author: GLICKSTEIN, Judge. BERANEK, Judge,

text:
    The INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, a foreign corporation, and Cavico Aircraft Sales, Inc., a Florida corporation, Appellants, v. The ESTATE OF Frank GUZMAN, Deceased, by its Personal Representative Linda Guzman and Linda Guzman, Individually and Lauderdale Air Taxi, Inc., a Florida corporation, Appellees.
    No. 80-2121.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Rehearing Denied Nov. 30, 1982.

      John Murray and Joan S. Buckley of Walton, Lantaff, Schroeder & Carson, Miami, for appellants.
    Thomas F. Luken, Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

Appellee, Lauderdale Air Taxi, Inc., was awarded a final judgment of $80,000 against appellants following a jury verdict. The judgment compensated appellee for the loss of its aircraft while it was in the custody and control of Cavico Aircraft Sales, Inc., appellant. The action went to trial upon a two count complaint, later amended by stipulation. One count alleged a bailment relationship in which appellee delivered the plane to Cavico for avionics (radio) repairs and Cavico failed, and refused, to redeliver it. The second count alleged the aircraft was stolen due to Cavico’s negligence in failing to take adequate precautions against theft. Appellants claim the trial court made numerous erroneous rulings concerning the admissibility of certain evidence and jury instructions. We agree and reverse and remand the cause accordingly.

The facts are shadowy, bizarre and, in large measure, disputed. Frank Guzman owned Lauderdale Air Taxi, Inc. In March of 1979 he purchased for $80,000 in cash a DC-4 plane from a military surplus aircraft dealer located in Arizona. Once ferried to Fort Lauderdale, the plane was delivered on April 25th to Cavico, a fixed-base operator at Fort Lauderdale-Hollywood International Airport, for radio repairs. On May 2nd Guzman told his common law wife, Linda, that he was going to a meeting at a motel to sell the aircraft for $100,000 in cash. He was murdered on that date.

On May 9th, at approximately 2:30 p.m., someone manned the aircraft and flew it away. Frank Guzman, Jr., reported the aircraft as stolen. The report listed Emil Garske as a witness. In appellee’s case in chief, Garske testified that on the day the aircraft was taken he saw people wandering around it. After going to the telephone to call Guzman’s attorney, he returned to the plane to find it missing. Linda Guzman, now known as Linda Shea, testified that she assumed control of Guzman’s affairs immediately upon his death and did not authorize anyone to remove the aircraft from Cavico’s premises.

Appellants’ sole witness, Leland Cameron, portions of whose deposition were read to the jury, testified that he was a retired airline captain who was now in the airplane and parts business in California. He admitted he flew the aircraft from Cavico but claimed he did not steal it. He intended to fly the plane to Georgia to have additional equipment installed in order to satisfy a customer he had who was interested in purchasing the plane. He said someone in Tucson had told him of the aircraft. Once Cameron completed a title search, the report of which he produced at trial, he contacted appellee and talked to Roy Elder and B.H. Sandini, whom he knew as agents acting in appellee’s behalf. Cameron testified Elder authorized the flight to Georgia and provided him with a photocopy of a bill of sale, airworthiness certificate, and application for registration, all of which Cameron had with him on May 9th. Elder and he were negotiating the purchase of the aircraft for $82,000 with the resale to be for $90,000. Cameron further said that he reached the aircraft by entering a gate north of the Bush Aviation Building, a gate not under the control of Cavico, and spoke to Elder for a short time before taking off.

On rebuttal, appellee offered evidence that Sandini dealt, in stolen motor vehicles. The parties stipulated Elder had died before trial. Counsel read additional portions of Cameron’s deposition wherein the deponent testified that James Butler and Christopher Broderick accompanied him on the flight as co-pilot and flight engineer. While the aircraft was in flight forty miles west of Cross City, Florida, and over the Gulf of Mexico, Cameron explained an electrical fire caused him to ditch the aircraft, forcing the threesome into a small raft. The aircraft was lost and a freighter eventually rescued the group and took them to Mexico.

To destroy Cameron’s credibility and to create an inference that the aircraft was stolen, appellee placed Broderick on the stand, knowing he would invoke his fifth amendment privilege against self-incrimination when asked if he had stolen the aircraft from Cavico’s premises. Testimony of Garske, a pilot himself, was read, establishing that the aircraft burned 200 gallons of fuel an hour and that a flight from Fort Lauderdale to Georgia would not put the aircraft over the Gulf of Mexico at anytime.

Because access to the aircraft was an important issue, there was considerable testimony with respect to the security requirements imposed on Cavico and the precautions actually taken. As a tenant of county-owned premises, Cavico must maintain the high chain link fence that surrounds its perimeters. Large signs on its gates warn against trespassing. Cavico must also lock its access gates after hours; during normal business operations, either monitoring or locking the gates is a permissible way of detering unauthorized entry.

The county also requires its tenants to utilize a badge identification system. Un-badged personnel are to be under the surveillance and escort of authorized personnel during any period in which they are in the Air Operations Area. If an unfamiliar face appears on the premises, Cavico employees are to request appropriate identification. Cavico has an obligation to inform its employees of these procedures.

Access to the aircraft again surfaced in testimony referring to a dispute over whether payment for the repair work had occurred. (Payment would have terminated the bailment arrangement.) Cavico’s general manager, Gilbert Vince, testified someone paid appellee’s bill of $4,789.04 in cash. In return for the payment, this unidentified individual received a key to the padlock on the aircraft. Guzman, Vince testified, kept telling him he would reclaim the DC-4. When no one showed up, Cavico personnel had to move the plane from in front of Cavico’s hangar to a spot on the ramp, where the larger planes are stored.

Appellee attacked this testimony with a number of facts and assertions. First, Vince admittedly could not identify the payor. Second, an officer of Cavico testified that when the plane took off, Vince called her to ascertain whether the bill had been paid, thus raising doubts about the veracity of his testimony. Third, and perhaps most damaging, the chronology of events cast suspicion on Vince’s testimony: Cavico received the plane on April 25th; evidence showed the installation work took approximately one week, or until May 2nd, the date of Guzman’s death. Vince testified that after he received payment, about two days after he said he told Guzman the work was completed, he spoke to Guzman again about reclaiming the plane. Vince also testified Guzman went to Cavico (after May 2nd) to order more radios.

We now address the four principal issues on appeal.

I

Appellants argue the trial court erred in instructing the jury as to the rebuttable presumption that exists in a bailment relationship because they presented credible evidence to rebut the presumption. We agree, but our decision requires that we first explain why this type of presumption is sometimes classified as a vanishing presumption.

Prior to the enactment of the Florida Evidence Code, courts explained a presumption as

an inference required by a rule of law to be drawn as to the existence of one fact from the existence of some other established basic fact or combination of facts.

Caldwell v. Division of Retirement, 372 So.2d 438, 440 (Fla.1979). As Caldwell notes, two types of presumptions are recognized in Florida. One type is the vanishing presumption.

A presumption is a rule of law which attaches to certain evidentiary facts and is productive of certain procedural consequences. The presumption is not itself evidence and has no probative value. Florida follows generally [albeit not always] what is sometimes called the Thayerian rule to the effect that when credible evidence comes into the case contradicting the basic fact or facts giving rise to the presumption, the presumption vanishes and the issue is determined on the evidence just as though no presumption has ever existed. Conversely, if the basic facts are sufficiently proven so as to give rise to the presumption and not thereafter contradicted by credible evidence, the party in whose favor the presumption exists becomes entitled to a directed verdict. Thus, in either event, the presumption is productive of these procedural consequences but is not a matter for the jury to consider.

Id. at 440, quoting Nationwide Mutual Insurance Co. v. Griffin, 222 So.2d 754, 756 (Fla. 4th DCA 1969).

Another type of presumption affects the burden of proof. These implement some social policy of the state. As discussed in Caldwell,

[w]hen evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required by the substantive law of the case.

Id. See also Gulle v. Boggs, 174 So.2d 26 (Fla.1965); Hinson v. Hinson, 356 So.2d 372 (Fla. 4th DCA 1978).

In Reserve Insurance Co. v. Gulf Florida Terminal Co., 386 So.2d 550 (Fla.1980), the Supreme Court of Florida discussed the burden of proof resting on a plaintiff seeking recovery for lost or stolen goods entrusted to a bailee. The court explained:

Under the common law a bailor could establish a prima facie case of negligence by showing that goods were not returned in the same condition as they were delivered; however, the bailor continued to have the burden of proving his case by the preponderance of the evidence.

Id. at 551. In Reserve the court upheld the constitutionality of a statute which does not apply here, but the language used in that opinion supports appellants’ position. Moreover, it comports with Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 110-11, 62 S.Ct. 156, 160-61, 89 L.Ed. 89 (1941), which held the burden of persuasion in a bailment starts and remains upon the bailor.

Guided by the foregoing principles, we reach the following conclusions. First, the burden of proof in the strict sense always remains on the party initially having it. Second, presumptions affecting the burden of proof declare or implement some strong social policy of the state, like the validity of a marriage, or the legitimacy of a child. Third, presumptions affecting the burden of producing evidence facilitate the determination of the issues. These presumptions negate the necessity of proof in the absence of contradictory evidence. The language in Reserve, the holding of Commercial Molasses, compels us to classify the presumption of negligence in a bailment situation within the vanishing presumption category.

Once the presumption has been appropriately classified, it is clear to see the trial court erred. If appellants did, as they claim, introduce evidence contradicting the presumption, the presumption should have vanished from the case. On the other hand, if appellants failed to rebut the inference of negligence, the court should have entered a directed verdict in favor of appellee. Instead, the trial court denied appellee’s motion for a directed verdict and gave the erroneous instruction.

