Appellants, v. CITY OF TAMPA, a municipal corporation, Appellee.
    No. 80-2209.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1981.

      George W. Phillips, Tampa, for appellants.
    Joseph G. Spicola, Jr., City Atty., and James A. Sheehan, Asst. City Atty., Tampa, for appellee.
   GRIMES, Judge.

This appeal requires us to determine the applicability of the statute waiving sovereign immunity to cases involving nuisance.

Appellant sued the City of Tampa for damages caused by the operation of a sanitary landfill or garbage dump near their home. They alleged that after they bought their home, the city expanded the South Manhattan Landfill in the direction of their property and that, as a consequence, the foul odors permeating therefrom had substantially impaired the use and enjoyment of their property. One of the city’s defenses to the suit was sovereign immunity. The city filed a motion for summary judgment together with the affidavit of its claims manager which stated that the city had paid $100,000 in settlement of claims and lawsuits asserting damages caused by the landfill. The court entered summary judgment for the city finding that the city’s decision to expand South Manhattan Landfill was a discretionary function thereby rendering it immune from suit under the rationale of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), and that in any event the city had reached its statutory limitation on the payment of damages. The court specifically noted that the allegations of nuisance at the landfill constituted a single act or occurrence under section 768.28(5), Florida Statutes (1979).

Traditionally, sovereign immunity protected the State of Florida and its agencies from suits grounded upon nuisance. See Schmauss v. Snoll, 245 So.2d 112 (Fla.3d DCA 1971). On occasion, the courts tempered the harshness of this rule by requiring the state to commence condemnation proceedings because its activities had effectively destroyed an owner’s beneficial use of his land. E. g., State Road Department v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941). Cities, on the other hand, have always been liable for damages caused by their nuisances without regard to sovereign immunity. City of Lakeland v. Douglass, 143 Fla. 771, 197 So. 467 (1940). Therefore, our first task is to decide whether the legislation providing for a limited waiver of sovereign immunity has altered these principles.

Section 768.28(1), Florida Statutes (1979), reads as follows:

(1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under cir-eumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.

Obviously, those who drafted this statute were thinking primarily of the ordinary negligence action for personal injuries and property damage. Yet, the language appears broader in scope. Unquestionably a private nuisance is a tort. But is it caused by a negligent or wrongful act or omission? Generally, private nuisances are said to arise as the result of conduct which is (1) intentional, (2) negligent, or (3) abnormally dangerous. 4 Restatement (Second) of Torts § 822 (1979). Thus, a negligently caused nuisance would clearly fall within the wording of the statute. Of course, many nuisances are intentional but some do not involve activity thought to be reprehensible. The efficient operation of a sanitary landfill, for example, meets a pressing community need and serves a laudable public purpose. Yet, because of its inherent nature, it may under some circumstances constitute a nuisance. Therefore, can it be said to be “wrongful” so as to fall within the statutory language? We think the answer must lie in the conclusion that once an activity is legally determined to be a nuisance, it is “wrongful” for purposes of the statute, regardless of the morality involved. The same analysis would seem applicable to any abnormally dangerous activity which is characterized as a nuisance, but we need not make that decision in this case because appellants did not contend that the South Manhattan Landfill is abnormally dangerous. We also note that our sister court in Department of Transportation v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980), assumed, without debate, that section 768.28 waived the immunity of the Department of Transportation when it created a nuisance.

Having decided that section 768.28 includes nuisances, the next question is whether the statute has any applicability to cities. The supreme court recently provided the answer to that question in Cauley v. City of Jacksonville, (Fla.1981), by holding that the statute is equally applicable to cities despite the fact that they previously had no sovereign immunity. The court reasoned that there was no constitutional prohibition against legislatively granting limited immunity to cities and that the legislature intended for cities to be on the same footing as the state and its agencies.

Although we have determined that section 768.28 waives sovereign immunity in nuisance actions and is applicable to municipalities, this does not end our inquiry because even when there has been a waiver of sovereign immunity, the exercise of some governmental functions still does not provide a basis for governmental liability. Commercial Carrier Corp. v. Indian River County. This principle is bottomed on the concept of separation of powers and holds that certain discretionary or planning functions of coordinate branches of government should not be subject to scrutiny by judge or jury as to the wisdom of the actions taken. Id. at 1017-22. Thus we must consider whether the activity characterized as a nuisance in this case was the result of a discretionary or planning decision rather than a decision on the operational level. As a tool to assist in questions of this type, the court in Commercial Carrier Corp. commended the utilization of the test outlined in Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965):

“Whatever the suitable characterization or label might be, it would appear that any determination of a line of demarcation between truly discretionary and other executive and administrative processes, so far as susceptibility to potential sovereign tort liability be concerned, would necessitate a posing of at least the following four preliminary questions: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved.”

371 So.2d at 1019. When these four questions are addressed to Tampa’s decision to expand the South Manhattan Landfill, it is evident that they require affirmative answers.

Appellants do not assert that the landfill was constructed or is being operated negligently or in any manner which falls short of the appropriate standards for a landfill. While it is the operation of the landfill which inflicts the damages, such operation is nothing more than an implementation of the decision which was made at the planning level. Appellants’ grievances rest solely on the premise that the city is operating a landfill near their home. In this respect, the die was cast when the city decided to expand the landfill in a direction toward the appellants’ property. In so doing, the city was exercising a discretionary function which could not create liability.

