author: OVERTON, Justice.

text:
    Terry MEADE, Petitioner, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent.
    No. 61418.
    Supreme Court of Florida.
    Dec. 9, 1982.

      Seymour H. Rowland, Jr., and Victor J. Musleh of Musleh, Piccin, Atkins & Krehl, Ocala, for petitioner.
    Leslie King O’Neal of Markel, Scott, McDonough & O’Neal, Orlando, for respondent.
   OVERTON, Justice.

The petitioner, Terry Meade, seeks review of the decision of the Fifth District Court of Appeal reported as Lumbermens Mutual Casualty Co. v. Meade, 404 So.2d 1141 (Fla. 5th DCA 1981), which we find expressly conflicts with Travelers Insurance Co. v. Allen, 356 So.2d 1287 (Fla. 3d DCA), cert. denied, 364 So.2d 893 (Fla.1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue is whether, in an arbitration confirmation action filed in circuit court, an insurer may allege as a defense that the arbitration award exceeded applicable policy limits under circumstances where (1) the policy limits were not in issue in the arbitration and (2) the award was not challenged by the insurer within the ninety-day time limit prescribed by the Florida Arbitration Code, sections 682.13 and 682.-14, Florida Statutes (1979). We hold that the policy limits could properly be raised as a defense in the circuit court confirmation action.

We find it necessary to set forth certain relevant facts to clearly delineate the issue decided in this case. Petitioner Meade and respondent insurer disagreed as to the amount of Meade’s damages in a claim under his uninsured motorist coverage. The parties submitted the damages issue to arbitration, pursuant to chapter 682, Florida Statutes (1979). The arbitration panel award, issued December 27, 1979, found that Meade’s damages were “$16,709.50 plus taxable costs.” In January, 1980, the insurer tendered a check for $10,000, the policy limits, which Meade refused to accept. No further action was taken by either party until Meade filed a complaint in circuit court on April 2, 1980, seeking confirmation of the arbitration award. The insurer attempted to assert as a defense in the confirmation suit the $10,000 policy limit on Meade’s uninsured motorist coverage, arguing that the arbitration award could not exceed that amount. The trial court, in enforcing the arbitration award in Meade’s favor, refused to consider the policy-limits defense because the insurance company had failed to seek vacation or modification of the arbitration award within the ninety-day period prescribed by sections 682.13 and 682.14. In so holding, the trial court relied on Travelers Insurance Co. v. Allen, which held that a party to an arbitration proceeding who fails to timely seek vacation or modification of an award pursuant to sections 682.13 and 682.14 cannot raise the defense of excessive award in a confirmation suit.

The district court reversed, holding that the ninety-day rule contained in sections 682.13 and 682.14 is not applicable where an issue disputed in a confirmation proceeding was not submitted to an arbitration panel. In so holding, the district court distinguished Allen, finding it was not applicable under the facts of this case. We approve the decision of the district court, but find that Allen is not distinguishable from this case.

Petitioner contends that sections 682.13 and 682.14 require the insurer to file a motion to vacate, modify, or correct the arbitration award of damages within ninety days when the amount of damages awarded exceeds policy limits. Petitioner argues that any disagreement as to applicable policy limits is not relevant to a determination of whether the insurer was required to raise its objections to the arbitration award in a motion to vacate or modify the award. In Allen, the amount of damages was established by arbitrators, and, although the applicable policy limits were in dispute, the issue of the policy limits was not submitted to arbitration by the parties. We find that under those facts Allen is not distinguishable from the instant case and that it supports the position asserted by petitioner. We, however, reject this view, finding that it would improperly expand the intent and purpose of the arbitration code.

We hold that the grounds for seeking vacation or modification of an arbitration award, as set out in sections 682.13 and 682.14, limit the applicability of the ninety-day rule to issues submitted to an arbitration panel. The sole issue before the arbitrators was the amount of damages sustained by Meade. Since the policy limits were not before the arbitration panel in this case, the insurer was not precluded from raising the defense of the policy limits in the confirmation proceeding filed by petitioner. For the reasons expressed, we approve the decision of the district court in the instant case, and disapprove the decision of the Third District Court of Appeal in Travelers Insurance Co. v. Allen.

It is so ordered.

ALDERMAN, C.J., and BOYD, MCDONALD and EHRLICH, JJ., concur.

ADKINS, J., dissents.


source: Caselaw Access Project

author: HENDRY, Judge. PER CURIAM.

license: Public Domain

text:
    TRIANON PARK CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Appellant, v. CITY OF HIALEAH, a Municipal corporation, Appellee. CITY OF HIALEAH, etc., Appellant, v. TRIANON PARK CONDOMINIUM ASSOCIATION, INC., etc., Appellee.
    Nos. 81-1626, 81-1634.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 1982.
    On Rehearing Jan. 11, 1983.
    Becker, Poliakoff & Streitfeld and Alan E. Tannenbaum, Fort Lauderdale, for appellant/appellee, Trianon Park Condominium Ass’n, Inc.
    Ralph F. Miles, Robert J. Stampfl, Hialeah, Claudia B. Greenberg and Richard H.W. Maloy, Coral Gables, Holland & Knight and Chesterfield Smith and Marty Steinberg and Andrea Simonton, Miami, for appellee/appellant, City of Hialeah.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   HENDRY, Judge.

These consolidated appeals arise from a final judgment entered upon a jury verdict in favor of the Condominium Association (Association), plaintiff below, in a negligence action against the City of Hialeah (City) for acts and omissions relating to inspection and certification of construction of the condominium building.