II

The trial court admitted into evidence letters written on behalf of Broward County informing Cavico that it had breached airport security on numerous occasions. Attached to the letters were reports filed by the County Sheriff’s Office documenting instances in which the gates to Cavico’s premises had been found unlocked. Most of the reports circumstantiated security violations that had occurred at night after normal business hours, although a few reports related instances of unlocked gates during the day. The court also admitted an identification badge issued by the county, which was to be worn by employees of the tenants of the airport premises. Testimony was given to the effect that Cavico employees did not wear the badges in May of 1979.

In order to get the reports and correspondence admitted, appellee first read into evidence, without objection, a brief portion of the deposition of Keith Schnable, Cavico’s president. When questioned about Cavico’s responsibilities under its leasing agreement with Broward County, Schnable testified as follows:

It was standing orders in our hours of operation that our gates were always secured and locked. The walk through gates were left open under the control of line service for entrance in and to the flight area. But during normal working hours we adhered to the locking of the gates, and when we left secured for the evening all gates with a positive check. The last line crew member should secure all our responsible gates, which was done.

Appellee then offered into evidence the reports and correspondence which the trial judge admitted over objection stating:

I think it is appropriate at this point to mention that these exhibits are being introduced into evidence for the purpose of impeaching the testimony read to you from the deposition of Mr. Schnable.

The trial court, in its ruling, relied upon Lawrence v. Florida East Coast Railway, 346 So.2d 1012 (Fla.1977). Lawrence involved an action arising out of the death of a motorist who was killed in an automobile-train collision at a railroad crossing. The supreme court held that evidence of similar gate malfunctions at other railroad crossings should not have been excluded under an impeachment rule. Turning to the question of admissibility, the court discussed the evidence’s relevancy.

Although no injuries resulted from the other gate malfunctions, we believe the evidence of their occurrence was relevant for showing notice of a defective system, provided the proper predicate of similarity was established. An ironclad rule of what constitutes similarity would most likely defeat the administration of justice. Therefore, we think determinations of whether a proper predicate of similarity exists should be left to the sound discretion of the trial judge. Some of the guidelines for determining similarity in cases such as this one are the other gate malfunctions closeness in time to the alleged malfunction in the litigated accident, the frequency of the other malfunctions and, of course, the substantial similarity in the type of signal systems at the various crossings. In this case the trial judge acted within proper limits of discretion since his determination that a predicate of similarity existed was founded on the fact that three reported instances of gate malfunctions in signal systems, substantially the same as the system at the King’s Street crossing, had occurred within ninety days of Mr. Lawrence’s accident.

Id. at 1015.

Relying on the guidelines enunciated in Lawrence, we consider the evidence of daytime violations was properly admitted. We also agree that the evidence concerning the failure of Cavico employees to wear their identification badges was relevant to the issue of Cavico’s negligence. Concerning the reports of after-hours violations, we feel the evidence should have been excluded because its probative value did not outweigh the prejudice caused to appellants by its admission. We base our conclusion on the following: the lease agreement entered into by the county and Cavico recited that during business hours the access gates need not be locked; monitoring was sufficient. Because the nighttime security measures differed from those required during the day, we fail to see the relevance of these reports, particularly since Cavico’s president admitted in his deposition knowledge of them. Any relevance that did exist was further diminished by the fact that the only evidence in the record concerning Cameron’s access to the premises showed he did not enter through Cavico’s gates.

Ill

The trial court permitted appellee, over appellants’ objection, to call Christopher Broderick to the stand after appellee had informed the court the witness had indicated he would not testify. Once called, Broderick was asked by appellee if he had stolen the DC-4 aircraft from Cavico’s premises. As expected, he invoked the fifth amendment. Appellee’s counsel then indicated he had no further questions. Appellants contend it was error to call Broderick to the stand for the sole purpose of having him claim his fifth amendment privilege. We agree.

In Faver v. State, 393 So.2d 49 (Fla. 4th DCA 1981), this court held the trial court properly refused defense counsel’s request to call a witness to the stand for the purpose of having the witness invoke his fifth amendment privilege before the jury. In so doing, we quoted from United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir.1973), which held:

Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him.

One of the reasons for this prohibition lies in the recognition

[t]hat a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations.

Bowles v. United States, 439 F.2d 536, 541 (D.C.Cir.1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). Another reason rests upon the conclusion that an inference from a witness’s refusal to testify may add critical weight to a plaintiff’s case in a form not subject to cross-examination. Fletcher v. United States, 332 F.2d 724 (D.C.Cir.1964). In the present case, Broderick’s invocation of his privilege raised the inference that he, along with Cameron, stole the aircraft. Because Cameron’s testimony was critical to appellants’ defense, allowing Broderick to take the stand without providing an adequate opportunity for cross-examination unfairly prejudiced appellants.

Appellee argues the rule recognized in Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), applies to the facts of the present case. In Baxter the Supreme Court wrote:

[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment “does not preclude the inference where the privilege is claimed by a party to a civil cause.”

Id. at 318, 96 S.Ct. at 1557, quoting 8 J. Wigmore Evidence § 439 (McNaughton rev. 1961).

Baxter, however, is clearly distinguishable. In this case, Broderick was not a party to the proceeding; therefore, no probative evidence could have been offered against him. What Baxter recognizes is that a party may not assert the privilege against self-incrimination as both a sword and a shield. City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla. 2d DCA 1978). We fail to see how the language in Baxter and the rationale behind it could extend to a situation in which a witness other than a party is called to the stand for the sole purpose of invoking his right to remain silent before the jury.

Although we disapprove of what occurred at trial, we believe it is worthwhile to call to the parties’ attention that had one been requested, a cautionary instruction regarding improper inferences would have been appropriate. Faver, 393 So.2d at 51. Furthermore, when this case was tried in early October of 1980, appellee’s counsel argued to the jury that he had just learned of Cameron in September. Thus, although our decision presents one problem, it certainly provides counsel with an opportunity to obviate another.

IV

The trial court refused to give a jury instruction on the issue of comparative negligence. Although failure to so instruct may constitute error, Grant v. Red Lobster Inns of America, Inc., 292 So.2d 372 (Fla. 4th DCA 1974), appellee argues the objection was waived by appellants’ failure to file a written request pursuant to Florida Rule of Civil Procedure 1.470(b).

Admittedly, appellants’ attorney did not submit a formal written instruction; but such a gesture would have been useless under the present circumstances. The record reveals the lawyer orally requested an instruction on comparative negligence, which the trial judge refused. Counsel then voiced his objection “[f]or the record.”

It is obvious from the transaction the trial court considered and rejected appellants’ claim. The issue was properly preserved for appellate review by counsel’s oral objection to the trial judge’s proposed instruction. No purpose would have been served by requiring the lawyer to file a written request for an instruction which the judge already stated she would not give. Corbett v. Dade County Board of Public Instruction, 372 So.2d 971, 974-75 n. 3 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1192 (Fla.1980). Because the case must be retried, this issue should be considered.

The record indicates the lower court refused to give the requested instruction because it did not want to confuse the jury on the various standards of negligence and gross negligence. The latter standard applies to a gratuitous bailment arrangement, Martin v. Bell, 368 So.2d 600 (Fla. 1st DCA 1978), which is how appellants characterized their arrangement with appellee. What the trial judge failed to consider is that the ease went to the jury on two counts — bailment and negligence. As the court itself observed, the issue of Cavico’s negligence was whether it had employed adequate security to protect the aircraft from theft. Facing this charge, appellants were entitled to counter it by an instruction and argument to the jury of the facts they contended established negligence on the part of Lauderdale Air Taxi, Inc.

Based on all of the foregoing, we reverse and remand for a new trial.

REVERSED AND REMANDED.

DELL, J., concurs.

BERANEK, J., concurs specially; dissents in part with opinion.

BERANEK, Judge,

concurring specially; dissenting in part:

Basically, a plane titled in a corporation was bailed to a fixed-base operator for the purpose of radio repairs. About one week later, the individual who owned all stock in the corporation was murdered and another week later, the plane was allegedly stolen from where it was parked on the runway adjacent to the fixed-base operator’s place of business. Eventually, the corporate owner made demand for the plane’s return. After the demand was refused, the corporate owner sued the base operator in two counts, alleging in Count I bailment and a refusal to return the bailed article, and Count II negligence in allowing the plane to be stolen. After a jury trial, a general verdict of $80,000 was returned in plaintiff’s favor and judgment was entered from which defendant appeals raising six issues. I would reverse the case because I conclude that a directed verdict in defendants’ favor was appropriate. I believe the evidence was insufficient to take the case to the jury. The real issues were whether Mr. Elder had apparent authority to entrust the plane to Mr. Cameron and whether the bailment of the plane had been terminated. I believe there was no real jury issue on these issues. The only evidence was that Elder was an apparent agent of the corporation and further that the bailment had been terminated by payment of the bill for radio repairs.

