author: COWART, Judge. SHÁRP, Judge,

text:
    Laura N. BUCKNER, Appellant/Cross-Appellee, v. ALLERGAN PHARMACEUTICALS, INC., a foreign corporation, et al, Appellees, and Philips Roxanne Laboratories, Inc., et al, Cross-Appellants.
    No. 80-654.
    District Court of Appeal of Florida, Fifth District.
    July 1, 1981.

      Larry Sands, P. A., Daytona Beach, for appellant/cross-appellee.
    Carey N. Bos, of Rogers & Dowling, P. A., Orlando, for appellee Allergan Pharmaceuticals, Inc.
    Dudley D. Allen, of Milam & Wilbur, Jacksonville, for appellee/cross-appellant Armour Pharmaceutical Company.
    Sutton G. Hilyard, Jr., and D. Andrew DeBevoise, of Pitts, Eubanks & Ross, P. A., Orlando, for appellee/cross-appellant Philips Roxanne Laboratories, Inc.
    A. Craig Cameron, of Gosney, Cameron, Parsons & Marriott, P. A., Daytona Beach, for appellee Smith, Miller & Patch, a Division of Cooper Laboratories.
    Ronald L. Harrop, of Gurney, Gurney & Handley, P. A., Orlando, for appellee E. R. Squibb & Sons, Inc.
    Ted R. Manry, III, and David J. Kadyk, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee Upjohn Company.
   COWART, Judge.

Appellant filed a complaint based upon strict liability in tort for bodily injuries resulting from alleged defective products against many manufacturers of prescription steroid drugs. Appellant, in her complaint, alleged various doctors prescribed corticosteroids for eye disorders without warning her of known dangerous side effects; that she took the drugs without knowledge of their danger and that as a result she developed aseptic necrosis of her femoral heads which was one of the known harmful side effects. Additionally, it was alleged that the defendant manufacturers knew of the numerous dangerous effects of such drugs and gave adequate warnings to the medical profession but also knew or should have known that the medical profession was not adequately relaying those warnings to the consuming public. This appeal results from a trial court dismissal of the complaint for failure to state a cause of action. We affirm.

Appellant argues that the doctrine of strict liability requires the manufacturer of an inherently dangerous product to convey a fair and adequate warning of its dangerous potentialities to the ultimate consumer, as was applied to a distributor of carbon tetrachloride in Tampa Drug Company v. Wait, 103 So.2d 603 (Fla.1958), and to a manufacturer of a lead arsenic insecticide spray in Edwards v. California Chemical Company, 245 So.2d 259 (Fla.4th DCA), cert. denied, 247 So.2d 440 (Fla.1971).

Appellant cites Lake v. Konstantinu, 189 So.2d 171 (Fla.2d DCA 1966), as authority for the proposition that allegations that the manufacturer of a prescription drug failed to adequately warn the ultimate consumer raises a question of fact for jury determination. It does appear from the opinion in Lake that the plaintiff sued both the prescribing physician and the drug manufacturer and that the trial court did deny the manufacturer’s motion to dismiss for failure to state a cause of action. However, the manufacturer did not appeal that ruling but filed an answer and moved for summary judgment which was granted. When the plaintiff appealed the summary judgment the manufacturer apparently did not cross-assign as error the trial court’s denial of its motion to dismiss. For this reason the appellate court considered the manufacturer’s brief as to the liability of the manufacturer to the ultimate patient to be “utterly irrelevant” to the issue on appeal which it considered to be whether an issue of material fact existed which precluded the granting of the summary judgment. Lake therefore relates only to summary judgments and does not consider the question raised by this appeal.

A manufacturer of a dangerous commodity, such as a drug, does have a duty to warn but when the commodity is a prescription drug we hold that this duty to warn is fulfilled by an adequate warning given to those members of the medical community lawfully authorized to prescribe, dispense and administer prescription drugs. Although we find no Florida case directly in point, this view is in accord with numerous decisions from other jurisdictions. See, e. g., Chambers v. G.D. Searle and Company, 567 F.2d 269 (4th Cir. 1977) (applying Maryland law); Givens v. Lederle, 556 F.2d 1341 (5th Cir. 1977) (applying Florida law); Dalke v. Upjohn Company, 555 F.2d 245 (9th Cir. 1977) (applying Washington law); Salmon v. Park Davis and Company, 520 F.2d 1359 (4th Cir. 1975) (applying North Carolina law); McCue v. Norwich Pharmacal Company, 453 F.2d 1033 (1st Cir. 1972) (applying New Hampshire law); Sterling Drug, Inc. v. Cornish, 370 F.2d 82 (8th Cir. 1966) (applying Missouri law); Terhune v. A.H. Robbins Company, 90 Wash.2d 9, 577 P.2d 975 (1978); 28 C.J.S. Drugs and Narcotics Supplement § 57 (1974). Compare Terhune, (characterizing the philosophy as a well established rule) with Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974) (characterizing the special standard as an exception to the restatement general rule). The rationale is explained in Reyes as follows

Prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative. Pharmaceutical companies then, who must warn ultimate purchasers of dangers inherent in patent drugs sold over the counter, in selling prescription drugs are required to warn only the prescribing physician, who acts as a “learned intermediary” between manufacturer and consumer.

Id. at 1276. This reasoning applies even in an action based upon the doctrine of strict liability as set out in section 402A of the Restatement (Second) of Torts (1959). In Terhune, the Supreme Court of Washington reiterated acceptance of the doctrine of strict liability as embodied in section 402A and held that Comment k governed the case before them. The court noted

[T]he comment does not purport to state what is ‘proper warning’ where such a product is involved. However, it has become a well-established rule that in such cases, the duty of the manufacturer to warn of dangers involved in use of a product is satisfied if he gives adequate warning to the physician who prescribes it [citations omitted]. 577 P.2d at 977.

The court went on to explain,

[w]here a product is available only on prescription or through the services of a physician, the physician acts as a ‘learned intermediary’ between the manufacturer or seller and the patient. It is his duty to inform himself of the qualities and characteristics of those products which he prescribes for or administers to or uses on his patients, and to exercise an independent judgment, taking into account his knowledge of the patient as well as the product. The patient is expected to and, it can be presumed, does place primary reliance upon that judgment. The physician decides what facts should be told to the patient. Thus if the product is properly labeled and carries the necessary instructions and warnings to fully apprise the physician of the proper procedures for use and the dangers involved, the manufacturer may reasonably assume that the physician will exercise the informed judgment thereby gained in conjunction with his own independent learning, in the best interest of the patient. Id. at 978.

In the instant case, appellant argues that the general rule should not apply because of the additional allegation that the manufacturers knew or should have known that the medical profession was not warning patients of potential side effects. A doctor’s duty is to

inform his patient what a reasonable prudent medical specialist would tell a person of ordinary understanding of the serious risks and the possibility of serious harm which may occur from a supposed course of therapy so that the patient’s choice will be an intelligent one, based upon sufficient knowledge to enable him to balance the possible risks against the possible benefits. [citations omitted] The extent of disclosure is a matter of medical judgment. ZeBarth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1, 11 (1972).

Therefore the doctor’s duty to warn patients of possible side effects is not absolute. See Annot., 79 A.L.R. 1028 (1977) (Physician’s duty to inform patient of nature and hazards of disease or treatment), and cases cited therein. In Florida this issue has been addressed along with the question of informed consent and the duty of the physician to inform with the extent of the information which may be required depending upon the particular circumstances. In Thomas v. Berrios, 348 So.2d 905 (Fla.2d DCA 1977), the Second District Court quoted the above language from Ze-Barth v. Swedish Hospital Medical Center and held that the standard was whether a reasonable medical practitioner in the community would make the pertinent disclosures under the same or similar circumstance. Since physicians do not have an absolute duty to inform patients of all possible side effects in every instance, failure to do so in a particular instance should not give rise to a duty in the manufacturer.

Although we hold the complaint does not state a cause of action it did raise a good faith justiciable issue in law sufficient to preclude an award of attorney’s fees under section 57.105, Florida Statutes (1979). See Allen v. Estate of Dutton, 384 So.2d 171 (Fla.5th DCA), pet. for review denied, 392 So.2d 1373 (Fla.1980).

The order dismissing the complaint is

AFFIRMED.

ORFINGER, J., concurs.

SHARP, J., concurs specially with opinion.

SHÁRP, Judge,

concurring specially.

This case poses two questions of “first impression” in Florida: (1) does a drug manufacturer who knows a particular doctor is failing to give warnings concerning side effects of toxic drugs to his patients have a duty to warn the patient? and (2) do drug manufacturers who know most doctors are not, as a group, giving the warnings concerning toxic drugs, have a duty to warn the patients?

The best answer to both questions is found in Chapter 500, Florida Statutes (1979). This complex statute carefully sets out when and whether drug manufacturers or dispensers must give “. . . warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration of administration or application, in such manner and form, as are necessary for the protection of users ...” Section 500.15(13)(a) covers “unsafe” kinds of drugs, such as the steroids involved in this case, and subsection (b) exempts the statutory warning requirement for these drugs, if prescribed by a licensed physician under the circumstances involved in this case.

Although Chapter 500 charges a state agency (rather than private parties) with its enforcement, and it also does not expressly deal with the scope of tort liability, it would be inappropriate for this court to adopt a higher or a “conflicting” duty to warn for drug manufacturers than is contained in Chapter 500. Cf. United Services Auto. Ass’n v. Butler, 359 So.2d 498 (Fla.4th DCA 1978). (Imposition of civil liability is for the legislature; courts should exercise judicial restraint).

      . The doctrine of strict liability as stated by the American Law Institute Restatement (Second) of Torts, section 402A has been adopted in Florida. West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976).