A pretrial stipulation between the Association and the City set forth the following agreed facts: the City of Hialeah adopted the South Florida Building Code (Code) in 1958; the Association is a non-profit corporation created to operate the condominium comprised of sixty-five units; the original developer of the condominium applied for a building permit in 1972 and the City later approved the application in the name of a new developer; work on the original plans was abandoned; in November, 1975, Flagship National Bank succeeded in interest as the owner of the condominium; revised plans dated August, 1975, were submitted and construction was re-started in November, 1975, and continued until July, 1976, during which time City’s building inspectors made mandatory inspections required by Code; in July, 1976, the City issued a certificate of occupancy, and in April, 1979, after a rainstorm, the roof of the building fell in resulting in damage to the interiors of forty-nine units; the City was given notice of the existence of certain construction defects and deficiencies.

The Association filed a complaint in 1979, alleging three counts against Flagship for breach of warranty, negligence and strict liability, and one count against the City for negligence in the “operational” function of approving plans, inspecting construction for compliance with plans and with the Code, and issuing the certificate of occupancy. Prior to trial, the Association settled with Flagship for $153,000. The court approved the settlement and certified the unit owners as a class under Florida Rule of Civil Procedure 1.220, for purposes of maintaining a class action.

At trial, the Association presented evidence of damages, including roof defects, structural flaws in unit entrance alcoves, excessive combustibility of exterior walls, deficient fire resistivity of separation between garage and living units, defective expansion joint construction, a combustible roof hatch and other significant defects and deficiencies in construction. Further evidence was presented showing that each of the defects for which damage was claimed was in violation of the Code and/or building plans. Evidence was also presented regarding the purposes and requirements of the Code and duties of building officials thereunder. Proof of negligence related to the City’s failure to properly enforce Code requirements regarding the above-listed construction defects and others, and allowing deviations from building plans.

The jury returned a verdict for the Association in the amount of $290,938.84, against which the trial court set off $153,-000 for the Flagship settlement. Judgment was then entered pursuant to section 768.-28, Florida Statutes (1975), v/hich provides for the waiver of sovereign immunity by the state, its agencies and subdivisions in tort actions, and the remaining sum of $137,938.84 was reduced to $50,000 in accordance with section 768.28(5). The City appeals the final judgment of liability and the Association, in turn, appeals reduction of the judgment to $50,000.

The City’s appeal addresses the issue of the scope of sovereign immunity of a municipality. The City’s primary contention is that the acts or omissions alleged in the complaint are “planning” functions for which it is immune from tort liability.'

In the landmark case, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), the Florida Supreme Court analyzed the extent to which section 768.28, Florida Statutes (1975) eliminated sovereign immunity for governmental entities. Despite the lack of an express exception in the statute, the court concluded that certain planning or policy making governmental functions, unlike purely operational functions, could not be the subject of traditional tort liability. The Court approved a case-by-case analysis to distinguish between the “planning” and “operational” levels of decision-making by government agencies, and set forth a four-pronged test for determining which category a particular act or decision fell into:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective?
(2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective?
(3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved?
(4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to make the challenged act, omission, or decision? .. .

Commercial Carrier Corp. v. Indian River County, supra, at 1019. If all four questions are answered in the affirmative the act may be classified as a discretionary planning-level function and non-tortious. Where one or more questions call for a negative answer, however, further inquiry may be necessary.

Application of the above test to the instant case reveals that questions (1) and (4) can easily be answered in the affirmative. The act of inspection and certification of city buildings is a basic governmental policy which the City has the lawful authority to undertake pursuant to ordinance. We find, however, that the City’s actions do not satisfy the second and third elements of the test. Inspections, plan reviews and certification for this particular condominium did not change the overall direction or policy of the general program of building inspection in the city. See Bellavance v. State, 390 So.2d 422 (Fla. 1st DCA 1980), petition for review denied, 399 So.2d 1145 (Fla.1981). Similarly, we find that the City’s enforcement of the established Code standards is a purely ministerial action which does not rise to the status of basic policy evaluation since the majority of the inspectors’ acts involve simple measurement and enforcement of the building code as written rather than the exercise of discretion and expertise. See Jones v. City of Longwood, Florida, 404 So.2d 1083 (Fla. 5th DCA 1981).

Although the initial determination by the City to inspect and certify construction within its boundaries is a “planning” decision, the subsequent performance of inspection, plan review and certification is clearly an “operational” level activity implementing that policy. Once the City undertook to inspect, review and certify construction, it was obligated to do so reasonably and responsibly in accordance with acceptable standards of care: “[Ijmmunity of a government for negligently performing an act no longer exists, even though the initial decision to act may have been purely discretionary, and not compelled in any way.” Collom v. City of St. Petersburg, 400 So.2d 507, 508 (Fla. 2d DCA 1981) (emphasis in original). Consequently, the City’s inspection and certification of buildings within its borders is an operational level activity, for which it may be subject to tort liability under section 768.28, Florida Statutes. We have also carefully considered the City’s remaining points and find them to be without merit.

We now turn to the sole issue raised on appeal by the Association. The Association argues that as representative of the class of sixty-five persons (unit owners) it was entitled to entry of the $100,000 “per incident” level of recovery under section 768.28(5), rather than the $50,000 “per person” level of recovery.

Section 768.28(5), Florida Statutes (1975), provides in pertinent part:

(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000, or any claim or judgment, or portions thereof, which when totaled with all other claims or judgments paid by the state arising out of the same incident or occurrence, exceeds the sum of $100,000.... (emphasis supplied)

Essentially, the Association argues that members of a plaintiff class in a class action should be considered separate persons for purposes of determining the extent of a municipality’s liability to pay a judgment under section 768.28(5), Florida Statutes.