I also wish to specifically dissent from the majority view regarding error in allowing plaintiff to call Mr. Broderick who took the Fifth Amendment before the jury. This is a civil case. The defendants presented the testimony of Mr. Cameron who testified that he and Broderick were the pilot and flight engineer of the flight and that they did not steal the plane. The majority concludes that the plaintiff could not present Mr. Broderick’s testimony on rebuttal because it was known he intended to take the Fifth Amendment when asked whether he had been involved in the theft of the aircraft. I submit that if defendants could call Cameron to testify that he and Broder-ick did not steal the plane that plaintiff should have been allowed to place Broderick on the stand and to take advantage of the inference which occurred when Broderick refused to answer questions based on the ground that it would incriminate him. This is in accordance with my previous dissent in Faver v. State, 398 So.2d 49 (Fla. 4th DCA 1981). Once again, I conclude that there is no Fifth Amendment policy to be served by prohibiting a party from asking a witness appropriate questions under these circumstances. The witness has a privilege, under the Fifth Amendment, to refuse to answer such questions, but it should be a mere privilege not to answer rather than a prohibition against asking the question. As in Faver, I would adopt the views expressed by Judges Bazelon and Wright in their dissenting opinions found in Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536 (D.C.Cir.1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). I thus conclude the judgment should be reversed and a directed verdict entered for defendant.

      . The action was brought by the Estate of Frank Guzman, deceased, by its Personal Representative, Linda Guzman; Linda Guzman, individually; and Lauderdale Air Taxi, Inc. The trial court directed a verdict against all but the last named appellee on the ground that the corporation held record title to the aircraft in question.

      . Garske incorporated Lauderdale Air Taxi in 1978, turned it over to Frank Guzman in January of 1979, and apparently had done some work for the corporation thereafter. The day following Guzman’s death, Garske and Guzman’s attorney made sure that Lauderdale Air Taxi’s office and hangar were locked.

      . She was appointed personal representative of the estate on May 18, 1979.

      . The judge, in tracking the language used in Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977), gave the following instruction:
      Given delivery of the bailed chattel and a failure to return it in accordance with the terms of the bailment agreement, a presumption of negligence on the part of the bailee arises unless he satisfactorily explain [sic] such failure or loss — pardon me, such loss, damage or disappearance of the chattel. The law imposes on the bailee the burden of showing that he exercised the degree of care required by the nature of the bailment.

      . The Florida Evidence Code does not apply to this case.

      . The similarity between the new Florida Evidence Code sections and the conclusion in Caldwell is readily apparent.
      Section 90.302, Florida Statutes (1979), provides:
      Every rebuttable presumption is either:
      (1) A presumption affecting the burden of producing evidence and requiring the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption; or
      (2) A presumption affecting the burden of proof that imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.
      Section 90.303, Florida Statutes (1979), provides:
      In a civil action or proceeding, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence.
      Section 90.304, Florida Statutes (1979), provides:
      In civil actions, all rebuttable presumptions which are not defined in s. 90.303 are presumptions affecting the burden of proof.

      . McMichael v. McMichael, 158 Fla. 413, 28 So.2d 692 (1947).

      . Sacks v. Sacks, 267 So.2d 73 (Fla.1972).

      . Contra, Gard, Florida Evidence § 3:14 (2nd ed. 1980).

      .The trial court expressed concern that in the absence of the sheriffs reports and correspondence between the county and Cavico, the jury, hearing only Schnable’s deposition, would conclude the gates were always locked, which they were not.

      . Although appellants did not request appellee at the October 10th bench conference to read any other part of Schnable’s deposition pursuant to Florida Rule of Civil Procedure 1.330(a)(4), they did point out at a similar conference on October 8th that Schnable acknowledged receipt of the correspondence from the county “about every third day.”

      . The authorities upon which appellee relies also involved parties. For example, in Fross v. Wotton, 3 Cal.2d 384, 44 P.2d 350 (1935), an inference of fraud was permissible from defendants’ refusal to testify in an action to set aside conveyances allegedly defrauding creditors. In Shepherd v. Superior Court of Alameda County, 17 Cal.3d 107, 550 P.2d 161, 130 Cal.Rptr. 257 (1976), the “witnesses” were three defendant police officers. Our research reveals that in a number of cases, although the courts use the term “witness,” it is the party who is the witness. Molloy v. Molloy, 46 Wis.2d 682, 176 N.W.2d 292 (1970); Ikeda v. Curtis, 43 Wash.2d 449, 261 P.2d 684 (1953).

      . Appellants claimed appellee was negligent in failing to reclaim the aircraft after the repairs were made. Aside from the failure to retrieve the DC-4, appellants also argued Elder and Sandini were vested with the apparent authority to transact business for appellee concerning the sale of the aircraft.

      . Florida Rule of Civil Procedure 1.470(b) provides that “[n]ot later than at the close of the evidence, the parties shall file written requests that the court charge the jury on the law set forth in such requests.”

      . The following dialogue occurred:
      THE COURT: Have we got comparative negligence?
      ANSWER: I think so. I think the action of the corporation and its employees from this agent after Mr. Guzman’s death when they knew that the aircraft was there, they continued to leave it there and I think that is sufficient to have the jury apportion some negligence in this case.
      THE COURT: Well, but we can’t have it both ways. If they determine that the gratuitous bailment requires gross negligence, then that would dispel the theory of comparative negligence. I mean, it is either negligence or gross negligence. I don’t think you can have both philosophies. They seem to me to be a little contradictory.
      You are nodding yes, but you are not saying anything to get it on the record.
      ANSWER: I don’t want to get it on the record.
      THE COURT: All right. Then let’s do away with that. I think it will confuse things if we’ve got it already covered with negligence or gross negligence.
      ANSWER: For the record I’ll object because I think that the testimony is sufficient for the jury to apportion the negligence between the plaintiff and the defendant.


source: Caselaw Access Project

author: HURLEY, Judge.

license: Public Domain

text:
    Herschel McKINZIE, Jr., a minor By and Through his parents and next friends, Herschel McKINZIE, Sr., and Marilyn McKinzie and Herschel McKinzie, Sr., and Marilyn McKinzie, Individually, Appellants, v. HOLLYWOOD, INC., Appellee.
    No. 81-896.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Rehearing Denied Dec. 1, 1982.

      Stephen G. Fischer of Fox & Fischer, Miami, for appellants.
    Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellee.
   HURLEY, Judge.

The plaintiffs, now appellants, assert that the trial court erred in vacating a default and in entering a judgment on the pleadings in favor of the defendant. We affirm the order setting aside the default, but we reverse the judgment on the pleadings because the complaint set forth a viable legal theory by alleging that the defendant landowner negligently failed to take reasonable steps to prevent persons on its property from injuring people traveling on an adjoining street.

This suit was instituted against the landowner by a minor child and his parents. They alleged that the child, while a passenger in a car traveling on a street abutting the defendant’s property, was hit on the head and severely injured by a rock thrown from the defendant’s property. They also alleged that the defendant created or permitted a dangerous tree fort, stockpiled with rocks, to remain on the defendant’s property. Further, plaintiffs alleged that the defendant knew or should have known of numerous prior incidents of rock throwing at cars from the fort and that the defendant knew or should have known that the fort constituted a dangerous nuisance to persons passing by the property on the adjoining street. Finally, plaintiffs asserted that the defendant failed to take reasonable steps to protect the persons passing by from suffering injuries at the hands of the rock throwers.

The defendant failed to answer and a default was entered. Later, the trial court vacated the default and entered a judgment on the pleadings in favor of the defendant.

The first issue we must decide is whether the trial court abused its discretion in setting aside the default. Florida has a long standing policy of liberality towards the vacating of defaults. North Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962). Because of this policy, a greater showing is required to reverse an order granting a motion to vacate a default than is required to reverse a denial of such a motion. B.C. Builders Supply Co. v. Maldonado, 405 So.2d 1345, 1347 (Fla. 3d DCA 1981). In the present case, we believe that the appellants have failed to demonstrate a gross abuse of discretion by the trial court. See North Shore Hospital, Inc. v. Barber, supra; Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977). Therefore, we affirm the order setting aside the default.

With regard to the propriety of the judgment on the pleadings, we begin with the well-established rules governing motions for judgments on the pleadings. We have previously summarized these rules as follows:

Under Rule 1.140(c), Fla.R.Civ.P., all material allegations of the opposing party’s pleading are to be taken as true, and all those of the movant which have been denied are taken as false.... Since an answer requires no responsive pleading, all allegations contained therein are deemed denied.... Such a motion is to be decided wholly on the pleadings without the aid of outside matters.... Judgment on the pleadings may be granted only if, on admitted facts, the moving party is clearly entitled to judgment as a matter of law.... It is improper for a trial court to enter judgment on the pleadings where a factual question is involved.

Krieger v. Ocean Properties, Ltd., 387 So.2d 1012, 1013-14 (Fla. 4th DCA 1980) (citations omitted).

Next, we must consider the substantive law governing the plaintiffs’ claim. That law was set forth in Davis v. Johnson, 288 So.2d 554 (Fla. 2d DCA 1974). The court said that,

A land owner can be held liable for injuries inflicted by trespassers upon persons outside his premises if he had reason to anticipate that the trespasser would engage in the conduct which caused the injury and thereafter had a reasonable opportunity to prevent or control such conduct.

288 So.2d at 555.

The complaint in the present case alleges the elements set forth in Davis. Therefore, it was improper for the trial court to enter judgment on the pleadings.

The appellee has asserted that the rock throwing was an unforeseeable intervening cause that should relieve the landowner of liability. That argument, however, misses the mark. If the landowner was negligent at all, it is because it failed to take reasonable steps to prevent the rock throwing. See, e.g., Holley v. Mt. Zion Apartments, Inc., 382 So.2d 98, 101 (Fla. 3d DCA 1980).