      . Prescription drugs were not involved in Tampa Drug Company and Edwards.

      . Chapters 458, 465 and 500, Florida Statutes, evidences legislated public policy to rely on physicians and pharmacists to protect the consuming public from injury by product use when the product is a prescription drug. See, e. g., §§ 500.02(1) and 500.151, Fla.Stat. (1979).

      . § 402A, Comment k. Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommoningly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason, cannot legally be sold except to physicians, or under the prescription of a physician. It is also true in particular of many new or experimental drugs as to which, because of the time and opportunity for sufficient medical experience, there can be no assurance of safety, or perhaps even of purity of ingredients, but such experience as there is justifies the marketing and use of the drug notwithstanding a medically recognizable risk. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparent reasonable risk.

      . Section 500.15(13)(b) provides:

        Any drug dispensed by filling or refílling a written or oral prescription of a practitioner licensed by law to administer such drug, shall be exempt from the requirements of this section, except subsections (1), (9), (11), (12) and the packaging requirements of subsection (7) and (8), if the drug bears a label containing the name and address of the dispenser or seller, the serial number and date of such prescription or its filling, the name of the prescriber and, if stated in the prescription, the name of the patient and the directions for use and cautionary statements. This exemption shall not apply to any drug dispensed in the course of the conduct of a business of dispensing drugs pursuant to diagnosis by mail, or to any drug dispensed in violation of paragraph (a) of this subsection .... (Emphasis supplied).


source: Caselaw Access Project

author: FERGUSON, Judge.

license: Public Domain

text:
    D. C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2333.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

By Petition for Delinquency it was represented that appellant committed several offenses against two police officers; (1) aggravated assault, (2) unlawful obstruction or opposition of the officers in the performance of their legal duties, (3) resisting arrest without violence and/or aggravated assault, and (4) battery on the same officers, all arising out of a single episode. Appellant brings this appeal from an adjudication of delinquency on each charge. We reverse because the trial court erred in restricting cross-examination of the state’s witnesses on issues going to bias and credibility.

The two officers were the state’s only witnesses. On cross-examination defense counsel sought to establish that both officers had visited defendant’s home prior to the date of the alleged offenses and that based on events of that visit, defendant’s sister had filed charges against both witnesses. The court sustained the state’s objection to the line of questioning.

The right to confrontation under the Sixth and Fourteenth Amendments may in certain cases require an opportunity to develop issues of bias by cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). All witnesses are subject to cross-examination for the purpose of discrediting them by bias, prejudice or interest and this is particularly so where a key witness is being cross-examined. Jones v. State, 385 So.2d 132 (Fla. 4th DCA 1980); Webb v. State, 336 So.2d 416 (Fla. 2d DCA 1976). The discretion normally accorded the trial court concerning the scope of cross-examination was clearly abused in this case.

The adjudication of delinquency is reversed and the cause remanded for a new hearing.


author: PER CURIAM.

text:
    I. M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-388.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

I. M., a juvenile appeals from the trial court’s denial of his motion to suppress as evidence cocaine found in one of his shoes as the result of a search by a customs officer at Miami International Airport. We affirm.

Appellant arrived at the airport on an international flight. He failed to pass Immigration when an officer discovered that the juvenile had arrived in the United States with a false Venezuelan passport. As the immigration officer escorted appellant into the customs area to pick up his luggage for the purpose of checking it for some proof of identification, a customs officer observed that appellant’s shoes were very stiff and did not bend as he walked. Within the past ten years, the officer had arrested eight to ten persons who had concealed contraband in the type of shoe worn by appellant. When appellant returned to the customs area some forty-five minutes later for customs inspection, the officer identified himself as a customs officer and asked appellant to come into a secondary examination room. Upon request by the officer, appellant removed his shoes. The officer then drilled a hole into one of the shoes. White powder, which proved to be cocaine, fell out and appellant was placed under arrest.

Border searches are permissible when there is reasonable suspicion that merchandise was introduced into the United States contrary to law, 19 U.S.C.A. § 482 (1980) and all persons coming into the United States from foreign countries are subject to detention and search by customs officers, 19 U.S.C.A. § 1582 (1980). We reject appellant’s argument that the above statutes do not apply and he could not be searched under the border search exception to the probable cause requirement because appellant had not cleared the customs area, and, therefore, had not technically “entered” the United States.

Although it is settled law that the customs area at an airport is the border for arriving international passengers, Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596, 602-3 (1973); United States v. Klein, 592 F.2d 909 (5th Cir. 1979); United States v. Himmelwright, 551 F.2d 991 (5th Cir. 1977), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977), these cases do not identify the above statutes as authorizing the search. In United States v. Chiarito, 507 F.2d 1098 (5th Cir. 1975), cert. denied, 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975), however, the court found that 19 U.S.C.A. § 482 applies to searches of persons entering the United States Customs Inspection area at Miami International Airport on an international flight. Accord, People v. Furey, 248 N.Y.S.2d 460, 42 Misc. 579 (1964)(applying 19 U.S.C.A. §§ 482 and 1582 to customs search at airport). A reading of 19 U.S.C.A. § 482 shows that customs officers are authorized to search within as well as without their respective districts and 19 U.S.C.A. § 1582 authorizes searches for all persons coming into the United States. We find nothing in these statutes which requires technical entry. Accordingly, we find that it is the physical presence in the United States and not a “technical entry” that triggers the applicability of the border search statutes 19 U.S.C.A. §§ 482 and 1582.

Having determined that a search was permissible under the border search statutes, we must now decide whether this particular search was constitutionally permissible under the Fourth Amendment to the United States Constitution.

If a border search is routine, a warrantless search may be performed under 19 U.S.C.A. § 1582, without any probable cause or reasonable suspicion. See State v. Smith, 399 So.2d 22 (Fla. 3d DCA 1981) (routine baggage search; adopting 5th Circuit test for Florida). A search of a shoe, in a case nearly identical to appellant’s, was found to be a routine border search justifiable without any degree of suspicion in United States v. Nieves, 609 F.2d 642 (2d Cir. 1979), cert. denied, sub. nom. Figueroa v. United States, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d 771 (1980). We do not here need to decide whether under Florida law the search of appellant’s shoe was a routine search because under the circumstances of this case the stricter test of “reasonable suspicion” is met. The customs officer’s past experience with shoes containing contraband and his observation that appellant wore shoes of the same type and was walking stiffly were sufficient to raise that official’s reasonable suspicion that appellant’s shoes contained contraband. Cf. United States v. Cortez, - U.S. -, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (agent’s experience as Border Patrol agent may be considered in determining whether officer could reasonably surmise vehicle was engaged in criminal activity). We find that, based on the customs officer’s prior experience he had reasonable suspicion to search appellant’s shoe.

Affirmed.

      . 19 U.S.C.A. § 482 (1980) provides:
      Any of the officers or persons authorized to board or search vessels may stop, search, and examine, as well without as within their respective districts, any vehicle, beast, or person, on which or whom he or they shall suspect there is merchandise which is subject to duty, or shall have been introduced into the United States in any manner contrary to law, whether by the person in possession or charge, or by, in, or upon such vehicle or beast, or otherwise, and to search any trunk or envelope, wherever found, in which he may have a reasonable cause to suspect there is merchandise which was imported contrary to law....

      . 19 U.S.C.A. § 1582 (1980) provides:
      The Secretary of the Treasury may prescribe regulations for the search of persons and baggage and he is authorized to employ female inspectors for the examination and search of persons of their own sex; and all persons coming into the United States from foreign countries shall be liable to detention and search by authorized officers or agents of the Government under such regulations.

      . We adopt the 5th Circuit test of “reasonable suspicion” to determine the validity of border searches which are more than routine. See United States v. Klein, supra. Although the circuits have adopted different tests for determining whether a particular border search is constitutionally permissible, the circuits agree that “reasonableness in the Fourth Amendment sense always depends upon a balance which must be struck between. .. the level of official intrusion into individual privacy... and the public interest to be served by such an intrusion.” United States v. Himmelwright, supra at 994. Compare Himmelwright, supra, (5th Circuit applies a single flexible “real suspicion” test), with United States v. Dorsey, 641 F.2d 1213 (7th Cir. 1981) (rejecting any labeling of requisite level of suspicion and applying direct balancing test); United States v. Carter, 563 F.2d 1360, 1361 (9th Cir. 1977) (“real suspicion” to search artificial leg) and Rivas v. United States, 368 F.2d 703 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967) (“clear indication” to search body cavities).


text:
    AIRPORT SIGN CORPORATION, a Florida Corporation, Appellant, v. DADE COUNTY and Richard Judy, Appellees.
    No. 80-1500.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Peeples, Earl, Smith, Moore & Blank and Richard M. Goldstein and Paul H. Amundsen, Miami, for appellant.

      Robert A. Ginsburg, County Atty. and L. H. Thornton, Asst. County Atty., for appel-lees.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   FERGUSON, Judge.

Airport Sign Corporation appeals the dismissal with prejudice of its second amended complaint against Dade County and Richard Judy, a county employee.

Sign Corporation maintained an advertising billboard on a small irregular shaped piece of property in Dade County. Eastern Airlines had contracted with Sign Corporation for advertising space on this billboard, but terminated its contract in September, 1978 because the bushes, trees and hedges planted by Dade County on the right-of-way adjacent to Sign Corporation’s property in 1973 had grown so that the view of the billboard was now obscured.