Although this precise issue appears to be one of first impression in this state, we agree with the Association that the “per incident” level of recovery rather than the “per person” level should apply. As the Association points out, each unit owner was individually damaged by the City’s negligence and could have maintained an independent action against the City, in which case the City would have been liable up to the “per incident” level of judgment for the total aggregate of the claims. See generally Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188 (1942); Rumbough v. City of Tampa, 403 So.2d 1139 (Fla. 2d DCA 1981) (city’s payment of $100,000 to surrounding residents in settlement of claims and lawsuits for damages caused by city’s operation of a sanitary landfill, constituting a single act or occurrence under section 768.28(5), extinguished city’s liability).

In summary, we hold that the City’s building inspection and certification activities are operational functions, the negligent performance of which made it liable in tort. We also hold that the trial court erred in reducing the final judgment to $50,000 rather than $100,000 under section 768.-28(5), Florida Statutes (1975).

Accordingly, we affirm the judgment below insofar as it found the City liable for negligence in inspecting and certifying the condominium, but reverse the amount of the judgment and remand to the trial court with instructions to enter a final judgment in favor of the Association in the amount of $100,000.

Affirmed in part, reversed in part, remanded with instructions.

Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.

ON MOTION FOR REHEARING

PER CURIAM.

Counsel for appellee/appellant City of Hialeah having filed in this cause a motion for rehearing and suggestion of certification, and same having been considered by the court which determined the cause, it is ordered that the motion for rehearing be and it is hereby denied. We adhere to our original opinion as issued; however, we grant in part the suggestion for certification and certify to the Florida Supreme Court the following question of great public importance:

Whether, under Section 768.28, Florida Statutes (1975), as construed in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), a municipality retains its sovereign immunity from a suit predicating liability solely upon the allegedly negligent inspection of a building, where that municipality played no part in the actual construction of the building.

      . Now Fla.R.Civ.P. 1.221.

      . See White v. County of Palm Beach, 404 So.2d 123 (Fla. 4th DCA 1981) (decision to build new jail is planning activity; actual functioning of jail is operational activity for which tort liability may attach); Mathews v. City of St. Petersburg, 400 So.2d 841 (Fla. 2d DCA 1981) (decision to alter natural state of creek through park planning function; actual alteration operational function); Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981) (decision to alleviate storm drainage problem planning function; design, installation and maintenance of storm sewer is operational function); Hollis v. School Board of Leon County, 384 So.2d 661 (Fla. 1st DCA 1980) (decision to train school bus drivers and inspect school buses planning function; actual training and inspection operational functions); Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 759 (Fla.1980) (decision to install median strip on causeway planning function; actual design and installation operational activity); compare Elliott v. City of Hollywood, 399 So.2d 507 (Fla. 4th DCA 1981) (decision not to enforce ordinance preventing homeowners from growing bushes which interfere with vision of motorists basic governmental policy); Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980) (decision not to provide park supervision at night planning decision); Ellmer v. City of St. Petersburg, 378 So.2d 825 (Fla. 2d DCA 1979) (decision to remove police from potential riot area planning decision); Weston v. State, 373 So.2d 701 (Fla. 1st DCA 1979) (state attorney’s advice to grand jury with respect to whether indictment could be brought against person under certain statute qualified as a discretionary governmental function).

      . In 1981 the Legislature increased the amount recoverable against the state, a county, or a municipality to $100,000 per person and $200,-000 per incident. See ch. 81-317, Laws of Fla.


author:
      MELVIN, WOODROW M. (Ret.), Associate Judge.
      DANIEL S. PEARSON, Judge,

text:
    NATIONAL CAR RENTAL SYSTEM, INC., and Travelers Indemnity Co., Appellants, v. Marvin BOSTIC, Appellee.
    No. 81-2130.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rehearing Denied Jan. 12, 1983.
    Adams, Ward, Hunter, Angones & Adams and John McClure, Miami, for appellants.
    Kaplan, Sicking, Hessen, Sugarman, Ro-senthal & DeCastro; Joel V. Lumer, Miami, for appellee.
    Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   MELVIN, WOODROW M. (Ret.), Associate Judge.

The case sub judice arose out of an automobile accident wherein an automobile [owned by the defendant, National Car Rental System, Inc., and insured by the defendant, Travelers Indemnity Company] while being driven by one Laverne Jackson, crossed the centerline of the road and crashed head-on with Marvin Bostic’s vehicle which was being driven in the opposite direction. Marvin Bostic suffered fractured ribs, a contused lung and a cervical and low back sprain as a result of the accident. His mother, a passenger in Bostic’s vehicle, died at the scene as a result of her injuries. When the impact occurred, Bostic lost consciousness for 3 or 4 minutes. Upon awakening he heard his mother moaning and saw her bleeding face. She asked Bostic to render her assistance which Bostic was unable to do because of the nature of his own injuries. Despite her pleas he could do nothing to comfort her, prior to her death. Bostic’s physical injuries healed leaving a minimal disability of about 5%. However, he suffered, and still suffers, a severe emotional problem stemming from his inability to do anything to help or save his mother. As a result thereof, Bostic filed suit against Jackson, National Car Rental System, Inc., and Travelers Indemnity Company seeking damages for both his physical and psychological injuries. Prior to trial the defendants moved to exclude from the jury, evidence relating to Bostic’s emotional disturbance caused by being present and witnessing his mother’s death at the scene and to prevent pictures of the deceased from being introduced into evidence. The motion was denied. National and Travelers also moved to amend their answer to file an additional affirmative defense of non-liability alleging that subsequent to filing their answer they found out that one John Spaulding [the person who originally rented the car] had obtained the car by fraudulent means [to wit: an altered credit card] and the car was in fact a stolen vehicle which was being driven without valid consent. That motion was also denied. At the beginning of the trial National and Travelers unsuccessfully renewed both of these motions. The cause proceeded to trial. At the conclusion of the second day the trial judge in excusing the jury stated:

“This is a very serious case. I think tomorrow we can wrap it up as early as possible.”