The appellee has also attempted to draw an analogy between the liability of landowners to persons outside their land and the liability of landowners to trespassers. The analogy fails, however, because different considerations apply. As our Supreme Court has said, the basic reason for special rules governing the liability of landowners to trespassers is “that a property owner is entitled to some privacy upon his own premises and should not be bound to those who choose to avail themselves of it at will.” Wood v. Camp, 284 So.2d 691, 696 (Fla.1973). This policy consideration does not apply when the injured party was outside the landowner’s property.

Finally, we wish to emphasize that we are not expressing any opinion about whether the plaintiffs will ultimately succeed in their attempt to prove negligence by the landowner. It may well be that the landowner had no reason to anticipate the rock throwing incident or that there were no reasonable steps by which it could prevent the incident. At this juncture, however, we are required to reverse because the allegations of the complaint set forth a viable legal theory.

Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

ANSTEAD and HERSEY, JJ., concur.

      . Dean Prosser has summarized the law in this area as follows:
      There have been surprisingly few cases dealing with the liability for the conduct of trespassers and others acting without the possessor’s knowledge or consent. It seems clear, however, that he is not liable for such conduct, or conditions resulting from it, until he knows or should know of the danger, but that once he has had a reasonable opportunity to discover the situation he is under a duty to exercise proper care to prevent harm to others.
      Prosser, Law of Torts, § 57 at 356-57 (4th ed. 1971 West) (footnotes omitted).


author: DELL, Judge.

text:
    TRUM CORP., a Florida corporation, Appellant, v. Calvin A. SATTERFIELD, III, etc., and Poinciana Properties, Ltd., etc., Appellees.
    No. 81-1164.
    District Court of Appeal of Florida, Fourth District.
    Oct. 13, 1982.
    Rehearing Denied Dec. 6, 1982.

      Leigh E. Dunston and Paul A. Turk, Jr., of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appellant.
    John K. Aurell of Holland & Knight, Tallahassee, for appellees.
   DELL, Judge.

Trum Corp., plaintiff below, appeals a final judgment finding its commission contracts with appellee partnership invalid pursuant to Section 475.41, Florida Statutes (1977).

George Trum (Trum) as president and sole stockholder of Trum Corp. (the corporation), and Gene McCaffery, his employee, entered into an oral agreement with Poinciana Properties, Ltd. (Poinciana) whereby the corporation would manage Royal Poinciana Plaza (the Plaza) on behalf of its owner, Poinciana. The corporation’s primary obligation under this agreement was to lease space in the Plaza.

Poinciana decided to sell the Plaza. Trum and Comyns, then general partner of Poinciana, decided that the corporation should handle the sale of the Plaza. Trum hired Canning, an active registered real estate broker, appointed Canning vice president of the corporation, and qualified the corporation as an active real estate broker corporation with the Florida Real Estate Commission. Trum registered as a non-active broker. McCaffery did not register in any capacity. After registration, the corporation and Poinciana executed the two written contracts contested herein.

The first contract is a management agreement, negotiated by Trum and McCaf-fery, and executed by McCaffery on behalf of the corporation. In essence, this agreement obligates the corporation to conduct leasing activities. Trum, Canning and McCaffery all performed the leasing activities on behalf of the corporation.

The second contract is a listing agreement, purporting to be an exclusive right of sale contract. Trum negotiated and executed the contract on behalf of the corporation in his capacity as president. Although the trial court found that Trum, McCaffery, and Canning all performed services under this contract, the record reflects that only Canning performed acts specifically directed to procuring a purchaser for the Plaza. Testimony shows that Trum ran the corporation, but the record shows no evidence of acts by Trum or McCaffery calculated to procure a purchaser for the Plaza.

After a non-jury trial the trial judge found the corporation’s claims under both the listing agreement and the management contract unenforceable pursuant to Section 475.41, Florida Statutes (1977).

Appellant simply asks whether the trial court erred in holding that Section 475.41 renders these contracts invalid. However, the question presented requires us to consider the two contracts in isolation and to decide whether a real estate contract executed by a non-active real estate broker on behalf of a registered real estate broker corporation may be enforced if a registered broker performs all of the acts or services contemplated by the contract, and alternatively, can such a contract be enforced if non-registered persons perform some or all of the acts or services contemplated by the contract.

The courts of Florida have considered variations of the first question presented by this case, but the facts sub judice require us to attempt to reconcile the language of Section 475.41 with the decisions of our sister courts.

In order to better understand the legislative intent of Section 475.41, we have highlighted the operative words:

No contract tor a commission or compensation for any act or service enumerated in subsection (2) of s. 475.01 shall be valid unless the broker or salesman shall have complied with this chapter in regard to registration and renewal of the certificate at the time the act or service was performed. (Emphasis added).

§ 475.41, Fla.Stat. (1977).

Each of the contracts required performance of acts and services enumerated in Section 475.01(2). Since Section 475.01(2) mentions the agreement to do any of the seven “real estate acts,” appellees argue that execution of the contracts by Trum, a non-active broker, rendered them invalid. In support of this argument, appellees cite Pearce v. Previews, Inc., 201 F.2d 385 (5th Cir.1953), cert. denied, 345 U.S. 993, 73 S.Ct. 1132 (1953), and Meadows of Beautiful Bronson, Inc. v. E.G.L. Investment Corp., 353 So.2d 199 (Fla.3d DCA 1977), cert. denied, 360 So.2d 1248 (Fla.1978). We have carefully reviewed the Meadows opinion and cannot agree with appellees’ interpretation. The Court in Meadows held the contract unenforceable because,

[T]he agreement required by its terms the rendition of real estate services in Florida by appellees with others who were neither licensed nor registered real estate brokers or salesmen in Florida. Such a contract is as a matter of public policy, void and unenforceable.... Furthermore, appellees have not alleged that they, all other members of FISCO, and FISCO itself, were licensed and registered brokers at the time of the rendition of the services under the agreement. (Emphasis added).

Id. at 200.

Appellees further suggest that Pearce v. Previews, Inc., supra, stands for the proposition that if the listing agreement in Pearce had been executed in Florida by a non-active corporate officer it would have been invalid under Section 475.41. We do not construe geography as the determinative distinction. The Pearce Court did not base its decision on the execution of the contract. Rather, it held that

Properly construed, this statute did not require appellee’s president and the other nonresident officers to hold active real estate broker’s licenses from the State of Florida, since they did not do or perform any acts or services relating to the property “in this state”. The signing of the contract was in New York and not in Florida. Appellee, as a corporate entity, was qualified to do business in Florida and was registered as an active broker, as was its Florida Vice-President, who, so far as appears, performed all necessary acts and services in Florida in connection with this contract. (Emphasis added).

Id. at 386.

The theme of these eases and others cited in the parties’ briefs and the plain language of the statutes seems clear. Chapter 475 prohibits the performance of broker’s acts by unregistered persons, and provides various civil and criminal penalties for violation thereof. Section 475.41 works a forfeiture when an unregistered person performs the services for which the client has contracted. The fact that a non-active or unlicensed person executes a real estate contract on behalf of a registered real estate broker corporation will not work a forfeiture so long as all of the persons performing the services of the contract are registered at the time the act or services are performed.

Accordingly, we hold the management agreement herein unenforceable because McCaffery, an unlicensed person, performed the services contemplated by this contract. The listing contract, however, may be enforced. Trum, a non-active broker, executed the listing contract on behalf of the active broker corporation and actively managed the corporation. His acts may have been in violation of Chapter 475. However, appellee has failed to direct us to any part of the record demonstrating that someone other than Canning, a registered active broker, did acts on behalf of the active broker corporation which were calculated to result in the procurement of a purchaser. That is, only Canning performed the listing contract.

A final controversy remains, that is whether the listing agreement is an exclusive agency or an exclusive right of sale. Both parties assert that the listing agreement is clear and unambiguous on its face, and that we can determine appellant’s entitlement to a commission as a matter of law. We disagree. The listing agreement contains language of both exclusive agency and exclusive right of sale. The trial court did not rule on this issue. Accordingly, we reverse and remand for further consideration of the issue of liability and damages under the listing agreement.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

DOWNEY and HURLEY, JJ., concur.

      . Chapter 475 was amended effective July 1, 1979, after the execution of these contracts.


author: PER CURIAM.

text:
    James Richard RENNIS, Appellant, v. STATE of Florida, Appellee.
    No. AI-248.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.
    Rehearing Denied Nov. 19, 1982.

      William J. Sheppard, Daniel A. Smith of Sheppard & Carithers, P.A., Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appel-lee.
   PER CURIAM.

Appellant raises three issues following an adjudication of guilt and imposition of sentence upon his plea of nolo contendere. We affirm.

Only one of the issues raised requires discussion. On May 8, 1981, the Florida Supreme Court upheld the constitutionality of Section 893.135, Florida Statutes (1979). State v. Yu, 400 So.2d 762 (Fla.1981). On May 21, 1981, appellant filed a second motion to dismiss in which the identical constitutional challenge raised and rejected in State v. Yu, was advanced. However, the trial court was not advised of the Supreme Court’s decision. On June 12, 1981, a hearing was held on the motion to dismiss. The parties neither argued nor informed the court of the applicability of State v. Yu. On June 12, 1981, the trial court declared Section 893.135 to be unconstitutional. Appellant’s counsel was instructed to prepare an order which was signed by the trial court on June 12, 1981. This order did not cite State v. Yu. The order was filed in the trial court on June 25, 1981. On June 29, 1981, the State filed a Motion to Reconsider based on State v. Yu. A copy of that opinion was attached to the motion. On July 2, 1981, a hearing on the motion to reconsider was held. Counsel for both parties agreed that neither was previously aware of the Florida Supreme Court’s opinion in State v. Yu. The trial court reconsidered its previous order and denied appellant’s motion to dismiss.