Sign Corporation sued Dade County and Judy for damages caused by the shrubbery. Dade County and Judy filed a motion to dismiss the complaint oh the ground that the action was barred by the statute of limitations because the only date appearing on the face of the complaint was the date of planting, September 1973. Sign Corporation then filed an amended complaint which, read as a whole, stated facts amounting to an allegation that the contract between Sign Corporation and Eastern Airlines was terminated in September, 1978 because the landscaping of Dade County obstructed the view of the billboard, causing financial loss. The amended complaint was also dismissed on the grounds that the statute of limitations started to run in 1973 and not when the damages were actually sustained in 1978. Sign Corporation then filed a second amended complaint omitting all dates. This third complaint was dismissed with prejudice on the ground that Sign Corporation failed to allege that the acts of Dade County arose within the four year statutory limit.

Until damages are actually incurred, a party cannot state a cause of action and the statute of limitation does not begin to run. Town of Miami Springs v. Lawrence, 102 So.2d 143 (Fla.1958). See, e. g., Department of Transportation v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980).

Section 768.28, Florida Statutes (1979), does not create a new cause of action but provides an additional remedy for causes of actions which otherwise exist. See, e. g., Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla. 3d DCA 1979). There is no requirement that Sign Corporation as owner of the property affirmatively plead that it was not barred by the statute of limitations. Wetzel v. A. Duda & Sons, 306 So.2d 533 (Fla. 4th DCA 1975), cert. denied, 316 So.2d 289 (Fla.1975).

In ruling on a motion to dismiss, the trial court must confine itself strictly to the allegations within the four corners of the complaint. Pizzi v. Central Bank and Trust Company, 250 So.2d 895 (Fla.1971); Ecological Science Corp. v. Boca Ciega Sanitary District, 317 So.2d 857 (Fla. 2d DCA 1975); Temples v. Florida Industrial Construction Co., 310 So.2d 326 (Fla. 2d DCA 1975); Whitfield v. Whitfield, 161 So.2d 256 (Fla. 3d DCA 1964).

Under the circumstances of this case, we hold it was error to dismiss the Sign Corporation’s second amended complaint with prejudice.

Reversed and remanded for proceedings consistent with this opinion.


text:
    D.J.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1663.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Carhart & McGuirk and James McGuirk, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

We affirm the trial court’s adjudication of delinquency based on jury findings that the juvenile committed burglary and theft.

Where the victim testified that she did not know the juvenile and had never given him permission to visit her home, evidence that the juvenile’s fingerprints were found on the entry window and on items inside the bedroom of victim’s private residence is sufficient to support the conviction. Roberts v. State, 268 So.2d 578 (Fla.3d DCA 1972). See also Parrish v. State, 366 So.2d 530 (Fla.3d DCA 1979).

Where the only objection to admission of the fingerprint evidence at trial is on grounds of relevancy, the motion to suppress the fingerprint standards is not properly preserved for appeal. See, e. g., Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980) (where identity is an issue, relevant evidence is admissible); Henderson v. State, 304 So.2d 537 (Fla.3d DCA 1974) (evidence admissible when identity is major issue). See also Alvarez v. State, 400 So.2d 768 (Fla. 4th DCA 1981) (Case No. 79-1546, opinion filed May 27, 1981) (failure to object at trial to introduction of materials sought to have been suppressed in pretrial motion fails to preserve issue for review); Jones v. State, 360 So.2d 1293 (Fla.3d DCA 1978) (failure to renew an objection at trial contemporaneously with admission of the contested evidence constitutes a waiver of a right to appellate review even though issues of constitutional dimension are claimed).

Affirmed.


text:
    Marvel WOMACK, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1726.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See: Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971); Hart v. State, 364 So.2d 544 (Fla. 4th DCA 1979); Bracey v. State, 381 So.2d 370 (Fla. 4th DCA 1980); Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980). Also see: Loeb v. State, 387 So.2d 433 (Fla. 3d DCA 1980).


text:
    JOZU ENTERPRISES, INC., Appellant, v. Guillermo MULLER, Appellee.
    No. 80-2276.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Kaplan & Rapoport, Miami, for appellant.
    Steven R. Berger, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

We reverse the order of the trial court denying defendant’s motion for relief from judgment presented pursuant to Florida Rule of Civil Procedure 1.540(b)(4) on the ground that the judgment was void because it affirmatively appears that the allegations in the ad damnum clause were insufficient to confer jurisdiction on the circuit court to enter a judgment of possession. § 34.-011(1), Fla.Stat. (1979); Williams v. Gund, 334 So.2d 314 (Fla.2d DCA 1976); Fla.R. Civ.P. 1.110(b)(1).


text:
    Carey Junior HENDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1374.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Carey Junior Henderson, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: MOORE, Judge.

text:
    Steven WEIL, Appellant, v. CHASAN, LEYNER, HOLLAND & TARRANT, Appellee.
    No. 79-996.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1981.
    Kenneth B. Swinger of Kenneth B. Swinger & Associates, Fort Lauderdale, for appellant.
    Peter N. Hanna, Fort Lauderdale, for appellee.
   MOORE, Judge.

The appellant, Steven Weil, appeals a final judgment entered after a non-jury trial. The judgment was based upon the trial court’s giving full faith and credit to a New Jersey judgment obtained by the appellees, a law firm, for services rendered to the appellant in New Jersey. The appellant contends that the New Jersey court never obtained jurisdiction over him; thus, the trial court erred in granting full faith and credit to the New Jersey judgment. We agree and reverse.

The appellees allegedly obtained service of process upon appellant pursuant to New Jersey Civil Practice Rule 4:4-4(e) which states:

Substituted Service on Certain Individuals. Whenever it shall appear by affidavit of the attorney for the plaintiff or of any person having knowledge of the facts, that, after diligent inquiry and effort, an individual cannot be served in this State under any of the preceding paragraphs of this rule, then, consistent with due process of law, service may be made by mailing, by registered or certified mail, return receipt requested, a copy of the summons and complaint to the individual addressed to his dwelling house or usual place of abode or, with postal instructions to deliver to addressee only, to his place of business or employment. If the addressee refuses to claim or accept delivery of registered or certified mail, service may be made by ordinary mail addressed to him at his dwelling house or usual place of abode.

We perceive this rule as follows:

(1) When a party cannot be served in the State of New Jersey, after reasonable and diligent inquiry, out of state substituted service of process may be made by registered or certified mail at the party’s dwelling house, place of abode, or place of business or employment;

(2) If this form of “substituted service” is refused or not accepted by the party to be served, an alternative substituted service is available. The alternative substituted service consists of mailing the summons and complaint by ordinary mail to the party’s dwelling house or usual place of abode.

Before attempting to affect service of process upon the appellant, the appellees sent demand letters to the appellant at three different addresses, two in New York City and one in Florida. The letters sent to the New York addresses were unclaimed, but the appellant received and answered the letter sent to Sunrise, Florida. For reasons not clearly demonstrated in the record, the appellees concluded that the appellant’s address for proper service of process was one of the New York locations. They, therefore, selected that New York address for initial service of the summons and complaint by certified mail with directions to the postal service to deliver to the addressee only. This certified mail was returned to the appellees unclaimed. Subsequently, the summons and complaint were mailed and delivered to the New York address by ordinary mail. When the appellant did not respond, a default judgment was entered pursuant to which final judgment was entered against the appellant.

The record reflects that the first time that appellant received knowledge of the New Jersey action was when the final judgment was mailed to him in Florida. He asserts that the New York address where service was attempted by ordinary mail was not his residence, abode or place of employment or business. His uncontroverted testimony is that he was unfamiliar with the New York address prior to receipt of the New Jersey judgment. In fact, appellees concede that the New York address was not the dwelling house or usual place of abode of the appellant. Nevertheless, they contend that service of process was effectuated by ordinary mail delivery to the New York address.

The New Jersey courts have formulated a rather strict definition of “dwelling house or usual place of abode”. As stated by the court in Fidelity Deposit Company of Maryland v. Abagnale, 97 N.J.Super. 132, 234 A.2d 511 (1967):

The law in this State has developed in somewhat rigid conformity to the principle that provisions for substituted service, being in derogation of the common law, must be strictly construed. Hence, the rule has been consistently applied that one’s “dwelling house or usual place of abode” is limited in its meaning to the place where one is “actually living” at the time when service is made, (citations omitted) 234 A.2d at 519.
See also, Carlin v. Schuler, 89 N.J.Super. 366, 215 A.2d 56 (1965).

Thus, once the summons and complaint sent by certified mail to the New York address were returned unclaimed by the appellant, the appellees were bound to serve the appellant by ordinary mail at his dwelling house or usual place of abode. Under the circumstances of this case, the applicable New Jersey rule limited the situs where service of process could be achieved properly to the appellant’s dwelling house or usual place of abode. Nonetheless, the appellees elected to continue to attempt service on appellant at a location with which the appellant had, at most, a rather tenuous business contact, and which was not the appellant’s “dwelling house or usual place of abode” under any definition of those terms.

Within the constitutional requirement that service of process be reasonably calculated to apprise a party of the penden-cy of a suit, the states are free to formulate their own service of process standards. Once a state has provided a procedure for obtaining service of process, the parties to a lawsuit must adhere rigorously to that procedure. Here, it is obvious that the appel-lees failed to comply with the plain and simple language of the applicable New Jersey service of process rules. Since the appellant was never served with process in accordance with New Jersey law, the New Jersey court never obtained in personam jurisdiction over him. Therefore, the New Jersey judgment entered against the appellant was a nullity and the Florida trial court erred in granting that judgment full faith and credit. See Pacific Mills v. Hillman Garment, 87 So.2d 599 (Fla.1956); Markham v. Nisbet, 60 So.2d 393 (Fla.1952).

Accordingly, the trial court’s judgment in favor of the appellees is reversed.

REVERSED.