The following morning National moved for a mistrial on the basis of the judge’s statement and on the basis that the evidence relating to the emotional sufferings of Bostic and the photographs of Bostic’s mother were prejudicial to its cause and should not have been admitted. The motion was denied. At the conclusion of all the evidence, the trial court granted Bostic’s motion for directed verdict as to negligence; proof of consent to operate National’s car; and the issue of compliance with the minimal requirements of the Florida No-Fault Statute. Closing argument followed at which counsel for Bostic made the following comments:

Now, that is just physically. They are all trying to sell you a bill of goods. While the executives at Travelers, none of whom you see here, sit in their ivory towers, puffing on their cigars in their multimillion dollar buildings, they say, “Just let them try it.”

MR. McCLURE: Objection. It is inflammatory.

THE COURT: Overruled.

MR. HESSEN: “Bring them all the way. If they give it to him, we’ll pay it.”

I submit to you they should pay it. They should pay every penny of it. They should. God knows, they should.

Compare the horror. He gets up here, their hired gun, their man.

I would just say to Mr. McClure — and I say, “If the shoe is on the other foot, would you wear it?”

Thereupon the plaintiff rested, the jury was charged and a verdict was returned in Bostic’s favor in the amount of $180,000.00. This appeal is taken from the judgment entered pursuant to that verdict.

The appellants, National Car Rental System, Inc. and Travelers Indemnity Company have raised four points on appeal. First, they contend it was error to allow the plaintiff to present testimony of his emotional pain and suffering caused by his being present when his mother was killed in the accident when said evidence was inadmissible under the impact rule enunciated in Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA 1981); and Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1972). Rev. 291 So.2d 593 (Fla.1974). We have no quarrel with the aforementioned impact rule; but rather find that the instant case falls clearly within that rule. The evidence showed that Bostic’s emotional problem was caused by his inability to render aid and comfort to his mother because of the injuries and impact suffered by Bostic which had rendered him physically unable to come to her aid. Therefore, we find no error in permitting into evidence testimony of Bostic’s mental pain and suffering caused by his being present when his mother was killed. See Gellert v. Eastern Airlines, Inc., 370 So.2d 802 (Fla. 3d DCA 1979); Gilliam v. Stewart, 291 So.2d 593.

Secondly the appellants contend the trial court erred in refusing to allow them to amend their affirmative defenses prior to trial and to assert at trial the defense of lack of consent to drive the car. We find this point to be without merit. See Tillman Chevrolet Company v. Moore, 175 So.2d 794 (Fla. 1st DCA 1965); Susco Car Rental System of Florida v. Leonard, 112 So.2d 832 (Fla.1959).

The appellants in their third point challenge the propriety of directing a verdict in favor of Bostic on the issues of liability, comparative negligence and no-fault threshold. Where the evidence is not in conflict and there is no evidence adduced that could in law support a verdict for the non-moving party the trial court can and should direct a verdict in favor of the mov-ant. Whetzel v. Metropolitan Life Insurance Company, 266 So.2d 89 (Fla. 4th DCA 1972); Garris v. Robeison, 146 So.2d 388 (Fla. 2d DCA 1962). A review of the properly admitted and unrebutted testimony resolves, beyond any question of a doubt, the issues of liability and no-fault threshold in favor of Bostic. Therefore, the trial court was correct in entering the directed verdict as to these issues. The issue of comparative negligence was also properly determined in Bostic’s favor. See Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978).

Finally, the appellants allege prejudicial error based upon the comment of the trial judge to the jury pertaining to the importance of the case and the comments of Bostic’s counsel made at the conclusion of his closing argument. While we find no merit in the allegation as to the judge’s comment, we do find that the comments of counsel during closing argument constituted an erroneous “golden rule” argument. Whether through overzealousness or otherwise, Bostic’s counsel in his argument regarding the conduct of executives of Travelers was bordering upon an appeal to the passions or prejudice of the jury. This comment standing alone may or may not constitute reversible error, which we do not herein decide, but, when he stated, “... and I say, If the shoe is on the other foot, would you wear it?”, he stepped across the line improperly invoking the proposition of the jury putting themselves in the place of the plaintiff. To do so constituted reversible error. See Klein v. Herring, 347 So.2d 681 (Fla.3d DCA 1977); Magid v. Mozo, 135 So.2d 772 (Fla. 1st DCA 1962); Bullock v. Branch, 130 So.2d 74 (Fla. 1st DCA 1961).

In view of the foregoing, we affirm the trial court’s orders denying the appellant’s motion to exclude testimony relating to emotional disturbance caused by being present and witnessing his mother’s death and the motion to add an affirmative defense. We also affirm the order granting Bostic’s motion for directed verdict on the issues of liability, comparative negligence and the no-fault threshold. However, we reverse the judgment appealed for violation of the “golden rule” argument and remand the cause for a new trial on the issue of damages only.

Affirmed in part, reversed in part and remanded with directions.

DANIEL S. PEARSON, Judge,

concurring specially.

Because Mr. Bostic’s mental distress can be said to have been caused by his own injury which rendered him unable to respond to his mother’s cry for help, we are able in this case to avoid the impact of the impact rule which otherwise would have prevented Bostic from recovering damages for his emotional scars caused by watching his mother die beside him in the car. Since the impact rule does not bar recovery under the facts of this case, I see no need for the majority to express the view that “we have no quarrel with the aforementioned impact rule.” But because the majority by this dicta endorses the impact rule, I am impelled, although recognizing that I am bound to follow the rule, see Gilliam v. Stewart, 291 So.2d 593 (Fla.1974), to state my view that I do have a quarrel with it. I think that the reasons for the rule have been thoroughly repudiated and that the rule should be abolished and replaced, as it has been in other jurisdictions, by some more enlightened rule. See, e.g., Culbert v. Sampson’s Supermarket, Inc., Me., 444 A.2d 433 (1982); Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978); Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.1978); Hunsley v. Giard, 87 Wash.2d 424, 553 P.2d 1096 (1976); D’Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975); Leong v. Takasaki, 55 Hawaii 398, 520 P.2d 758 (1974); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973); D’Amicol v. Alvarez Shipping Co., Inc., 31 Conn.Supp. 164, 326 A.2d 129 (1973); Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D.1972); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316 (1968); Resavage v. Davies, 199 Md. 479, 86 A.2d 879 (1952); Restatement (Second) of Torts §§ 313, 436. I heartily concur in the remainder of the majority opinion.


author: PER CURIAM.

text:
    Joseph Theodore JENKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2174.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Rehearing Denied Jan. 12, 1983.