While a motion for rehearing is not specifically authorized by the Florida Rules of Criminal Procedure, the trial court did not err in granting the motion in this case.

AFFIRMED.

LARRY G. SMITH, SHAW and JOA-NOS, JJ., concur.


author: SHAW, Judge.

text:
    EDITORIAL AMERICA S.A. and Travelers Insurance Company, Appellants, v. Alexander KENT (Deceased) and Olga Kent, Appellees.
    No. AJ-257.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1982.
    Rehearing Denied Nov. 29, 1982.

      Gladson & Sullivan, Miami, for appellants.
    Williams & Zientz, Coral Gables, for ap-pellees.
   SHAW, Judge.

The employer/carrier (E/C) appeal a workers’ compensation order, contending, inter alia, that the deputy commissioner erred in finding that decedent engaged in unusual exertion prior to suffering a myocardial infarction and in relying on the expert testimony of Dr. Sanet. We agree and reverse.

The E/C is a Miami distributor of magazines and periodicals to Latin American countries. Decedent was a seventy-four year old accountant in the employer’s circulation department, whose duties included controlling the return of unsold magazines distributed throughout Latin America. In May, 1980, decedent traveled to Guatemala to account for and confirm the destruction of unsold copies distributed through Dela Riva Brothers, the employer’s Guatemalan distributor. Two employees of Dela Riva Brothers deposed that, on the morning of decedent’s death, they bundled and positioned stacks of unsold magazines for decedent to conduct his count and record his tally, and that the magazines were to be taken away for destruction by employees of Dela Riva. These two employees testified that decedent had been sitting at a table for five or ten minutes reconciling his figures when he suffered the fatal attack. The subscription manager of Dela Riva deposed that she had observed the decedent earlier in the day and on previous days supervising and controlling the work and moving packages to the side after completing his count. She also testified that she was not present when the decedent suffered the fatal attack and was told of the circumstances by the two employees assisting decedent. All three employees testified that decedent had been in Guatemala earlier in 1980 on a similar mission. An autopsy performed on decedent revealed that he had suffered a previous heart attack.

In his order the deputy found that decedent’s job duties during his ten years of employment involved no physical activity and were totally sedentary in nature. The deputy also relied on the testimony of Dr. Sanet who examined the autopsy report and the deposition of the Dela Riva subscription manager. Based on the assumption that decedent was an accountant performing only sedentary work in the Miami office who was sent to Guatemala to count, stack, and destroy magazines, Dr. Sanet opined that decedent’s physical activities were unusual and that the overexertion killed him. Dr. Wetli, who performed the autopsy and reviewed the depositions of the three Dela Riva employees and the decedent’s written job description, opined that decedent’s death was related to the preexisting heart disease and not the work activities. Based on the same evidence, Dr. Lerner opined that decedent died of the preexisting heart disease and not the work activities.

We are aware that an appellate court will not ordinarily reevaluate the weight or relative credibility of witnesses; that a deputy has discretion to accept the testimony of one doctor over others; and that the deputy’s findings of facts should be affirmed if supported by competent substantial evidence. In this instance, however, the deputy’s finding that decedent’s activities on the day of his death were unusual and non-routine to his regular employment is unsupported by competent substantial evidence. Indeed, this finding is contrary to the deposition testimony of the Déla Riva Brothers employees that the decedent had travelled to Guatemala earlier in 1980 for the same purpose, and of the deposition of decedent’s widow that she had accompanied decedent on Latin American business trips in previous years when his duties included similar activities. Further, the deputy’s finding is also contrary to the written description of decedent’s job duties submitted by appellant employer. We note in passing that the evidence concerning decedent’s work activities on the day of his death was received by deposition and that the deputy had no opportunity to personally observe the witnesses. Thus, his vantage point is not superior to that of this Court. See Kelly v. Florida Atlantic University, 413 So.2d 833 (Fla. 1st DCA 1982).

The deputy’s reliance on the expert testimony of Dr. Sanet is also misplaced. Like the deputy’s findings, Dr. Sanet’s opinion was based on the unsupported assumption that decedent’s job duties involved no physical activities and were totally sedentary. By contrast, the expert opinions of Doctors Wetli and Lerner, that decedent’s work activities were not unusual and were not a causal factor in the myocardial infarction, which the deputy rejected, were based on relevant record evidence. As this Court held in Gold Coast Paving Co., Inc. v. Fonseca, 411 So.2d 259, 261 (Fla. 1st DCA 1982), “[wjhile a Deputy Commissioner has discretion to accept the testimony of one physician over that of another, ‘[tjhis discretion must ... be solidly rooted in a firm foundation of fact to support the opinion of the expert upon whom the Deputy chooses to rely.’ Geiger Distributors, Inc. v. Snow, 186 So.2d 507, 509 (Fla.1966).”

In Victor Wine & Liquor Inc. v. Beasley, 141 So.2d 581 (Fla.1962), reh. granted, the court established the rule that when disabling heart attacks are precipitated by work-connected exertions affecting a preexisting non-disabling heart disease, such injuries are compensable only if the employee was subjected to non-routine, unusual strain or overexertion. The deputy’s order finding that decedent on 15 May 1980 was engaged in non-routine, unusual exertions is not supported by competent substantial evidence.

We REVERSE.

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


text:
    Ricky Lynn STEELE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1040.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Rehearing Denied Dec. 6, 1982.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Swan v. State, 322 So.2d 485, 487 (Fla.1975); Mack v. State, 346 So.2d 1229 (Fla. 3d DCA 1977).


text:
    COUNTRY CLUB OF MIAMI CORPORATION, Appellant, v. COUNTRY CLUB OF MIAMI FAIRWAY VILLAS S3/B1 ASSOCIATION, INC., Appellee.
    No. 81-1657.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Rehearing Denied Dec. 6, 1982.
    Bailey & Dawes and William Berger and Jesse C. Jones, Miami, for appellant.
    Schwartz, Klein & Steinhardt, Miami, James V. Johnstone, North Miami, Hal P. Dekle, Tulsa, Okl., for appellee.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367 (Fla. 4th DCA 1981); Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Balart v. Michels Kartway, Inc., 364 So.2d 90 (Fla. 3d DCA 1978).


author: BASKIN, Judge.

text:
    Earl McGOWAN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-449.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Rehearing Denied Dec. 3, 1982.
    Bennett H. Brummer, Public Defender, William A. Meadows, Jr., and Mark Hektner, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Scott Silver, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

Defendant McGowan has failed to preserve for review any error resulting from the trial court’s refusal to- instruct the jury on lesser included offenses pertaining to premeditated or felony murder. Shrum v. State, 401 So.2d 941 (Fla. 5th DCA 1981); Skipper v. State, 400 So.2d 797 (Fla. 1st DCA 1981); Worley v. State, 396 So.2d 1153 (Fla. 2d DCA 1981); Williams v. State, 346 So.2d 554 (Fla. 3d DCA), cert. denied, 353 So.2d 681 (Fla.1977).

Affirmed.

      The record reveals that defense counsel indicated his satisfaction with the instructions to be given by the court.
      THE COURT: So first, we get the lesser crimes. All right. ‘Introduction to homicide,’ second sentence, second paragraph, ‘Murder in the first-degree includes the lesser crime of manslaughter.’ ‘The lesser crime of manslaughter.’
      [ASSISTANT STATE ATTORNEY]: Okay. Right.
      THE COURT: ‘Which is unlawful.’
      [ASSISTANT STATE ATTORNEY]: Right, and then going down—
      THE COURT: Then, we get down to ‘killing was first-degree or manslaughter.’
      We strike murder in the second or first degree, whatever we have changed.
      All right. I am satisfied with that under the circumstances.
      Now, let’s see—
      [ASSISTANT STATE ATTORNEY]: Are you satisfied with that Mr. Meadows?
      [DEFENSE COUNSEL]: Yes, sir.


author: ERVIN, Judge.

text:
    SANS SOUCI, a Florida general partnership, Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, DEPARTMENT OF BUSINESS REGULATION, State of Florida, appellee; La Plaza Condominium Association, Inc., a Florida corporation not for profit, on behalf of itself and all other condominium unit owners at Sans Souci, a condominium, Fort Pickens Road, Pensacola Beach, Florida, similarly situated, Appellees.
    No. AG-137.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.

      Charles L. Hoffman, Jr., of Shell, Fleming, Davis & Menge, P.A., Pensacola, for appellant.
    Helen C. Ellis, Staff Atty., Div. of Florida Land Sales and Condominiums, Tallahassee, for appellees.
   ERVIN, Judge.

Appellant Sans Souci seeks review of final agency action by the Division of Florida Land Sales and Condominiums (“Division”) in the form of a declaratory statement determining the rights of various condominium unit owners. Specifically, the Division determined that Sans Souci, the holder of a condominium land lease, did not have the right to exercise a rent escalation clause, thereby raising the unit owners’ rent. On appeal, Sans Souci contends that the Division did not have the authority to enter such an order, in that the Division’s order effectively violates the constitutional prohibition against the impairment of contractual obligations. We affirm the authority of the Division to enter the underlying order, but because we find the record inadequate to permit review of the constitutional issue, we remand jurisdiction to the Division for further proceedings, including development of a record permitting review of such issue on either of two alternative grounds.

In 1970, Vista Deluna Condominiums leased property from the Santa Rosa Island Authority, a political entity. Some time later, Gulf Florida Development Corp. received an assignment of Vista Deluna’s interest. Gulf Florida then moved forward with the development of the Sans Souci condominiums project. Although the date is uncertain, Gulf Florida filed its declaration of condominium and, as exhibit H to the declaration, a master copy of a sublease.