HERSEY and HURLEY, JJ., concur.


author: DOWNEY, Judge.

text:
    ALSAY-PIPPIN CORPORATION, Appellant/Cross-Appellee, v. Martha B. LUMERT, Appellee/Cross-Appellant, and William R. Peterson and Maryland Casualty Insurance Company, Appellees.
    No. 79-2592.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1981.

      Ralph B. Paxton of Paxton, Crow, Taplin & Bragg, P.A., West Palm Beach, for appellant/cross-appellee.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellee/cross-appellant Lumert.
    James D. Wilkerson, Jr., of Schuler & Wilkerson, P.A., West Palm Beach, for ap-pellee Peterson.
   DOWNEY, Judge.

Appellant Alsay-Pippin Corporation seeks review of a final judgment awarding appel-lee Martha B. Lumert $315,000 as a result of injuries suffered in an automobile accident. Lumert has also filed a cross appeal to review the trial court’s failure to grant Lumert a directed verdict on the issue of comparative negligence.

As Ms. Lumert was crossing Dixie Highway in a crosswalk at the intersection of Dixie Highway and 6th Street in the City of West Palm Beach, William R. Peterson turned onto Dixie Highway from 6th Street and struck Lumert causing her serious injuries. Lumert brought this suit against Peterson, Alsay-Pippin Corporation (Peterson’s employer), and Alsay’s insurer Maryland Casualty Company. A jury trial resulted in a special verdict finding that Peterson was 90% negligent and Lumert was 10% negligent; that Peterson was acting in the scope and course of his employment with Alsay at the time of the accident; and that the total damages suffered by Lumert were $350,000. The court reduced the award to $315,000, pursuant to the finding that Lumert was 10% negligent. From the final judgment on said verdict Alsay has perfected this appeal, and Lumert has perfected her cross appeal. Neither Peterson nor Maryland Casualty Company has sought review.

Alsay contends the trial court erred in 1) improperly instructing the jury on the issue regarding scope of employment, 2) applying Workmen’s Compensation law to the scope of employment issue rather than common law principles, and 3) failing to grant Al-say’s various motions for summary judgment, directed verdict, and new trial.

The main issue on appeal is whether Peterson was in the scope of his employment with Alsay-Pippin at the time of the accident.

The evidence viewed in a light most favorable to the judgment reflects that Peterson was employed by Alsay as a mechanic. It was Peterson’s duty to repair motors and other equipment used by Alsay in its industrial drilling business. On the date in question Peterson received permission from his supervisor to leave work early because he was going to take a carburetor to United Auto Service (Delco) for repairs. Since he would not be returning to work that day, he drove his own car. Alsay’s place of business was on Lantana Road, a number of miles south of Peterson’s home. United Auto Service is located north and east of Peterson’s home, so that the errand for his employer could not be fulfilled along his usual route from work to home. After leaving the carburetor with United Auto Service, Peterson started home but then decided to stop by Rinker Materials Corporation’s place of business to see if Rinker had a needed part for an engine he was repairing. Rinker did not have the part, so Peterson continued his trip home. Enroute he struck Lumert.

The foregoing recitation of evidentiary facts came from Peterson’s trial testimony. There is some contradiction of Peterson’s story, some inferences, and a great deal of innuendo in the record which could have led the jury to decide that Peterson was not in the scope of his employer’s business. The conflicting evidence in this case created a jury question as to whether Peterson was in the scope of his employment at the time of the accident. Saudi Arabian Airlines Corp. v. Dunn, 395 So.2d 1295 (Fla. 1st DCA 1981). By its special verdict, the jury specifically decided that question adversely to Alsay and the facts Peterson testified to were sufficient to support that verdict.

We have carefully considered the court’s instructions to the jury and find no fault with them. Nor are we convinced that there was an erroneous application of Workmen’s Compensation law pertaining to scope of authority rather than an application of common law principles of respondeat superior. Thus, we reject appellant’s contentions regarding the denial of its various motions for summary judgment, directed verdict, and new trial.

We have also considered the cross appeal and, while the question presented is close, we feel that there was sufficient evidence to support the jury’s finding as to Lumert’s negligence.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

HURLEY, J., and UPCHURCH, JOHN J., Associate Judge, concur.


text:
    COTTONBELT INSURANCE COMPANY and Douglas F. Sweet (Crews Bonding Service), Appellants, v. STATE of Florida, Appellee.
    No. 80-1634.
    District Court of Appeal of Florida, Fourth District.
    July 8, 1981.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellants seek review of an order denying their motion to vacate a final judgment declaring forfeiture of an appearance bond.

It appears that appellant Cottonbelt Insurance Company (through its agent, appellant Crews Bonding Agency of Jacksonville, Florida) wrote a bond to assure the appearance in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, on August 20, 1979, of Douglas Sweet, a defendant in a criminal case pending in that court. Through Crews Cotton-belt had also written a bond to assure Sweet’s appearance on a criminal charge in Duval County.

On May 22, 1979, the bonding agency surrendered Sweet to the Sheriff’s Department at the Duval County jail on both the Duval and Palm Beach County appearance bonds and obtained a written bond surrender slip. Within an hour after the surrender Sweet was released on his own recognizance by a Duval County circuit judge and has not been seen since.

On August 20, 1979, when Sweet did not appear in the Palm Beach County Circuit Court, a judge of that court entered an order estreating Sweet’s bond. On December 18, 1979, the court entered a final judgment directing that the State recover the amount of the bond. The clerk’s docket sheet relative to Sweet’s case, a copy of which is included in the record on appeal, shows a certified copy of the judgment went to the appellant bonding agency and the appellant insurance company. No appeal was taken from that judgment. On March 26, 1980, “pursuant to the provisions of Rule 1.540, Florida Rules of Civil Procedure and the provisions of Chapter 903, Florida Statutes” appellants filed a motion for relief from the order estreating the appearance bond and from the final judgment. Said motion asked the court to set aside the order estreating the bond and to vacate the final judgment on the grounds that the order and judgment were entered through mistake, inadvertence, surprise, or excusable neglect, and without fault on the part of the surety. In support of said grounds the motion recited the surrender of Sweet in Duval County on May 22,1979, his release on his own recognizance, and his subsequent disappearance. Apparently the court orally denied the motion, but no written order of denial was entered until September 22, 1980. After the oral denial of the motion, but before the written denial, appellants filed a petition for rehearing and a motion for reconsideration of the order denying the petition for rehearing. Both of said motions were denied.

Relying solely on Accredited Surety and Casualty Company, Inc. v. State, 383 So.2d 308 (Fla. 2d DCA 1980), appellants contend the trial court erred in refusing to grant relief from the order of estreature and final judgment because appellants had surrendered Sweet to proper authorities and the surety was no longer responsible for his appearance. The decision appellants rely on does not apply to this case because it dealt with a direct appeal from a judgment ordering forfeiture of an appearance bond, and the present case deals with a collateral attack on such a judgment.

Although the surrender problem bothered the trial judge, we need not decide whether the surrender in Duval County as opposed to Palm Beach County or the failure to notify Palm Beach County authorities of the surrender before the forfeiture is fatal to appellants’ contentions. We do not reach those questions and we affirm the order denying appellants’ motion to vacate because appellants did not present a case for relief under Rule 1.540(b) to the circuit court.

If the surrender of Sweet in Duval County was sufficient to discharge appellants’ liability on the bond the circuit court committed judicial error in entering the order of estreature and final judgment. That error could only be rectified on appeal from the final judgment. Although the motion for relief from the order of estreature and final judgment refers to Chapter 903 as well as Rule 1.540(b), that motion was based upon the grounds for relief set forth in Rule 1.540(b). However judicial error is not one of those grounds, and relief under the rule could not be based on the factual allegations of appellants’ motion. As this court said in Fiber Crete Homes, Inc. v. Division of Adm., Dept. of Tr., 315 So.2d 492, 493 (Fla. 4th DCA 1975):

“Rule 1.540 was intended to provide relief from judgments, decrees or orders under a limited set of circumstances; it was neither intended to serve as a substitute for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for appellate review of judicial error.. . . ‘a decision is inadvertent if it is the result of oversight, neglect or accident as distinguished from judicial error’.”

Neither party has argued the applicability of Rule 1.540(b) to a motion to vacate a judgment forfeiting an appearance bond, nor made any mention of the provisions of Section 903.27(2), Florida Statutes (1977). Thus we are not called on to answer the question whether Section 903.27(2), with its forty-five day limit for seeking vacation of a final judgment, is the exclusive vehicle for presenting such a motion. Compare City of Miami Beach v. Boyden, 232 So.2d 429 (Fla. 3d DCA 1970), and Resolute Insurance Company v. State, Dade County, 289 So.2d 456 (Fla. 3d DCA 1974), with Worthley v. State, Use & Benefit of Dade County, 320 So.2d 479 (Fla. 3d DCA 1975); Resolute Ins. Co. v. Brinker, 338 So.2d 861 (Fla. 3d DCA 1976); and State v. Sponheim, 366 So.2d 143 (Fla. 2d DCA 1979). We make no attempt to answer that question. It is sufficient to say that appellants have not demonstrated any error in the circuit court’s denial of their motion to vacate.

Accordingly, the judgment and order appealed from are affirmed.

AFFIRMED.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    Kevin Jay DUNMAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-981.
    District Court of Appeal of Florida, Fifth District.
    July 8, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Edward M. Chew, and Barbara A. Butler, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   PER CURIAM.