      Bennett H. Brummer, Public Defender, and Louis R. Beller, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY and NESBITT, JJ., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge.
   PER CURIAM.

Appellant, Joseph Theodore Jenkins, and co-defendant, Lorenzo Marshall, were charged in a four count information with: kidnapping; armed robbery; sexual battery with the use of a firearm; and possession of a firearm during the commission of a felony-

Appellant was convicted and sentenced upon all counts pursuant to guilty verdicts by the jury.

Appellant urges reversal of his convictions on the grounds that the trial court erred in failing to grant his motion to suppress the victim’s fingerprints which were lifted from the trunk of the impounded automobile used by appellant in the commission of the crimes charged. The other ground urged is that the trial court erred in failing to suppress a statement made by appellant which acknowledged that he had engaged in sexual intercourse with the victim.

Appellant, in the instant case, has the burden of showing that the trial proceedings were so infected with prejudicial error as to compel a reversal of the judgment appealed. Such error must be clearly demonstrated by the appellant.

We have carefully considered the entire record, all points raised in the briefs, and argument of counsel, in the light of the controlling principles of law and have concluded that no reversible error has been demonstrated. The jury was fully supported in its verdicts by ample evidence, and the trial court’s rulings on the motions to suppress the fingerprints taken from the properly impounded vehicle, searched as an instrumentality of the crime, State v. Pacitti, 383 So.2d 977 (Fla. 4th DCA 1980); State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1975), and appellant’s statement acknowledging sexual intercourse with the victim, see Barnason v. State, 371 So.2d 680 (Fla. 3d DCA 1979), cert. denied, 381 So.2d 764 (Fla.1980); DeCastro v. State, 359 So.2d 551 (Fla. 3d DCA 1978), were in accord with the controlling principles of law.

No error has been demonstrated which injuriously affected any substantial or constitutional rights of the appellant. Therefore, we affirm. Section 924.33, Florida Statutes (1981); Olsen v. State, 338 So.2d 225 (Fla. 3d DCA 1976); State v. Sanders, 266 So.2d 79 (Fla. 4th DCA), cert. denied, 269 So.2d 370 (Fla.1972).

Affirmed.

      . Marshall is not a party to this appeal.

      . The statement was made after he had been given his “Miranda rights.”


text:
    Clemente HERNANDEZ, Appellant, v. NATIONAL BANK OF FLORIDA, a national banking association, f/k/a Boulevard National Bank of Miami, Appellee.
    No. 81-1381.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Taylor, Brion, Buker & Greene and Ar-noldo Velez, Miami, for appellant.
    Levine, Reckson, Reed & Geiger and Mark A. Marder, Miami, for appellee.
    Before HENDRY and SCHWARTZ, JJ„ and WILLIAM C. OWEN, Jr., (Ret.), Associate Judge.
   PER CURIAM.

The trial court abused its discretion in denying, without an evidentiary hearing, the motion to vacate and set aside the final judgment entered after default. Travelers Insurance Co. v. Davis, 371 So.2d 702 (Fla. 3d DCA 1979); Flynt v. Flynt, 336 So.2d 690 (Fla. 4th DCA 1976); Patricia Russell Designs, Inc. v. Gans, 277 So.2d 801 (Fla. 3d DCA 1973). See generally Upshaw v. Dade County, 247 So.2d 337 (Fla. 3d DCA 1971). Accordingly, the order appealed from is reversed and the cause remanded to the court below with directions to hold an evidentiary hearing to determine the validity of service of process upon the appellee.


text:
    Matthew David FLETCHER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-278.
    District Court of Appeal of Florida, Third District.
    Nov. 2, 1982.
    Bennett H. Brummer, Public Defender and Randy S. Maultasch, Sp. Asst. Public Defender and John Lipinski, Miami, Co-counsel, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Collins v. State, 381 So.2d 328 (Fla. 5th DCA 1980).


text:
    Gerard J. SCHAEFFER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-268.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.
    Rehearing Denied Jan. 19, 1983.
    Michael H. Tarkoff of Flynn, Rubio & Tarkoff, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals the denial of a 3.850 motion. The issue presented is exactly the issue addressed by this Court in the prior affirmance of defendant’s murder convictions. See Schaefer v. State, 311 So.2d 137 (Fla. 4th DCA 1975), cert. denied Schaefer v. State, 327 So.2d 34 (Fla.1976). This Court is bound by its own prior express decision on this point of law. Our Supreme Court denied review without opinion, and we conclude that there has been no change since then in decisional law requiring or allowing us to revisit this issue.

AFFIRMED.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: DANIEL S. PEARSON, Judge.

text:
    AIRBORNE FREIGHT CORPORATION, Appellant, v. FLEMING INTERNATIONAL AIRWAYS, INC., Appellee.
    No. 82-313.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 1982.
    Rehearing Denied Jan. 12, 1983.
    Paul & Thomson and Jon W. Zeder and Richard J. Ovelmen and Charles V. Sena-tore. Miami, for appellant.
    Stephen Lubow, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON, and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Airborne Freight Corporation is a nationwide company which ships air freight for overnight delivery. In conducting its business, Airborne relies substantially on excess space available in the cargo holds of scheduled commercial airline flights. When in 1979 the operations of United Airlines, one of the commercial carriers regularly utilized by Airborne, were temporarily halted by a machinists’ strike, Airborne was forced to secure substitute cargo space to meet its needs. It turned to Fleming International Airways, Inc., a company which operated a fleet of four aircraft to carry air freight on a charter basis for various customers.