The master sublease was the model copy of subleases to be executed between Gulf Florida and each purchaser of a condominium unit at Sans Souci. The literal wording of the lease reflects that Gulf Florida, the sublessor, agreed to lease a condominium unit and an indoor parking space to the unit purchaser. This sublease contained a rent escalation clause, permitting a periodic escalation of the rent based on the U.S. Department of Labor Consumer Price Index. The sublease provided for a term ending in the year 2069. A number of the units had been subleased by Gulf Florida, when on June 2,1977, Gulf Florida assigned its interest in the subleases to Sans Souci, a partnership. In late 1980, Sans Souci determined to exercise its contractual right to raise the rent on its subleases.

The condominium unit owners, through their condominium association, sought a Section 120.565, Florida Statutes (1979), declaratory statement from the Division in order to preclude Sans Souci from raising the rent by exercising the escalation clause in the sublease. The Division granted Sans Souci’s motion to intervene. On the merits the Division determined that Section 718.-401(8), Florida Statutes (Supp.1976), bars the use of escalation clauses in condominium land leases; that this section was applicable to the facts of this case; that this section went into effect on January 1, 1977, well before the June 2, 1977 date on which Sans Souci was assigned its interest in the lease as sublessor; that by virtue of the assignment, Sans Souci took subject to all Florida laws then existing, including Section 718.401(8), and that there could be no unconstitutional impairment of Sans Souci’s contractual obligation, since Section 718.-401(8) was in effect prior to the assignment of any interest in the lease to Sans Souci.

As to the jurisdictional problem, appellant asserts that a Section 120.565 declaratory statement is an improper vehicle to use in this case, because the appellant’s constitutional rights are at stake, to wit: the application of Section 718.401(8) unconstitutionally impairs the appellant’s contractual rights and appellee’s obligations under the escalation clause. It is appellant’s view that an administrative body has no authority to determine one’s constitutional rights under a Florida law in instances whereby application of the law will prove to be unconstitutional.

We disagree. It is well established that the mere assertion “of a constitutional issue should not excuse a failure to exhaust administrative remedies.” Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978). We find nothing in the record to suggest that this court will not be able ultimately to accord the appellant a determination of its constitutional rights. Cf. Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66 (Fla. 1st DCA 1981), rev. docketed, no. 61,027 (Fla. orally argued April 14, 1982); Rice v. Department of Health & Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980). Certainly, the appellant has not yet been able to make a convincing showing that the Administrative Procedure Act’s “impressive arsenal of varied and abundant remedies” is inadequate to achieve that aim. State ex rel. Department of General Services v. Willis, 344 So.2d 580, 590 (Fla. 1st DCA 1977). The appellant has shown no reason for, nor even sought, circuit court intervention seeking a declaration of the Division’s lack of jurisdiction to rule on this matter, or of the facial invalidity of Section 718.401(8).

In essence, the Division has merely determined the applicability and interpretation to be placed upon Section 718.401(8), Florida Statutes (Supp.1976). This is a task for which the Division, given its regulatory responsibility over condominiums, has special expertise. Agency determinations with regard to a statute’s interpretation and applicability will normally be accorded great deference, unless there is clear error or conflict with the intent of a statute. See State, Department of Health & Rehabilitative Services v. Hall, 409 So.2d 193, 195 (Fla. 3d DCA 1982); Harris Corp. v. Department of Revenue, 409 So.2d 91, 93 (Fla. 1st DCA 1982) (Ervin, J., specially concurring); ABC Liquors v. Department of Business Regulation, 397 So.2d 696, 697 (Fla. 1st DCA 1981). “In such a case, the constitutional question is not independent of the agency’s actions on the merits, but is inseparable from it, and the constitutional question is necessarily phrased, ingeniously or ingenuously, as a variation of the affected party’s original position on the nonconstitu-tional question.” Key Haven Associated, at 71.

The agency has acted properly under Section 120.565, Florida Statutes (1979), since that statute manifests the legislature’s intent that, when invoked, agency declaratory statements “shall state the agency’s opinion of how a specified statute applies to a particular individual in his particular circumstances.” State of Florida, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA, 1982) (Robert Smith, C.J., dissenting). Further, Section 120.565, when read together and harmonized with Section 718.401, Florida Statutes (1981), providing that condominiums may be created on lands held under lease for no less than 50 years, evinces the logical deduction that the legislature wisely perceived that problems of precisely the type involved in the case at bar would arise. In order to ensure that condominium leases comply with the provisions of Chapter 718, Florida Statutes, Section 718.501(1) affords the Division the power to (1) determine whether any person has violated Chapter 718; (2) interpret the chapter, and (3) issue annually to condominium associations a summary of its declaratory statements.

By rule, as required by Section 120.565, the Division, as a sub-agency of the Department of Business Regulation, has the power to issue declaratory statements to any party “who is affected or substantially affected by any Division’s statutory provisions .... ” Fla.Admin.Code Rule 7-8.01. The condominium unit owners sought a declaratory statement as to the applicability of Section 718.401(8) to their sublease escalation clauses, and we find that the Division properly issued a Section 120.565 declaratory statement. As such, the declaratory statement constitutes final agency action that is properly before this court for direct review, and this court may confront “the inseparable” constitutional issue. Key Haven Associated at 71.

Turning to the Division’s conclusions of law, we observe they state that the challenged escalation clauses relate to ground or land leases. The appellant contends that the leases do not fall within the regulatory perimeters of Section 718.401(8), because the master sublease refers to a condominium unit, not land. We reject this argument. The master sublease by its own terms subleases to the purchaser of a condominium unit his or her own unit. We are unable to understand how or why someone would purchase a unit from a developer and at the same time agree to lease the same unit from the developer until the year 2069.

This ambiguity is one that may be unraveled by the agency as a matter of law, since the parties’ intent can be ascertained from the terms of the written master sublease. Cf. State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981); Key Haven Associated, at 71; Peacock Construction Co. v. Modern Air Conditioning, Inc., 353 So.2d 840, 842 (Fla.1977), see also 11 Fla.Jur.2d Contracts § 102 (1979). Because the master sublease was drafted by the appellant’s predecessor in interest, Gulf Florida, the ambiguity should be construed most strongly against the appellant. Rubin v. Beville, 132 So.2d 783, 785 (Fla. 1st DCA 1961); 11 Fla.Jur.2d Contracts, § 106 nn. 78-80 (1979). Our consideration of both the facts in the foregoing paragraph surrounding execution of the individual subleases, and the literal wording of the subleases indicates that they involve subleases of land. First, the subleases call for the lease of a condominium unit and a parking space. As a practical matter, it seems certain that at least some of those units and parking spaces would be placed on land.

Second, the subleases, as characterized by the master sublease, are precisely what the title expressly states. They are subleases. Axiomatically, for there to be a sublease there must also be a lease. The lease in this case is between the Santa Rosa Island Authority and, by assignment, Sans Souci. It is a lease for land, and the lease and its terms are specifically incorporated into the subleases. Not coincidental is the fact that the lease and the subleases all terminate in December, 2069. Clearly, the parties at bar could not have intended to have entered into a sublease of condominium units, since the Santa Rosa/Sans Souci lease was one for land.

Having determined that the subleases were land subleases, we next confront appellant’s contention that application of Section 718.401(8) unconstitutionally impairs the contractual obligations embodied in the subleases. The conclusions of law by the Division include a determination that Section 718.401(8), effective as of January 1, 1977, was applicable, because appellant Sans Souci had no rights in the subleases until June 2, 1977. However, for purposes of considering whether there has been an unconstitutional impairment of a contractual obligation by statutes regulating condominiums, such as Section 718.401(8), Florida Statutes (Supp.1976), there must be determined the date of filing of the superior declaration of condominium and its subordinate documents, such as the master sublease, since such date controls for purposes of fixing the parties’ rights and obligations. Tradewinds of Pompano Association, Inc. v. Rosenthal, 407 So.2d 976, 977 (Fla. 4th DCA 1981); accord, Hovnanian Florida, Inc. v. Division of Florida Land Sales, 401 So.2d 851 (Fla. 1st DCA 1981), rev. denied, 415 So.2d 1360 (Fla.1982). Thus, the law on the date of filing of the foregoing documents engrafts the law of Florida into the documents, as if it were expressly stated in the documents. Cf. National Merchandise v. United Service Automobile Association, 400 So.2d 526, 531 (Fla. 1st DCA 1981).

It is unclear as to precisely what date the declaration of condominium and its attached exhibit, the master sublease, were filed, since the declaration was not made a part of the record on appeal, nor is a recorded copy of the master sublease included in the record. The record indicates that many of the subleases between Gulf Florida and the individual unit owners were consummated during 1974 and 1975. It is therefore obviously reasonable to conclude that the master sublease was recorded sometime prior to those dates. The Division, by reaching its legal conclusion, has ignored the date of filing of the condominium declaration and master sublease. Instead, the Division relies on June 2, 1977, the date Gulf Florida assigned its rights to Sans Souci, as fixing Sans Souci’s rights and obligations.

Because the record before us is insufficient to sustain the Division’s finding that the law in effect at the time of the execution of the lease between Gulf Florida and Sans Souci controlled the question of whether Sans Souci was permitted to escalate the rents, that finding must be reversed and the cause remanded for the purpose of conducting further proceedings directed to the following two alternative issues: First, did the superior declaration of condominium or its master sublease, incorporate the “automatic amendment theory”, permitting the declarations to be amended from time to time, by later amendments of the Condominium Act? If so, there would be both a legal and evidentiary basis for the Division’s finding, now necessary for the Division to consider. If not, the Division would next be required to determine whether the lease assignment between Sans Souci and Gulf Florida was a novation.