Pursuant to section 39.04(2)(e)(4), Florida Statutes (1979), Dunman was charged by an information with burglary of a dwelling and grand theft, second degree. At the time of his trial in the “adult” court, Dun-man was sixteen years old. The jury convicted him of both offenses and the trial judge immediately adjudicated and sentenced him to consecutive terms of twelve years for the burglary and five years for grand theft. Dunman contends that the trial judge erred because prior to sentencing he did not order a pre-sentence investigation pursuant to Florida Rule of Criminal Procedure 3.710 and he also failed to follow the sentencing procedure mandated by section 39.111(6), Florida Statutes (1979).

These points were not raised before the trial court. They concern procedural errors which are not fundamental; therefore, they cannot be raised for the first time on appeal. Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980), cert. denied, 392 So.2d 1375 (Fla.1980); Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980), approved, 394 So.2d 407 (Fla.1980); cf. Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981).

Accordingly, the judgment and sentence of appellant are affirmed without prejudice to his right to seek appropriate relief, e. g., by Florida Rule of Criminal Procedure 3.850. See Smith, supra.

AFFIRMED.

COBB, SHARP and COWART, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    Donald F. WINTER and Betty Winter, his wife, Appellants, v. SURFVIEW REALTY, INC., a Florida corporation, Appellee.
    No. 80-1194.
    District Court of Appeal of Florida, Fifth District.
    July 8, 1981.
    C. Allen Watts of Watts, Biernacki & Frost, P. A., Deland, for appellants.
    Walter E. Foster, Jr., Daytona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in favor of appellee in a suit for the payment of a real estate broker’s commission.

The parties entered into a contract entitled “Exclusive Right of Sale” which in essence allowed the “broker,” Surfview Realty, Inc., 365 days to sell the Kings Inn (and other named motels) and to collect a five percent commission for the sale. It also provided that the broker would receive the commission even if the owner (Winter) sold the property without the broker’s involvement and even if another broker secured the sale.

The appellee filed a suit alleging the Kings Inn had been sold for $1,850,000.00. The complaint alleged appellee had an exclusive right of sale at a five percent commission and that the sale occurred while the right of sale was in effect. Attached to the complaint was a copy of a warranty deed which allegedly was the deed which conveyed the Kings Inn property. The deed itself does not show the property was the Kings Inn but was a conveyance of certain lots in a subdivision known as East Dayto-na.

The complaint does not allege the appellee is a registered real estate broker. The appellee offered no proof the appellee was a registered real estate broker. Section 475.41, Florida Statutes (1977), provides that no contract for a real estate commission is valid unless the broker is registered under the laws of Florida. The absence of pleading and proof the broker is duly registered as a real estate broker defeats an action on a contract for a commission for the sale of real estate. The contract is unenforceable. Meadows of Beautiful Bronson, Inc. v. E.G.L. Investment Corp., 353 So.2d 199 (Fla. 3d DCA), cert. denied, 360 So.2d 1248 (Fla.1978); Geneva Investment, Ltd. v. Trafalgar Developers, Ltd., 274 So.2d 581 (Fla. 3d DCA), cert. dismissed, 285 So.2d 593 (Fla.1973); Florida Boca Raton Housing Ass’n v. Marquesee Associates, 177 So.2d 370 (Fla. 3d DCA 1965). Thus the trial court erred in failing to grant the involuntary dismissal sought by appellant and erred in rendering judgment for appellee.

In an action such as this where it is alleged a particular property was sold and a commission is due on account of the sale it is elemental that it must be proved the property was sold. Appellee attempted to prove the property was sold by the introduction of a copy of a deed, the same one attached to his complaint. He offered no proof the real property described in the deed was the real property, Kings Inn, referred to in the Exclusive Right of Sale contract. Thus appellee failed to prove the Kings Inn was sold and thus, again, failed to prove the right to a commission for a sale. The trial court erred in denying appellant’s motion for involuntary dismissal and erred in entering judgment for appel-lee.

It is also elementary that in order to prove entitlement to a commission based upon a percentage of the sale price then that sale price must be proved. The appel-lee offered no proof of the sale price. The trial court erred by not granting the appellant’s motion for involuntary dismissal and erred in entering judgment for appellee.

On appeal the attorney for appellee urges this court that his failures in the trial court were wholly attributable to the fact that the attorney for appellants failed to bring the appellants to appear at the trial. The appellee’s attorney alleges that if those defendants were present then he could have proved his case. This is not so as to the broker’s license problem because they would not be qualified to testify to that matter. While it may be so as to other matters the appellee’s attorney was under an obligation to subpoena any witness he might want ,to have testify and the defendants were not obligated to present the case for the plaintiff. In choosing not to present his clients the defendant’s attorney showed nothing but good tactical judgment.

Based upon the insufficiency of the complaint and the failure of appellee to prove its case we must reverse the judgment of the trial court and remand this matter for entry of judgment for the appellants. Canada Dry Bottling Company v. K.M.A., Inc., 349 So.2d 846 (Fla. 2d DCA 1977).

REVERSED AND REMANDED.

COBB and COWART, JJ., concur.

      . When this insufficiency was raised at trial the appellee did not move to reopen the case to prove the deficiency and then move to amend the pleadings to conform to the evidence as he could have done. See Fla.R.Civ.P. 1.420(b).


author: BOARDMAN, Judge.

text:
    Lula Mae MATHEWS, as personal representative of the Estate of Kasandra Anitra Swain, deceased, Appellant, v. CITY OF ST. PETERSBURG, FLORIDA, a Municipal Corporation, Appellee.
    No. 80-1379.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.
    Garold L. Morían, Tampa, for appellant.
    Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellee.
   BOARDMAN, Judge.

Lula Mae Mathews, as personal representative of the estate of Kasandra Anitra Swain, deceased, appeals the dismissal of her complaint for wrongful death against the City of St. Petersburg. We reverse.

The complaint alleged that the deceased (appellant’s daughter), a twenty-month-old child, fell into Booker Creek while playing in a nearby park, that she sustained injuries in this fall which resulted in her death approximately a month later; that the sides of the creek had been encased in concrete by the city so that the banks were vertical; that this encasement rendered escape by a child impossible and seriously impeded rescue; and that although a series of holes had been drilled along the top edges of the encasement in such a manner that they would support a fence or other barrier, no fence or barrier had been installed along the creek to prevent children from falling into or gaining access to the creek, notwithstanding the city’s knowledge that children frequently play in the park in close proximity to the creek.

The city moved to dismiss the complaint. The trial court granted the motion with leave to amend, ruling that the city’s decisions to encase the creek with vertical concrete sides and not to install fences or barriers along the sides of the creek were discretionary, planning level, rather than operational level, decisions within the meaning of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). When appellant waived her right to amend, the trial court granted the city’s motion to dismiss the complaint with prejudice. This appeal followed timely.

Commercial Carrier held that governmental planning level decisions remain immune from tort liability, notwithstanding the waiver of sovereign immunity contained in section 768.28, Florida Statutes (1979), “because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance.” Id. at 1022. However, this court explained in Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981), that although the initial decision to act may be purely discretionary, “once a government decides to act, whether out of obligation or free choice, it must act responsibly and reasonably under the existing circumstances, and in accordance with acceptable standards of care and common sense.” At p.-.

Neilson v. City of Tampa, 400 So.2d 799 (Fla.2d DCA 1981), is analogous to the case now before us. There the plaintiffs alleged that the intersection at which they were injured in an automobile accident was defectively designed and hazardous to motorists. The trial court dismissed the complaint, but this court reversed, holding: “[0]nce the planning decision was made to intersect the roads, the governmental entities could not negligently design or construct the facility with impunity.” At p. 800.

That principle applies here. While the city had the discretion to decide whether to alter the natural state of Booker Creek, once it decided to do so, the alterations had to be designed and performed in a reasonable manner. Collom v. City of St. Petersburg, supra. We therefore conclude that appellant had stated a cause of action for negligence against the city, and this case must be remanded for a determination as to whether the city’s concrete encasement of the sides of Booker Creek, coupled with its failure to then erect a barrier or fence along the banks, was, in fact, dangerous and did, in fact, proximately cause or contribute to the death of appellant’s child. Id.

Accordingly, the order granting the city’s motion to dismiss is REVERSED and the case REMANDED.

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


author: DANAHY, Judge.

text:
    SUN STATE ROOFING CO., INC., Appellant, v. COTTON STATES MUTUAL INSURANCE CO., Appellee.
    No. 80-1982.
    District Court of Appeal of Florida, Second District.
    July 8, 1981.

      D. Russell Stahl, Tampa, for appellant.
    Irving G. Lawrence and Eddy R. Resnick, of Lawrence & Gold, P. A., Tampa, for appellee.
   DANAHY, Judge.

Jimmy Harris was the sole stockholder in Sun State Roofing Co., Inc. (Sun State), which enjoyed the gratuitous use of approximately one-third of a building owned by Jimmy Harris and his wife Eleanor. A fire insurance policy issued to Sun State by Cotton States Mutual Insurance Company (Cotton States) provided $10,000 of coverage on the building used by Sun State, and $5,000 of coverage on the contents owned by Sun State. The building and the contents were damaged or destroyed by fire and Cotton States denied Sun State’s claim for benefits under the policy.

Sun State filed suit to enforce the insurance contract, and in its amended complaint alleged that $10,000 of contents owned by it had been damaged or destroyed by the fire. Sun State further alleged that the fire damaged or destroyed the building in which Sun State had an insurable interest in excess of $10,000.

The Harrises had purchased a fire insurance policy on the same building from North River Insurance Company (North River). After the fire, North River denied the Harrises’ claim and the Harrises brought an action to enforce that contract. The case was tried before a jury and a general verdict was entered in favor of North River.

In the instant case, after filing an answer and affirmative defenses, Cotton States moved for summary judgment. In support of the motion Cotton States alleged that Sun State did not have an insurable interest in the premises and that Sun State was estopped by the verdict against the Harrises from relitigating questions decided in the North River case. The trial court agreed and entered the summary judgment.