Representatives of Airborne and Fleming entered into a charter agreement, the substance of which is found in a series of telephonic communications followed by two confirming and clarifying telexes. On May 19, 1979, after Fleming’s services had been utilized for approximately six weeks, Airborne terminated the charter and this dispute arose. Fleming claimed that the agreement provided that (1) Airborne could not terminate until the United Airlines machinists’ strike was settled, which, according to Fleming, meant ratification by rank and file union members of the settlement between management and union officials, which did not occur until a week after Airborne’s termination; (2) Airborne was to pay $750 per stop for the ground service costs involved in the handling, loading and unloading of the cargo; (3) Airborne was to pay for the cost of “repositioning” Fleming’s aircraft, that is, the cost of placing the aircraft at the site where the charter began. Airborne countered that the agreement between the leaders of union and management settled the strike and allowed it to then terminate the charter with Fleming, that only actual ground service costs were to be paid to Fleming, and that there was no agreement whatever to pay for repositioning.

Fleming sued, seeking, inter alia, lost profits due to Airborne’s early termination of the charter, the difference between $750 per stop and the actual ground service costs, and the repositioning costs of the aircraft. The trial court, hearing the case without a jury, found for Fleming on these claims, reduced the total amount by miscellaneous credits due Airborne, and entered judgment for Fleming in the amount of $122,672.44, plus prejudgment interest of $18,707.56 at the statutory rate of six per cent for the entire amount of the judgment. Airborne appeals from the judgment, and Fleming cross-appeals from the trial court’s refusal to award damages for its cost of borrowing money at the prime lending rate. We affirm in part and reverse in part.

We find no error in the trial court’s finding that Airborne agreed to pay Fleming $750 per stop for ground service costs. As to this item, the evidence was in conflict. While it may be, as Airborne contends, that the sole evidence that $750 per stop was intended to be the fee paid Fleming for ground services was the uncorroborated testimony of Robert Fleming that there was an oral agreement under which Airborne was to pay only actual costs during the term of the charter, with the balance (the difference between $750 and the actual costs) to be paid upon its completion, that testimony, even if inconsistent with other conduct of Fleming International, and even if contradicted, was sufficient to permit the trial judge to find as he did. Mason v. Martino, 336 So.2d 396 (Fla. 3d DCA 1976). While we might not have made the same finding were we the trier of fact, we cannot substitute our judgment for his. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Atkins v. Keller, 400 So.2d 168 (Fla. 3d DCA 1981).

As to the other damage awards to Fleming, we are of another view. The award to Fleming of $44,710 for lost profits incurred because of the early termination of the charter agreement stands or falls on the trial court’s finding that Airborne could not terminate the agreement until the settlement of the machinists’ strike was ratified by the rank and file union members. The agreement itself, by everyone’s account, permitted Airborne to terminate when the strike was “settled.” The only participant in the charter negotiations who testified at trial stated that the understanding was that settlement referred to settlement between the representatives of the union and management. In this instance, the contrary testimony of Robert Fleming, who did not negotiate the charter and was not privy to what the parties intended, could not be received as parol evidence shedding light on the meaning of “settlement,” because his testimony was incompetent to prove that settlement meant ratification by rank and file union members. Gainesville Bonded Warehouse v. Carter, 123 So.2d 336 (Fla.1960); King v. United States, 641 F.2d 253 (5th Cir.1981); § 90.604, Fla.Stat. (1981) (lack of personal knowledge). Thus, in this instance, there was no competent evidence to support the trial court’s finding that Airborne terminated the agreement prematurely and therefore no support for any award of lost profits. Commercial Bank of Kendall v. Costley, 324 So.2d 182 (Fla. 3d DCA 1975).

The trial court also awarded Fleming $10,806.56 for “repositioning” of the aircraft because the charter agreement was “prematurely terminated.” To the extent that this award was dependent on the finding of premature termination, the award was unjustified for the reasons already stated. But there is yet another and more basic reason why these costs were not recoverable — that is, that Fleming undertook to pay all costs and fees other than those for which Airborne obligated itself, and it is undisputed that Airborne did not obligate itself to pay for “repositioning.”

Finally, we find Fleming’s cross-appeal to be utterly without merit.

Accordingly, we affirm the trial court’s award to Fleming of $54,088.66 for ground services; we reverse all other awards made in favor of Fleming and remand the case to the trial court for the purpose of recalculating the prejudgment interest and entering judgment in accordance with this opinion.

Affirmed in part; reversed in part.

      . Our conclusion that there was no premature termination which would support an award for lost profits makes it unnecessary for us to separately address Airborne’s contentions that (1) Fleming’s showing of lost profits was insufficient, see International Equipment Co. v. Town Sandwich Shop, Inc., 369 So.2d 955 (Fla. 3d DCA 1978) (holding that plaintiff has the duty to prove actual damages); and (2) prejudgment interest could not be awarded for lost profits which were unliquidated and which were capable of calculation only on the basis of conflicting evidence, see Broward County v. Sattler, 400 So.2d 1031 (Fla. 4th DCA 1981); Town of Longboat Key v. Carl E. Widell & Son, 362 So.2d 719 (Fla. 2d DCA 1978).


author: HERSEY, Judge.

text:
    Brad ECHOLS, Appellant/Cross-Appellee, v. The HAMMET COMPANY, INC., Appellee/Cross-Appellant, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 81-736.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Jan. 19, 1983.