I.

In order for the Division to address the first alternative issue, the record will require supplementation by the addition of a recorded copy of the declaration of condominium. See Suntide Condominium Association, Inc. v. Division of Florida Land Sales & Condominiums, 409 So.2d 65 (Fla. 1st DCA 1982). Although, as stated, the date of filing of the declaration of condominium and the master sublease fixes the rights and obligations of the parties and will many times determine which statutes are applicable to a given cause, Tradewinds of Pompano, our research reveals that it has been routine for many developers to include a clause in their declarations of condominium incorporating the provisions of the Condominium Act by the reference “as the same may be amended from time to time.” Known as the “automatic amendment theory,” the legal effect of such a clause is to apply all subsequent amendments of the Condominium Act to the declaration, as if expressed therein. See Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128, 132-133 (Fla.1978); 17 Am.Jur.2d Contracts § 257 n. 18 (1964).

We acknowledge that the master sublease depicted in the record before us has a clause incorporating all existing laws without using language bringing the “automatic amendment theory” into play. Such omission, is not crucial, however, to the determination of the first issue because, as explained in Cole v. Angora Enterprises, Inc., 403 So.2d 1010, 1012 (Fla. 4th DCA 1981), it is the language in the superior declaration of condominium that controls over the subordinate master sublease language. In Cole, the Fourth District noted that the lease “was obviously intended to be an integral part of the whole,” and that the declaration of condominium referred to the “attached” lease. The case at bar appears very similar, since the master sublease refers to itself as “Exhibit H to Declaration of Condominium For Sans Souci.”

Thus, if the condominium declaration includes the “from time to time” language that calls for application of the “automatic amendment theory,” it would be entirely appropriate for the Division to construe the declaration and the master sublease, two form documents drafted by the developer, most strictly against the drafter and apply the “automatic amendment theory” to the master sublease. As expressed by Judge Letts:

It is perfectly obvious that the “from time to time” language was intended to provide a safety valve and fall back position for the developer to insure the continuing integrity of the condominium from the vagaries of the legislature and the appellate courts. However, the developer-lessor should not expect to be able to invoke the “from time to time” language when it suits its purpose to do so and reject it when not to its taste and advantage.

Cole, at 1012.

Assuming that the automatic amendment theory is applicable, the law in effect at the time the agency rendered its declaratory statement would control the condominium declaration and master sublease. Section 718.401(8)(a), Florida Statutes (1981), quite clearly states the inclusion or enforcement of land lease rent escalation clauses of the type in the master sublease is void as being contrary to public policy. Although the Division’s determination was based upon Section 718.401(8), Florida Statutes (Supp.1976), we view that section as having a similar prohibition against the inclusion or enforcement of rent escalation clauses in residential condominium land leases as is provided in the 1981 statute. And, while the wording in the version of the statute as applied by the Division in the case at bar is slightly different from the wording in the 1981 version, we view such change as formal only, acting merely as a vehicle for clarification of existing policy. Williams v. Hartford Accident and Indemnity Co., 382 So.2d 1216, 1220 (Fla.1980); Speights v. State, 414 So.2d 574, 577 (Fla. 1st DCA 1982).

II.

If no automatic amendment clause is contained in the condominium declaration or the master sublease, it will be necessary for the Division to determine next whether the assignment to Sans Souci may be considered a novation. Although normally an assignment involves only the act of a new party, the assignee, stepping into the shoe of the assignor, People v. Wurster, 97 Ill.App.3d 104, 52 Ill.Dec. 648, 422 N.E.2d 650, 652 (1981), resulting in the assignee to the lessor’s interest in a term of years acquiring all the rights of the lessor, 51C C.J.S. Landlord and Tenant § 42d (1968), an assignment, under certain circumstances, can also be a novation. See, e.g., Moring v. Miller, 330 So.2d 93 (Fla. 1st DCA 1976) and Reeves v. Don L. Tullis & Associates, Inc., 305 So.2d 813 (Fla. 1st DCA 1975). One Florida court has observed that “[a] novation is a mutual agreement between the parties concerned for the discharge of a valid existing obligation by the substitution of a valid new contract .... ” Miami National Bank v. Forecast Construction Corp., 366 So.2d 1202, 1204 (Fla. 3d DCA 1979). However, the drafters and reporters of the American Law Institute would refer to the foregoing as only a substitute contract. See 2 Restatement (Second) of Contracts § 279 (1981). Novations are more correctly viewed as a particular genre of substitute contract: “A novation is a substitute contract that includes as a party one who was neither the obligor nor obligee of the original duty.” Id. at § 280.

If the Sans Souci assignment may be properly regarded as a novation, there would be no unconstitutional impairment of a contractual obligation. Plainly, the obligation of a contract is not impaired if the parties agree to substitute a new contract for a prior agreement. Higbie v. County of Los Angeles, 47 Cal.App.2d 281, 117 P.2d 933, 938 (1941); 16A Am.Jur.2d Constitutional Law § 695 n. 97 (1979). Hence, we would be required to affirm the Division’s determination to apply Section 718.401(8), because the statute, effective on January 1, 1977, came into existence prior to the June 2, 1977 assignment of the leasehold. A “lease made subsequent to the enactment of a statute cannot be impaired by it.” Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 249, 42 S.Ct. 289, 292, 66 L.Ed. 595 (1922).

As a general rule, there are four essential elements necessary to form a substitute contract or novation, including: (1) the existence of a previously valid contract; (2) the agreement of all the parties to a new contract; (3) the extinguishment of the original contractual Obligation, and (4) the validity of the new contract. City of Buford v. International Systems, Inc., 158 Ga.App. 682, 282 S.E.2d 165 (1981); Moody v. Bogue, 310 N.W.2d 655 (Iowa App.1981); and Sims v. Craig, 96 N.M. 33, 627 P.2d 875 (1981); accord, United Bonding Insurance Co. v. Southeast Regional Builders, Inc., 236 So.2d 460, 463 (Fla. 1st DCA 1970). The record before us appears to satisfy the first and fourth requirements, but we cannot ascertain, due to the state of the record, whether the assignment satisfies the second and third prerequisites. Consequently, the case will have to be remanded for further proceedings necessary to determine this issue, including the supplementation of the record, if possible. See Suntide Condomini- urn Association, Inc. v. Division of Florida Land Sales and Condominiums, 409 So.2d 65, 67 (Fla. 1st DCA 1982).

The parties should recognize that a novation is a form of affirmative defense, and the party who advocates a novation has the burden of proving it by clear, satisfactory evidence. Rodeway Inns of America v. Alpaugh, 390 So.2d 370, 372 (Fla. 2d DCA 1980); Miami National Bank, 366 So.2d at 1204. Therefore, it will be the responsibility of the appellee La Plaza Condominium Association and the unit sublessees to present satisfactory proof, since the novation is to their benefit.

We must now analyze what proof is necessary to sustain a finding that the assignment before us may be considered a novation. First, there must be proof of an extinguishment of the original contractual obligation. As one treatise has noted, “A novation by the substitution of landlords may result where a landlord has transferred his interest in the premises and the tenant accepts the new landlord and releases the old one from his obligations under the lease.” 66 C.J.S. Novation § 18(2) n. 17 (1950). A sublessor, such as Sans Souci’s predecessor in interest, has certain obligations to its sublessees, including that of maintaining the sublessor in quiet possession through an implied covenant of quiet enjoyment. See Hankins v. Smith, 103 Fla. 892, 138 So. 494, 496 (1931); 34 Fla.Jur.2d Landlord & Tenant § 49 (1982). Consequently, the evidence must show not only an acceptance by the sublessees of Sans Souci, as the new sublessor, but it must also show a discharge by the sublessees of Gulf Florida’s obligations, such as its keeping the sublessees in quiet possession of their land. Knapp v. Guerin, 144 La. 754, 81 So. 302, 304-305 (1919).

Furthermore, the sublessees’ debts and any other obligations to Gulf Florida must be extinguished. The fact that the debts for the same terms and amounts may have merely been transferred to Sans Souci is no bar to a determination that the original contractual obligation was extinguished, since a novation may occur if the performance to be rendered to a new creditor or obligee is the same as under an original contract. Restatement, supra, at- § 280 comment a. A problem arises, however, if the older debt and concomitant obligations have not been extinguished, and the subles-sees would somehow continue to be liable under the prior contract to Gulf Florida.

The Division must also ascertain whether the sublessees have consented to Sans Souci as the new sublessor. State Savings & Loan Association v. Kauaian Development Co., 50 Haw. 540, 445 P.2d 109, 120 (1968); Knapp, 81 So. at 305. Consent must be express and will not be implied. 66 C.J.S. Novation, supra, § 18 at n. 19. This is because a novation is predicated upon consent, and the implication of consent based upon actions of the sublessees, such as the payment of rent to the new sublessor, does not rise to the level of the express consent required. Knapp, 81 So. at 305; accord, Prucha v. Guarantee Reserve Life Insurance Co., 358 So.2d 1155, 1157-1158 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979); cf. Palmetto Manufacturing Co. v. Parker & Anderson, 123 Ga. 798, 51 S.E. 714, 715-716 (1905).