On appeal Sun State contends that it had an insurable interest in the property and that the verdict in favor of North River did not bar this action. We agree and reverse.

A trial court should not hesitate to grant a summary judgment in an appropriate case; however, it must be remembered that the burden is on the moving party to demonstrate conclusively that the opposing party cannot prevail. Therefore, if the record reveals the existence of any genuine issue of material fact, or the possibility of any such issue, or if the record raises even the slightest doubt that an issue might exist, a motion for summary judgment must be denied. Snyder v. Cheezem Development Corp., 373 So.2d 719 (Fla. 2d DCA 1979).

In the case at bar, the court concluded that the prior decision against the Harrises collaterally estopped Sun State from recovery. When a party relies upon the defense of collateral estoppel or estop-pel by judgment he must demonstrate that the issue to be barred from relitigation was determined in a previous suit. Allstate Insurance Co. v. A. D. H., Inc., 397 So.2d 928 (Fla. 3d DCA 1981). The conclusion that Sun State’s entire cause of action was barred by the verdict in favor of North River thus required a demonstration by Cotton States that an issue actually decided in the prior case precluded Sun State from being successful in this case. In an attempt to satisfy its burden, Cotton States alleged that the issues presented to the jury in the North River case were (1) whether the Har-rises intentionally started the fire; (2) whether the Harrises wilfully concealed facts concerning the building’s use from North River; and (3) whether the Harrises materially .increased the risk of fire by altering the use of the building without the knowledge of North River.

Because the jury returned a general verdict in favor of North River, it is impossible to determine which theory the jury relied on in denying coverage. The jury might have returned their verdict in favor of North River because they found that the Harrises altered the use of the building without North River’s knowledge, or because the Harrises concealed facts concerning the use of the building from North River. Obviously, neither of these reasons for denying coverage precluded Sun State from recovering under its contract with Cotton States. Because that is so, we hold that the trial court erred in concluding that Sun State’s action was barred by collateral estoppel.

In granting the motion for summary judgment the court also found that Sun State did not have an insurable interest in the damaged property. Section 627.405(2), Florida Statutes (1979), defines insurable interest as:

[A]ny actual, lawful, and substantial economic interest in the safety or preservation of the subject of insurance free from loss, destruction, or pecuniary damage or impairment.

Under this definition, the owner of property unquestionably has an insurable interest in that property. Here, Sun State’s allegation that the fire destroyed over $10,000 of its personal property was not contested. Therefore, the trial court erred when it found that Sun State’s entire cause of action failed for lack of an insurable interest.

A more difficult question is whether Sun State’s gratuitous use of one-third of the destroyed building constituted an insurable interest. The definition of insurable interest appears to include the gratuitous use of a building. Certainly, it cannot be said as a matter of law that the rent-free use of a building does not constitute an actual, lawful and substantial economic interest in the preservation of the building. Although no Florida court has addressed the question, the decisions of other courts support this result. See Liverpool and London and Globe Insurance Co. Ltd. v. Bolling, 176 Va. 182, 10 S.E.2d 518 (1940); Stokes v. Republic Underwriters Insurance Co., 387 So.2d 1261 (La.App.1980).

We hold that Sun State’s action against Cotton States is not barred by the principles of collateral estoppel or estoppel by judgment, and that the issue of whether Sun State had an insurable interest in the property was a question to be resolved by the finder of fact. Accordingly, we reverse the summary judgment and remand the case for further proceedings consistent with this opinion.

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


text:
    James H. BROWN, Appellant, v. Louie L. WAINWRIGHT, and Florida Parole and Probation Commission, etc., Appellees.
    No. AB-359.
    District Court of Appeal of Florida, First District.
    July 9, 1981.
    James H. Brown, pro se.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellees.
   PER CURIAM.

AFFIRMED. Horner v. State, 168 So.2d 137 (Fla.1965); State v. Hernandez, 217 So.2d 109 (Fla.1968).

SHAW, WENTWORTH and THOMPSON, JJ., concur.


text:
    Betty C. NEWGARD, Appellant, v. JOHNSTOWN PROPERTIES, S. E. d/b/a Williamsburg Village Apartments, Appellee.
    No. XX-265.
    District Court of Appeal of Florida, First District.
    July 9, 1981.
    Kevin V. Canipelli, Jacksonville, Robert M. Barnes, II, of Barnes & Barnes, P. A., Jacksonville, for appellant.
    Harold H. Catlin of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for appel-lee.
   PER CURIAM.

Newgard appeals the trial court’s order dismissing her second amended counterclaim. We reverse and remand.

On October 17, 1979, Johnstown Properties filed a complaint in county court seeking damages for unpaid rent and Newgard’s eviction. Newgard filed a counterclaim seeking relief based on, among other theories, breach of contract, fraud, and intentional interference with a business relationship. The cause was then transferred to the circuit court where Johnstown moved to dismiss for failure to state a cause of action. The trial court granted the dismissal and Newgard filed an amended counterclaim essentially seeking the same relief and alleging the same facts. Johnstown again moved for a dismissal which was granted by the trial court. Newgard then filed a second amended counterclaim which was also dismissed for failure to state a cause of action. Newgard appeals the order dismissing the second amended counterclaim.

In determining whether a counterclaim states a cause of action, the court must look to the four corners of the pleading. Wyatt v. McMullen, 350 So.2d 1115 (Fla. 1st DCA 1977). The pleading adequately states a cause of action if it contains a short plain statement of the ultimate facts which informs the defendant of the nature of the cause against him. Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974). We have reviewed the record and find the second amended counterclaim complies with the rules of civil procedure and sufficiently states a cause of action. Accordingly, the order is reversed and the cause remanded for proceedings consistent with this opinion.

SHIVERS and WENTWORTH, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.


text:
    Arthur R. HUGGINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. YY-281.
    District Court of Appeal of Florida, First District.
    July 9, 1981.
    Melanie Hines Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gregory Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The Order appealed indicates the trial court did not address or consider that portion of appellant’s motion seeking relief pursuant to Rule 3.850, Fla.R.Crim.P. Therefore, this cause is reversed and remanded to the trial court for consideration of those portions of appellant’s motion which seek to have the judgment and sentence vacated and set aside.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


author: SCHEB, Chief Judge.

text:
    CF CHEMICALS, INC., Petitioner, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Charles L. Hall, Respondents.
    No. 80-1711.
    District Court of Appeal of Florida, Second District.
    July 10, 1981.

      Peter W. Zinober, John P. McAdams and Stephen J. Powell, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for petitioner.
    James R. Parks and Richard S. Córtese, Tallahassee, for respondents.
   SCHEB, Chief Judge.

An appeals referee held that Charles L. Hall, an employee of petitioner CF Chemicals, Inc., was not entitled to unemployment compensation since petitioner properly discharged him for misconduct. The Unemployment Appeals Commission reversed. Pursuant to section 443.07(4), Florida Statutes (1979), petitioner seeks review of the Commission’s action.

Petitioner employed Mr. Hall as a laborer on July 26, 1978. The collective bargaining contract with Hall’s union stipulated that, if an employee was absent for three consecutive scheduled shifts without notice, the company could terminate him as a “voluntary quit.” Hall was absent from three consecutive work shifts starting March 4, and so petitioner discharged him on March 7, after which he filed an application for unemployment compensation benefits. When the claims examiner declined to approve his application, he requested a hearing before an appeals referee. The appeals referee found that petitioner had properly terminated Hall’s employment and affirmed the claims examiner’s determination that petitioner discharged Hall for misconduct, thereby disqualifying him from receiving benefits under section 443.06, Florida Statutes (1979).

Petitioner challenges the Unemployment Appeals Commission’s reversal of the appeals referee, contending that there was substantial competent evidence to support the factual findings of the referee. It points out that during the hearing before the appeals referee it introduced evidence of Hall’s numerous absences and disciplinary layoffs. The referee reviewed these events with Hall and listened to his comments concerning them. In addition, petitioner’s personnel supervisor, Mr. Alum-baugh, offered into evidence an Employee Relations Analysis prepared by Mr. Cum-bee, Hall’s immediate supervisor. The form, dated March 4, 1980, included the following notation: “Hall did not show up for work today and we received no call that he would be absent.” Hall, however, disputed its contents and testified that he telephoned Cumbee, his supervisor, to inform him that he would not report for work on March 4, the first day of the three-day absence which led immediately to his dismissal. Cumbee did not testify.

We think that the evidence set out above was sufficient to support the referee’s findings. The Commission contends, however, that in finding Hall guilty of misconduct, the referee relied on the personnel document introduced by petitioner and that this document was hearsay. Therefore, it argues that the document was legally insufficient to support a finding that Hall’s absence on March 4 was without notice to his employer. We disagree with these contentions.

Hearsay evidence is admissible for the purpose of supplementing or explaining other evidence in proceedings affecting substantial interests under section 120.57 of the Administrative Procedure Act, but it is not sufficient in itself to support a finding unless it would be admissible over objection in civil actions. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); § 120.58(1)(a), Fla.Stat. (1979); Fla.Admin.Code R. 38E-5.24(4)(d). Accordingly, the question becomes whether petitioner’s records would fall within an exception to the hearsay rule.

The records of regularly conducted business activities are admissible as an exception to the hearsay rule. Section 90.-803(6)(a), Florida Statutes (1979), states:

A memorandum, report, record, or data compilation in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of the business activity to make such memoranda, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness.

This section is applicable here. Alumbaugh, who offered the personnel document into evidence, was clearly its custodian, or otherwise responsible for it, since he was petitioner’s personnel supervisor. His testimony also established that Hall’s supervisor, Cumbee, filled out the form in the regular course of business, on March 4, 1980, and that such written attendance records were regularly completed and maintained to protect petitioner in the event an employee filed a grievance.