There is a second reason why the appellants cannot recover in this case. As the court found, the city had already paid the sum of $100,000 to other residents of the area on their claims resulting from the conduct of the landfill. By its terms, section 768.28(5) limits the payment of all claims or judgments “arising out of the same incident or occurrence” to $100,000. Appellants concede that the effects of the landfill upon each surrounding landowner must be aggregated for purposes of the $100,000 maximum. However, they argue that the maintenance of a sanitary landfill over a period of years in and of itself is not an “incident or occurrence” within the meaning of the statute.

In ordinary parlance, the word incident refers to an event or happening of moment rather than something occurring over a period of time. Thus we must focus on the broader term “occurrence.” There has been frequent litigation over the word “occurrence” in the insurance field. Insurance coverage for occurrences is generally interpreted to include liability for damages which are inflicted over a period of time. E. g. Grand River Lime Co. v. Ohio Casualty Insurance Co., 32 Ohio App.2d 178, 289 N.E.2d 360 (1972). 1 R. Long, The Law of Insurance Liability § 1.25 (1980). Admittedly, most liability insurance policies broadly define the word occurrence. Yet, by using the word occurrence in the statute, the legislature may have intended that it receive a similar interpretation since the limited waiver of sovereign immunity contemplates that governmental agencies might carry liability insurance up to the statutory maximum of liability. The fact that because of the policy language the insurance cases also limit the word occurrence to cover only unintended results does not mean that an intentional nuisance could not be an occurrence, since the statute specifically waives sovereign immunity for wrongful acts. In any event, having concluded the statute waives sovereign immunity with respect to torts which constitute a nuisance, we cannot see how such torts could be divided into time segments so as to permit multiple recoveries simply because nuisances are usually continuing in nature.

AFFIRMED.

HOBSON, A. C. J., and DANAHY, J., concur.

      . Several courts have already accepted the proposition that the statute pertains to torts other than those sounding in negligence. Weston v. State, 373 So.2d 701 (Fla. 1st DCA 1979); Cobb’s Auto Sales, Inc. v. Coleman, 353 So.2d 922 (Fla. 4th DCA 1978); State ex rel. Division of Admin. v. Oliff, 350 So.2d 484 (Fla. 1st DCA 1977); Florida Dep’t. of Revenue v. Norville, 321 So.2d 95 (Fla. 4th DCA 1975).

      . But see Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972), which construed language in the Federal Tort Claims Act similar to that in section 768.28 to exclude damages caused by the nonnegligent ultrahazardous conduct of the federal government from its waiver of sovereign immunity.

      . We conceive that even in the absence of negligence the city could be liable in nuisance under the statute because of an operational decision intentionally made involving the construction or maintenance of the landfill in a substandard manner, but appellants have not alleged any such facts here.


text:
    STATE of Florida, Appellant, v. Odillio ALVAREZ, Appellee.
    No. 80-1201.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1981.
    Jim Smith, Atty. Gen., Tallahassee and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    William B. Plowman and Raymond R. Pines, Tampa, for appellee.
   RYDER, Judge.

The trial court dismissed an information charging Alvarez with the offense of conspiracy to deliver marijuana in excess of 100 pounds. In so doing, the court found that the undisputed facts did not establish a prima facie case against Alvarez. We disagree and reverse.

Alvarez’ motion to dismiss asserts that while he was present in Hilton Head, South Carolina with the other alleged co-conspirators, there is no evidence to show that an agreement existed between him and any other person to commit the crime of conspiracy to deliver marijuana. Allegedly Alvarez’ language was Spanish and during all activities set forth in the motion he spoke no English with the exception of the word “Florida.” The state’s witness, one McFarland, who was present at the meeting in South Carolina, did not speak Spanish and was unable to understand what the appellee said.

The state filed a traverse stating that the conversation in South Carolina with the other co-conspirators took place at a possible marijuana unloading site in the vicinity of Hilton Head. Although appellee was only speaking Spanish, he was directing the activities of the other Spanish speaking individuals. The other co-conspirators interpreted for McFarland. In addition, the state added that Alvarez became frustrated in his attempted negotiations with a shrimp boat captain named Jones concerning the unloading of marijuana and terminated the discussion by ordering the group back to Florida.

The trial court adopted its own unique procedure on the motion to dismiss. If the state denied a material fact in appel-lee’s motion to dismiss, the court would strike that fact and examine the rest of the motion to see if a prima facie case exists.

It should be pointed out that proceeding under rule 3.190(c)(4) is the equivalent of a civil summary judgment and the trial court may not try or determine factual issues nor substitute itself for the trier of fact and determine controverted issues of fact. State v. J.T.S., 373 So.2d 418 (Fla.2d DCA 1979). Here, the state filed a traverse denying under oath material facts alleged in the motion to dismiss, requiring automatic denial of the motion. State v. J.T.S., supra; Fla.R.Crim.P. 3.190(d).

The fallacy in the trial court’s approach to the motion is a misconception as to the effect of the denial of fact by the state. The denial does not mean that the facts alleged in the motion do not exist. The denial simply means that the facts are in dispute and therefore present a question for the jury. Once the court struck all disputed facts, it was actually ruling on a totally new pleading. This is error.

Accordingly, the order dismissing the information against appellee is REVERSED, the information is reinstated, and the cause REMANDED for further proceedings.

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