The issue of consent is particularly troublesome in that there is a distinct difference of opinion among the various jurisdictions in regard to the requirement that the consent of all parties to the novation must be contemporaneous. See 58 Am.Jur.2d Novation § 19 (1971); Annot., 61 A.L.R.2d 755 § 4 nn. 18, 20 (1958). Some jurisdictions apparently do not require a contemporaneous consent. See Greenwood Leflore Hospital Commission v. Turner, 213 Miss. 200, 56 So.2d 496 (1952); F.I. Somers & Sons, Inc. v. LeClerc, 110 Vt. 408, 8 A.2d 663, 665 (1939); Dunn v. Clinchfield R. Co., 19 F.2d 810, 813 (6th Cir.1927), cert. denied, 275 U.S. 557, 48 S.Ct. 117, 72 L.Ed. 424 (Tenn. law); Silver v. Morin, 74 Mont. 348, 240 P. 825, 826 (1925); Martin v. Leeper Bros. Lumber Co., 48 Okl. 219, 149 P. 1140 (1915). Other jurisdictions have found a purported novation to fail in the absence of a contemporaneous consent by all involved. Scott v. Wyoming Oils, 52 Wyo. 433, 75 P.2d 764, 772 (1938); Swift & Co. v. Madden, 35 S.W.2d 59 at 59 (Mo.App.1931); Horn v. McKinney, 5 Ind.App. 348, 32 N.E. 334, 335 (1892); cf. Scarboro v. Universal G.I.T. Credit Corp., 364 F.2d 10, 14 (5th Cir.1966) (Ga. law).

Apparently, no Florida court has squarely confronted this issue. We have attempted to ascertain the reasoning for requiring a contemporaneous consent and can only point to rather unpersuasive language in Wyoming Oils, wherein the Wyoming Supreme Court stated that a novation “cannot be made binding by the subsequent acquiescence or ratification without a new consideration or the existence of facts which will constitute an estoppel.” 75 P.2d at 772. Without belaboring the matter, we are unpersuaded by this argument and prefer to adopt the more modern position advocated by the drafters of the Restatement (Second) of Contracts. The drafters have noted that an assent or consent at the same place or time need not be demanded. Thus, as applied to the present case, all that is required is that the consent should be so certain as to assure the Division that the manifestations refer to one another. Restatement, supra, § 280 at comment c.

In proving the existence of: (1) the extin-guishment of the debt between Gulf Florida and the sublessees and (2) the agreement of all parties, the sublessees will be required to present documentary proof, because the sublease novations involve a term in excess of one year. Rodeway Inns of America, 390 So.2d at 372 n. 1. If the documentation exists, it should be included in the record.

Affirmed in part, reversed in part, and remanded for further consistent proceedings.

McCORD and SHAW, JJ., concur.

      .
      MASTER
      SUBLEASE
      For Apartment in SANS SOUCI, a Condominium
      THIS SUBLEASE AGREEMENT, executed this date by and between Gulf Florida Development Corporation, a Florida corporation, hereinafter called “Sublessor”, and -, hereinafter called “Subles-see”.
      WITNESSETH:
      Sublessor, in consideration of the rent hereinafter reserved, the covenants by Sub-lessee herein contained, and other good and valuable considerations, does hereby lease, rent, let and demise unto said Sublessee, Apartment No._, SANS SOUCI, a Condominium as per Declaration of Condominium thereof recorded in Official Record Book -, page -, public records, Escambia County, Florida, together with Indoor Parking Space No-, upon the following terms and conditions:

      . Section 120.565 states in relevant part:
      Declaratory statement by agencies — Each agency shall provide by rule the procedure for the filing and prompt disposition of petitions for declaratory statements. A declaratory statement shall set out the agency’s opinion as to the applicability of a specified statutory provision or of any rule or order of the agency as it applies to the petitioner in his particular set of circumstances only....

      . Section 718.401(8), Florida Statutes (Supp. 1976), was enacted by Chapter 76-222, Laws of Florida, and states:
      It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in leases for recreational facilities, land or other commonly used facilities serving condominiums, and such clauses are hereby declared void for public policy. For the purposes of this section, an escalation clause is any clause in a condominium lease which provides that the rental under the lease shall increase at the same percentage rate as any nationally recognized and conveniently available commodity or consumer price index.

      . Section 718.501(1), Florida Statutes (1981), states that the Division
      has the power to enforce and ensure compliance with the provisions of this chapter [Chapter 718] and rules promulgated [Chap. 7D, F.A.C.] pursuant hereto relating to the development, construction, sale, lease, ownership, operation, and management of residential condominium units. In performing its duties, the Division shall have the following powers and duties:
      a) The Division may make necessary public or private investigations ... to determine whether any person has violated this chapter or any rule or order hereunder, ...
      ******
      f) The division is authorized to promulgate rules, pursuant to Chapter 120, necessary to implement, enforce and interpret this chapter.
      ******
      h) The division shall annually provide each [condominium] association with a summary of declaratory statements and formal legal opinions relating to the operations of condominiums. ...”
      (e.s.) Additionally, a recent amendment to the “Condominium Act”, tentatively assigned to Section 718.501(l)(g), states that “[t]he Division of Florida Land Sales and Condominiums shall establish procedures for the providing of notice to an Association when the Division is considering the issuance of a declaratory statement with respect to the declaration of condominiums or any related document governing in such condominium community.” (e.s.) See Ch. 82-113, § 2, Laws of Florida.

      . See Falls Chase, — So.2d - , 7 FLW at 1575.

      . See Ch. 76-222, § 6, Laws of Florida.

      . We note that at least one additional legal theory — that of contractual unconscionability — might effectively invalidate the escalation clause at bar. This theory has been discussed in a number of recent Florida cases. See Steinhardt v. Rudolph, - So.2d - , 7 FLW 1793 (Fla. 3d DCA, August 17, 1982); Kohl v. Bay Colony Club Condominium, Inc., 398 So.2d 865 (Fla. 4th DCA 1981), rev. denied, 408 So.2d 1094 (Fla. 1981); Bennett v. Behring Corp., 466 F.Supp. 689 (S.D.Fla.1979), appeal dismissed, 629 F.2d 393 (5th Cir.1980). That the escalation clause is unconscionable is an issue neither raised nor argued below, or on appeal. Therefore, we do not address the issue in this opinion.

      . The popularity of this clause is attested to by numerous Florida cases construing this type of clause. See Century Village, Inc. v. Wellington, E, F, K, L, H, J, M, & G, Condominium Association, 361 So.2d 128 (Fla.1978); Sandalfoot South One, Inc. v. Sandalfoot Cove Country Club, Inc., 404 So.2d 752 (Fla. 5th DCA 1981); Cole v. Angora Enterprises, Inc., 403 So.2d 1010 (Fla. 4th DCA 1981); Coral Isle East Condominium v. Snyder, 395 So.2d 1204 (Fla. 3d DCA 1981), rev. denied, 407 So.2d 1105 (Fla.1981); and Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 517 (Fla.1978).

      . See Mandelkorn, Krul & Galt, Condominium Litigation, 33 U.Miami L.Rev. 911, 926-934 (1979).

      . See Note 1.

      . Similarly, if the sublease included the “from time to time” language in it, regardless of the inclusion of that language in the declaration of condominium, we would be inclined to construe such language against the drafter and apply the “automatic amendment theory.”

      . Section 718.401(8)(a), Florida Statutes (1981), states in pertinent part: “It is declared that the public policy of this state prohibits the inclusion or enforcement of escalation clauses in land leases or other leases or agreements for recreational facilities, land, or other commonly used facilities serving residential condominiums, and such clauses are hereby declared void for public policy .... ” The Division’s declaratory statement was rended on August 13, 1981. Since Section 718.401(8)(a), was effective on June 26, 1981, see Chapter 81-185, Section 17, Laws of Florida, the foregoing quoted section was applicable to the agency’s determination.


author: MILLS, Judge.

text:
    Monica E. PERKINS, Appellant, v. Joseph Jackson HINTON, Appellee. Loretta McQUEEN, Appellant, v. Wallace A. DAVIS, Appellee.
    Nos. AH-204, AH-205.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1982.
    Rehearing Denied Nov. 19, 1982.
    Joseph R. Boyd of Boyd & Smith, P.A., Chriss Walker, Dept, of Health and Rehabilitative Services, Tallahassee, for appellants.

      No appearance for appellees.
   MILLS, Judge.

In this appeal from final judgments in paternity actions, Perkins and McQueen contend the trial court erred in reserving jurisdiction to determine the amount of child support due them by Hinton and Davis. We affirm.

Defaults were entered against Hinton and Davis. They were found to be the fathers of the children of Perkins and McQueen. The trial court refused to award child support because it needed to know the financial status of Hinton and Davis before determining their ability to respond to a support obligation.

If it is necessary to determine the amount of damages or to make an investigation of any other matter to enable the court to enter judgment or to effectuate it, the court may conduct hearings as it deems necessary. Rule 1.500(e), Florida Rules of Civil Procedure. Because a child support award is similar to that of damages, there is no error in the trial court’s insistence that Perkins and McQueen subpoena Hinton and Davis to appear before the court so that it might equitably determine a child support award.

While the use of the word “shall” is ordinarily mandatory in nature, Section 742.041(2), Florida Statutes (1979), provides: “Such amounts [the sliding scale in subsection (1) ] may be increased or reduced by the judge in his discretion depending upon the circumstances and ability of the defendant.” (Emphasis supplied) Thus, contrary to the arguments of Perkins and McQueen, Chapter 742 does not mandate a given amount of child support in every action.

AFFIRMED.

ROBERT P. SMITH, Jr., C.J., and THOMPSON, J., concur.