      Larry Klein and Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant/cross-appellee.
    David F. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for appel-lee/cross-appellant The Hammet Co., Inc.
   HERSEY, Judge.

Appellant, injured in an automobile accident allegedly caused by a dangerous condition of the road, brought suit against appel-lee The Hammet Company, Inc. for negligent construction of the road and against the State of Florida Department of Transportation (D.O.T.) for negligent maintenance of the road. A settlement was reached between appellant and the D.O.T. and the matter proceeded to trial by jury on the remaining issues.

The jury found that the accident was caused by a combination of the negligence of all three parties apportioned as follows: appellant, 85%; Hammet, 8.3%; and the D.O.T., 6.7%. Damages were assessed at $1,700,000 and after reducing this by the amount attributable to appellant’s comparative negligence, final judgment was originally entered against both appellees in the amount of $255,000. Subsequently, however, the court entered separate orders: the first directed a verdict in favor of appellee, Hammet, in accordance with its previously filed motion; the second directed a verdict in favor of the D.O.T. on the same basis. The net result was no recovery for appellant. The main appeal attacks the directed verdict in favor of Hammet, which, in turn, cross-appeals the directed verdict in favor of the D.O.T.

The trial court apparently based its direction of a verdict for Hammet on the doctrine of Slavin v. Kay, 108 So.2d 462 (Fla.1959). We explained that doctrine in El Shorafa v. Ruprecht, 345 So.2d 763, 764 (Fla. 4th DCA 1977), as follows:

In Slavin v. Kay, 108 So.2d 462 (Fla.1959), the Supreme Court of Florida considered the respective liability of an owner and contractor for injuries to a third person for negligence of the contractor in the construction of the improvement. The court held that, if the offending defect was latent and unknown to the owner, the contractor remained liable, even after the project was completed and accepted by the owner. The rationale of that holding is that the contractor’s negligence is the proximate cause of the injury. The Slavin court held, however, that if the defect were patent or if the owner learned of it and did not rectify the condition then the owner’s negligence is the proximate cause of the injury rendering the owner liable and exonerating the contractor.

A case should be taken from the jury only where there is no evidence upon which reasonable men could disagree, that is, only where it is clear as a matter of law that one party or the other must prevail. Under the Slavin test Hammet could prevail as a matter of law only if there was no evidence that the condition of the road caused (or contributed to) the accident or, in the alternative, that whatever defect in the road caused the accident was a patent (rather than a latent) condition thereby placing the duty and thus the burden of observing and remedying that condition on the D.O.T.

Evidence at trial showed that either the material used or the method of constructing the shoulder resulted in a load bearing measurement considerably lower than that which would have been acceptable to the D.O.T.; however no tests were made at the time of construction so the defect went unobserved and uncorrected. There was also evidence that the shoulder of the road in the vicinity of the accident had become somewhat lower than the road bed. When appellant’s vehicle left the travelled portion of the roadbed its wheels were on the shoulder where this drop-off effect made it difficult to return the front wheel from the low shoulder to the higher road bed, thus causing or contributing to the cause of the accident. There was therefore some evidence that a defect in the road (the shoulder) was causally involved in this accident. The remaining inquiry is whether the defect was observable.

The evidence is conflicting and imprecise regarding: the differential between the level of the road and the shoulder at the point where appellant’s vehicle attempted to renegotiate the road; whether the D.O.T. had previously repaired the portion of the shoulder involved here; and whether the D.O.T. permitted grass to grow to a height obscuring the drop-off from the road to the shoulder in the area where the accident occurred. We do not attempt to exhaustively set out the evidence or to catalogue the permissable inferences that a jury might draw from that evidence. We conclude, however, that a jury question was presented as to whether the defective condition was observable or whether it was for one reason or another concealed. It was therefore reversible error to direct a verdict for appellee, Hammet. We would simply remand with instructions that the jury verdict and the final judgment be reinstated but for another error we discern.

That error resulted from the fact that the trial court prohibited Hammet from contending in final argument to the jury that the accident had been caused by negligent maintenance of the shoulder on the part of the D.O.T. Although the question of negligent maintenance had been included in the settlement between appellant and the D.O.T. this would not preclude Hammet from relying on negligent maintenance by the D.O.T. (as opposed to negligent construction by Hammet) as a defense. Disallowing that argument was error. The trial court also erred by refusing Hammet’s request for a Slavin doctrine instruction.

Because of the interrelationships of these errors which fatally infect the ultimate result, we are required to reverse and to remand this cause for a new trial on the issue of liability only. We find no error in the damage aspect of the case.

REVERSED and REMANDED for NEW TRIAL ON LIABILITY ONLY.

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


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Gerry BECKERMAN d/b/a Suncoast Tattoo Studio, Inc., Florida corporation, Appellant, v. CITY OF FORT LAUDERDALE, a municipal corporation, and Myles Taylor d/b/a Taylor’s Tattooing, Inc., a Florida corporation, Appellee.
    No. 82-501.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Jan. 5, 1983.

      Bob Zwicky of Fitzgerald, Taylor & Zwicky, Fort Lauderdale, for appellant.
    Donald R. Hall and T.J. Ansbro, Jr., Fort Lauderdale, for appellee, City.
   BERANEK, Judge.

The question presented in this case is exactly the same as in Piperato v. Zuelch, 395 So.2d 1231 (Fla. 3rd DCA 1981). Appellant suggests that the Third District Court of Appeal was in error in the Piperato decision and asks that we reach a contrary result. The statute in question provides as follows:

877.04 Tattooing prohibited; penalty.—
(1) It is unlawful for any person to tattoo the body of any human being; except that tattooing may be performed by a person licensed to practice medicine or dentistry under chapters 458 and 459 or chapter 466, or by a person under his direction.
(2) Any person who violates the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

The issue is one of statutory construction. Specifically, we must decide whether the statute requires that a physician or dentist be in actual attendance during the tattooing operation. We conclude that the regulation of tattooing is a legislative matter and that the reasoning of the Piperato decision is sound. We thus affirm the trial court’s finding that the statute requires actual attendance or presence rather than mere inspection.