The foundation for the document might have been better laid. However, since the rules of procedure permit employee and employer alike to appear before an appeals referee without counsel, rigorous and technical adherence to those rules may not be exacted upon appeal if the court is satisfied on the entire record before it that the findings of the lower tribunal were correct. Giddens v. Appeal Board of Michigan Employment Security Commission, 4 Mich.App. 526, 145 N.W.2d 294 (1966).

Having .found that the evidence supported the referee’s findings, we must reinstate his decision. Florida Department of Commerce v. Dietz, 349 So.2d 1226 (Fla. 2d DCA 1977). Accordingly, we reverse the decision of the Unemployment Appeals Commission.

HOBSON and RYDER, JJ., concur.

      . For the reasons outlined in the above discussion, we reject appellees’ hearsay objections to the remaining evidence before the appeals referee.


author: HOBSON, Judge.

text:
    AMERICAN FIRE AND CASUALTY COMPANY, Appellant, v. Joyce Ann DAWSON, a minor, by her mother and father and next friends, Barbara Dawson, James E. Dawson, and Barbara Dawson and James E. Dawson, individually, Appellees.
    No. 80-2153.
    District Court of Appeal of Florida, Second District.
    July 10, 1981.
    Alton G. Pitts and R. Barry Morgan, of Pitts, Eubanks & Ross, P.A., Orlando, for appellant.
    Joe R. Young, Jr., of Bradley, Johnson, Nelson, Young & Horton, Lake Wales, for appellees.
   HOBSON, Judge.

Appellant American Fire and Casualty Company appeals on interlocutory, post-decretal order granting appellee’s motion for relief from final order pursuant to Florida Rule of Civil Procedure 1.540(b)(5) and setting aside an order of dismissal as to American Fire and Casualty Company dated November 5, 1975. We reverse.

The facts of this appeal are simple. Before our supreme court handed down its opinion in Williams v. Hartford Accident & Indemnity Co., 382 So.2d 1216 (Fla.1980), several decisions from the district courts of appeal had held that uninsured motorist benefits were available only where the tort-feasor was uninsured and not merely unde-rinsured. We so held in this case several years ago. American Fire & Casualty Co. v. Dawson, 320 So.2d 38 (Fla.2d DCA 1975). Accordingly, we ordered the trial court to dismiss appellant from this action, which it did in 1975.

Williams “disapproved” the earlier cases, including our opinion in this case. Appellee promptly moved the trial court, under Florida Rule of Civil Procedure 1.540(b)(5), to set aside its 1975 order, thus exhuming and rekindling the case against appellant.

Initially, the trial court denied appellees’ motion, but after rehearing entered an order granting the motion. That order had the effect of vacating and setting aside the final order of dismissal as to American Fire and Casualty Company.

In paragraph 8 of the subject order, the trial court stated that rule 1.540(b) “gives the court a grand reservoir of equitable power to do justice in a particular case, Pierce v. Cook and Company, 518 F.2d 720 (10th Cir. 1975), (discussing the federal counterpart Rule 60[b]).” Again, in paragraph 14, the trial court referred to the case of Pierce v. Cook and stated that that case was an “analogous situation under Rule 60[b], Federal Rules of Civil Procedure, the counterpart of Florida’s 1.540(b).”

While it is true that Federal Rule 60[b] is substantially the same as Florida Rule 1.540(b), the federal rule provides an additional ground in subsection (b)(6) for “any other reason justifying relief from the operation of a judgment.” This subsection bestows upon the federal courts a much broader base upon which to grant relief. The Florida rule restricts the state courts to those reasons and circumstances set forth in the rule. In other words, a Florida order is entitled to finality unless it falls strictly under one of the exceptions set forth in the rule.

For the reasons stated, we hold that the trial court erred in granting appellees’ motion for relief from final order.

REVERSED.

SCHEB, C. J., and DANAHY, J., concur.

      . Florida Rule of Civil Procedure 1.540(b)(5) provides that the court may relieve a party from a final judgment where “a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application.”
      As a matter of semantics, an appellate court decision is “disapproved” when the supreme court decides a completely unrelated case and finds that the precedents on which that case was argued are incorrect. When the supreme court “disapproved” our opinion in American Fire & Casualty Co. v. Dawson, it did so in a case with which the present parties were not involved. Thus, the prior judgment was not “reversed or otherwise vacated,” as required in subsection (b)(5). Moreover, our prior opinion did not have “prospective application” in order to bring it within the last exception to subsection (b)(5).


author: JOANOS, Judge.

text:
    Edward R. SHADE, Appellant, v. STATE of Florida, Appellee.
    No. VV-324.
    District Court of Appeal of Florida, First District.
    July 10, 1981.

      Michael Allen, Public Defender and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Carolyn Snur-kowski, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant, Edward R. Shade, appeals from a judgment of conviction for involuntary sexual battery, attempted armed robbery, trespass of a structure while armed with a dangerous weapon and trespass of a structure. He was given a life sentence for sexual battery and ten years for attempted armed robbery, to run consecutively. He was also given five years on each of the other two convictions to run concurrently with each other and with the life sentence. Appellant raises three issues on appeal. We affirm the trial court in all respects except in the adjudication and sentencing of the defendant for trespass of a structure.

Appellant first argues that the trial court should be reversed for denying his motion to suppress certain statements made by appellant to an investigator, Branson Fisher. We cannot agree.

In DeCastro v. State, 359 So.2d 551, 552 (Fla. 3rd DCA 1978), the proper review to be afforded a trial judge’s ruling on a motion to suppress is set out as follows:

In a motion to suppress evidence the trial judge is the trier of both fact and law. His conclusions come to the appellate court clothed with a presumption of correctness, and in testing the accuracy of his conclusions, the court should interpret the evidence and all reasonable inferences capable of being drawn therefrom in the light most favorable to sustain them, (citations omitted.)

Applying this principle to the evidence presented below we find that there was sufficient evidence to support the trial judge’s determination that the “statement was freely and voluntarily made.”

Nine days following his arrest, appellant submitted to a polygraph examination. After the polygraph examination had concluded, he was told he had “failed” the examination. Officer Fisher, the examiner, then proceeded to question appellant without polygraph equipment and appellant’s responses, including incriminating statements, were taped without his knowledge. It is his statements made after the polygraph that appellant seeks to suppress. Appellant asserts that the statements were inadmissible because the waiver form that he signed prior to the taking of the polygraph examination did not extend to the post-examination interview. The form signed by the appellant, however, reflects that he was advised fully of his constitutional rights. Further, Officer Fisher testified that he read appellant his rights before the polygraph test was given and that appellant stated that he understood his rights. Despite the form’s heading, the portion of the form dealing with appellant’s rights included references to an “interview” or “questioning” as well as the polygraph examination. In Burch v. State, 343 So.2d 831 (Fla.1977), the Florida Supreme Court upheld the voluntariness of a confession given after the defendant was advised that he had “failed” a pretended polygraph given with the defendant’s consent. That court noted that, as in this case, the defendant was advised of his rights before taking the polygraph, but he never requested an attorney nor did he ask for interrogation to cease. Burch, supra at page 832. The Florida Supreme Court in Hostzclaw v. State, 351 So.2d 970 (Fla.1977) approving State v. Hostzclaw, 351 So.2d 1033 (Fla. 4th DCA 1976), also upheld a post-polygraph confession stating that there was no difference between an incriminating statement made to a polygraph operator after completion of the polygraph examination and an incriminating statement knowingly and voluntarily made to any other officer.

Appellant cites Johnson v. State, 166 So.2d 798 (Fla. 2d DCA 1964) and argues that the statements were not “knowingly and voluntarily” made. In Johnson, that court upheld admission of a post-polygraph confession but stated that “if the defendant is forced to submit to the examination or if the methods of examination are such as to constitute actual or psychological coercion the resulting confession may well be found involuntary.” To illustrate the point, the Johnson court cited People v. Sims, 395 Ill. 69, 69 N.E.2d 336 (1946), where the court suppressed statements made by a 17 year old girl while the polygraph equipment was still attached to her but not operating. In that case there was no evidence that the girl knew the equipment was not operational and there was evidence by State witnesses that she objected to the use of the lie detector. Although the evidence in this case is somewhat vague as to whether appellant requested the test, there is evidence that he was advised that he could not be forced to submit to the test. In addition, he never indicated any resistance or reluctance to testing. Further, the Sims case is rendered inapplicable in that in the instant situation, appellant knew he was not still being tested when he gave his statement. The examining officer testified that he explained the operation of the equipment to appellant and that the equipment was disconnected before the confession was given.

Appellant next argues that the lower court was in error in not suppressing certain physical evidence, a pair of jeans and a “prayer cloth.” We cannot agree.

On the morning of the alleged criminal acts, the victim stated that her assailant was wearing faded jeans that were bleached in spots, sort of “tie-dyed.” One of the investigating officers also discovered a 4" X 4" piece of cloth near the torn screen where admission into the victim’s mobile home was apparently obtained. The cloth had a prayer or religious term on it and was totally dry although most of the area was wet from rain that fell earlier in the evening. The next day, a law enforcement officer saw a pair of tie-dyed jeans hanging on the clothesline in the front yard of the home where appellant’s mother and siblings lived and where appellant was staying. The officer then went and got the victim, drove her past appellant’s home and asked her if she recognized anything on the clothesline. She positively identified the jeans as those worn by the rapist. The officer then took the victim to her home and returned to the Shade house. At the Shade home the officer seized the jeans which appellant’s mother identified as belonging to appellant’s brother. The testimony was conflicting at that point as to whether or not appellant’s mother gave consent to enter the home, but in any event, the officer then searched the room of appellant’s brother and seized a wallet containing a “prayer cloth” identical to the one found at the scene of the crime. At the suppression hearing regarding the seized jeans and prayer cloth, the testimony reflected that the seized items belonged to appellant’s brother. There was also some confusion in the evidence as to whether appellant was living in the home or just there on a temporary stay. The trial judge denied the motion on the ground that appellant had no standing to challenge seizure of those items and, therefore, made no determination as to whether or not consent had been obtained.

In light of recent opinions of the United States Supreme Court, the trial court’s determination that appellant lacked “standing” to challenge the search and seizure of the jeans and prayer cloth is probably outdated. Regardless of the terminology, the proper inquiry was whether the evidence reflected a legitimate expectation of privacy concerning the area searched to obtain either the jeans or the prayer cloth. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). As to the jeans, it is clear that appellant did not have a reasonable expectation of privacy, as they were hanging on a clothesline in plain view from the street. See Rawlings v. Kentucky, id; Hornblower v. State, 351 So.2d 716, 718 n.1 (Fla.1977); State v. Detlefson, 335 So.2d 371 (Fla. 1st DCA 1976).

Seizure of the wallet, which contained appellant’s brother’s prayer cloth, presents a more difficult question, primarily because the scope of the privacy interest needs to be ascertained. According to the Supreme Court in Rawlings, the court should consider whether, in the course of the challenged search and seizure, “government officials violated any legitimate expectation of privacy held by petitioner.” (emphasis supplied) The State has argued that appellant had no legitimate expectation of privacy in the contents of the wallet (because the wallet belonged to appellant’s brother), or in the bedroom where the wallet was seized (because of testimony that appellant did not sleep in that bedroom.) To limit the scope of the inquiry to appellant’s expectation of privacy in the wallet or the bedroom would ignore the fact that the officers had to intrude into the home itself in order to get to the bedroom and wallet. If appellant had a reasonable expectation that government officials would not enter the home absent the consent of another household member, then the trial court should not have foreclosed his challenge to the seizure of the wallet.

There was sufficient evidence in this case to establish appellant’s privacy interest in the house where he had stayed the past week, even assuming that appellant’s stay was temporary. See Brady v. State, 394 So.2d 1073, 1981 FLW 535 (Fla. 4th DCA 1981). The trial court’s failure to exclude the wallet and its contents must be considered to be harmless error, however, in light of the strong evidence of guilt, not the least of which were appellant’s inculpatory statements which were properly admitted.

In appellant’s third and last point on appeal, he argues the principles of double jeopardy require that appellant’s judgment and sentence on the charge of trespass of a structure must be vacated as that offense is a lesser offense of trespass of a structure while armed with a dangerous weapon. The State has conceded that the sentence in this regard may be improper and we hold that it is. See, e. g. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Where double jeopardy applies, the conviction as well as the sentence for the lesser offense must be vacated. State v. Pinder, 375 So.2d 836 (Fla.1979).

Accordingly, the judgment of the trial court is AFFIRMED except that the appellant’s judgment of guilt and sentence for trespass of a structure is REVERSED and VACATED.

ROBERT P. SMITH, C. J., and LARRY G. SMITH, J., concur.

      .The full text of the signed consent was as follows:
      STATE ATTORNEY’S OFFICE THIRD JUDICIAL CIRCUIT
      CONSENT FOR POLYGRAPH EXAMINATION
      I, Edward R. Shade DO HEREBY FREELY AND VOLUNTARILY SUBMIT TO A POLYGRAPH EXAMINATION TO BE ADMINISTERED BY BRANSON R. FISHER, JR., WHO HAS IDENTIFIED HIMSELF TO ME AS A POLYGRAPH EXAMINER, INVESTIGATOR FOR THE STATE ATTORNEY’S OFFICE, THIRD JUDICIAL CIRCUIT, LIVE OAK, FLORIDA.
      I HAVE BEEN FULLY AND FAIRLY ADVISED THAT:
      1. THIS EXAMINATION OR INTERVIEW CONCERNS rape complaint bv Edith Williams.
      2. I HAVE THE RIGHT TO REMAIN SILENT AND CANNOT BE FORCED OR COERCED IN ANY WAY OR MANNER TO SUBMIT TO THIS TEST OR BE REQUIRED TO ANSWER ANY QUESTIONS.
      3. THAT ANYTHING I DO OR SAY CAN BE USED IN EVIDENCE AGAINST ME IN A COURT OF LAW.
      4. THAT I HAVE A RIGHT TO AN ATTORNEY, EITHER RETAINED BY ME OR APPOINTED BY THE COURT IF I CANNOT
      AFFORD TO HIRE AN ATTORNEY, AND THAT I HAVE A RIGHT TO TALK TO SUCH ATTORNEY BEFORE SAYING ANYTHING OR TAKING THIS EXAMINATION, AND, FURTHER, THAT I HAVE A RIGHT TO HAVE THAT ATTORNEY PRESENT WITH ME DURING THIS EXAMINATION OR ANY INTERVIEW.
      5.IF I DECIDE TO ANSWER QUESTIONS NOW AND WAIVE MY RIGHTS TO FIRST TALK WITH AN ATTORNEY OR HAVE AN ATTORNEY PRESENT WITH ME DURING QUESTIONING, I WILL HAVE THE RIGHT TO STOP ANSWERING AT ANY TIME UNTIL I TALK TO A LAWYER.
      BEING FULLY AWARE OF AN UNDERSTANDING WHAT MY RIGHTS ARE, I KNOWINGLY ÁND VOLUNTARILY WAIVE MY FOREGOING RIGHTS AND HEREBY CONSENT AND AGREE TO THIS EXAMINATION. ABSOLUTELY NO THREATS, PROMISES OR INDUCEMENTS OF ANY KIND HAVE BEEN MADE OR OFFERED TO ME.
      SIGNED /s/ Edward Shade
      WITNESS: /s/ Branson Fisher. Jr.
      WITNESS:_
      DATE: 11-21-79
      TIME: 10:31 AM
      PLACE: SAP LIVE OAK

      . Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

      . The trial judge expressly declined to rule on the issue of consent, and since there is conflicting testimony which would require weighing the credibility of witnesses, the circuit court is the more appropriate forum for determination of that issue. For this reason, our analysis of the legitimacy of the search assumes that no consent was given.


text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Cecelia C. HIATT, et al., Appellees.
    No. WW-348.
    District Court of Appeal of Florida, First District.
    July 10, 1981.

      El win R. Thrasher, Jr., Tallahassee, for appellant.
    Michael F. Coppins of Douglass, Davey & Cooper, Tallahassee, for appellees.
   PER CURIAM.

Republic National Life Insurance Company (Republic) appeals the partial summary judgment entered in favor of Hiatt, et al. (Hiatt), in their class action declaratory judgment suit which sought to have paragraph B(2) of Republic's medical expense benefits policy declared ineffective and unenforceable. We affirm.

Republic issued a group conversion medical expense benefits policy to Hiatt which provided that the company would pay 80% of all covered medical expenses which exceeded the deductible amount specified on the policy schedule. Paragraph B of the policy provided in pertinent part:

B. DEDUCTIBLE AMOUNT
The Deductible Amount for each calendar year will be the greater of:
1. The Cash Deductible Amount of Covered Medical Expenses as shown on Policy Schedule; or
2. The amount or value of any benefits provided on an expense incurred basis with respect to Covered Medical Expenses by any other hospital, surgical or medical insurance policy or any other benefit provisions of this policy, or by any hospital or medical service subscriber contract or by any medical practice or other prepayment plan, or by any other plan or program whether on an insured or uninsured basis whether voluntary or required by statute.

Hiatt asserted that paragraph B(2) was unenforceable because this provision rendered the policy “excess insurance” within the purview of Section 627.635, Florida Statutes (1975) and since the policy did not comply with Section 627.635(2), the excess insurance provision was void.

We agree with the trial court’s determination that the deductible provision, paragraph B(2), is an excess insurance provision as defined in Section 627.635(1) because its effect is to limit the insurer’s liability to only those covered medical expenses which exceed the benefits payable under other insurance policies. Since the policy, containing the excess insurance provision, was not conspicuously imprinted or stamped with the designation “excess insurance” or appropriate words of similar import as required by Section 627.635(2), the trial court properly concluded that the excess insurance provision, paragraph B(2), was ineffective and unenforceable. The obvious purpose of Section 627.635(2) is to assure that the policyholder is clearly made aware that the policy he has purchased contains an excess insurance provision and is thus given notice of his true coverage. It has generally been held that where such statutes are violated, the violative provision should be given no effect and the policy interpreted as if it did not contain the violative provisions. Annot., 36 A.L.R.3d 464 (1971).

Accordingly, the partial summary judgment entered in favor of Hiatt is AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and McCORD and ERVIN, JJ., concur.

      . 627.635 Excess insurance.—
      (1) No provision of this chapter shall be deemed to prohibit an insurer from issuing a policy as, or including in a policy a provision providing for, excess insurance; that is, to the effect that the insurer’s liability for benefits payable on account of expense incurred for any hospitalization, medical, surgical and other service resulting from covered sickness or injury of the insured, shall be limited to that part of such expense, if any, which is in excess of all benefits payable on account thereof by the same insurer under any other policy or policies covering the same insured and by all other insurers and service organizations by whom benefits are payable as to the same such expense.
      (2) Any such policy, or any policy containing any such provision, shall have imprinted or stamped conspicuously upon the face thereof the designation “excess insurance” or appropriate words of similar import approved by the department.