AFFIRMED.

HERSEY, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

It is uncontradicted in this case that the appellant has, by written contract, transferred to a named licensed physician “full and complete control and supervision over the medical and sterile procedures to be followed” in appellant’s tattoo studio. Having done so I do not believe the appellant can be denied an occupational license on the grounds that he is doing business in violation of section 877.04’s prohibition of tattooing except by physicians or dentists or those acting under their direction. I believe this provision is ambiguous and that, since it is a penal statute the violation of which constitutes a misdemeanor, we are obligated to liberally construe the statute in favor of the appellant, the alleged violator of the statute. § 775.021, Fla.Stat. (1979); Jones v. State, 356 So.2d 4 (Fla. 4th DCA 1977). As the Florida Supreme Court has stated:

The statute requires that tattoo artists work subject to the direction of a licensed physician or dentist as defined by the act.

Golden v. McCarty, 337 So.2d 388, 391 (Fla.1976). As noted, it is undisputed here that the appellant, a tattoo artist, does work subject to the direction of a licensed physician. That physician has testified that, in addition to the directions and instructions he provides the appellant as to proper tattooing procedures, the physician also visits the studio some 42 times annually to ensure that proper tattooing procedures are being followed. The legislature has not mandated that all tattooing be done “in the presence of a physician” as the Third District and the majority have held. I think the legislature intended by the enactment of section 877.04 to require that a physician be responsible for the procedures utilized by tattoo artists. In this case it is undisputed that a physician is responsible.

There are many procedures that are carried out under the direction of physicians that do not require the physical presence of the physician. Indeed, most medical personnel act under the direction of physicians in almost all of the procedures they perform on people. I do not believe we should construe section 877.04 to require the physical presence of a physician without an express indication from the legislature that such was intended. For example, section 463.-002(5), Florida Statutes (1979) does specifically require the presence of an optometrist when certain optometry functions are performed by support personnel. Section 877.-04 contains no such mandate. Indeed, the legislature has authorized the practice of accupuncture without statutorily requiring any supervision by physicians. See Chapter 389, Fla.Stat. (1981).

In addition, if the legislature had intended to completely prohibit tattooing except for bona fide medical reasons, as the Florida Supreme Court pointed out in Golden is the case in New York, such prohibition could easily have been accomplished by the use of the same clear language utilized by the New York legislature discussed in Golden.


author: FERGUSON, Judge.

text:
    William LADNER and Judith Ladner, his wife, Appellants, v. PLAZA DEL PRADO CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 81-1428.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Jan. 12, 1983.

      Tew, Critchlow, Sonberg, Traum & Fried-bauer and Richard Critchlow, Miami, for appellants.
    Michael L. Hyman and Andrew Kaplan, Miami, for appellee.
    Before DANIEL S. PEARSON, and FERGUSON, JJ., and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge.
   FERGUSON, Judge.

The owners of a condominium unit bring this appeal from a Final Judgment ordering them to restore their terrace railing to its original condition in compliance with the Declaration of Condominium and by-laws. Appellants make two arguments: (1) the order requiring them to correct a non-conforming condition constitutes an impermissible selective enforcement of the rules, (2) a prior decision of this court holding that the action by the condominium association constitutes selective enforcement is the law of the case and is not open to redetermination by the trial court.

We will first address the second point on appeal. The case was before this court previously, Ladner v. Plaza Del Prado Condominium Association, Inc., 384 So.2d 50 (Fla. 3d DCA 1980), to review an order granting the Condominium Association’s motion for preliminary injunction which required appellants to correct the nonconforming condition of their terrace railing. This court reversed the preliminary injunction for the reason that the Association had failed to show that without the injunction they would suffer irreparable harm, citing to Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977). The opinion, set out in its entirety below, also purports to decide the underlying merits of the case:

We reverse the decision of the trial court granting the condominium association a temporary mandatory injunction requiring the Ladners to restore the terrace of their apartment to its original condition. Ordering the Ladners to remove their nonconforming, differently colored terrace railings constitutes selective enforcement of the rules contained in the declaration of condominium and the bylaws contrary to White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979). Furthermore, no irreparable harm to appellee has been shown. Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977).
Reversed and remanded for further proceedings.

Ladner, 384 So.2d 50 (emphasis supplied).

But the narrow issue before this court in the interlocutory appeal from the order granting temporary injunction was whether the Condominium Association had made a showing, reasonably free from doubt, that a preliminary injunction was necessary to prevent great and irreparable injury. See, e.g., Sackett v. City of Coral Gables, 246 So.2d 162 (Fla. 3d DCA 1971). The expression that the Association was selectively enforcing its rules was beyond that necessary to decide the narrow issue raised so is obiter dictum and without force. State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla.1973); Pell v. State, 97 Fla. 650, 122 So. 110 (1929).

There is a second and even more compelling reason why we must reject appellant’s argument that the statement made in the prior opinion as to a material point in the controversy constitutes the law of the case. Acceptance of such a proposition would essentially require us to hold that a final judgment of injunction could enter based on facts developed at the preliminary stage before the parties have had an opportunity for a full hearing. The purpose of a temporary injunction is to preserve the status quo until a final hearing when full relief may be granted. Tamiami Trail Tours, Inc. v. Greyhound Lines, Inc., 212 So.2d 365 (Fla. 4th DCA 1968). A preliminary injunction does not decide the merits of the case unless (1) the hearing is specially set for that purpose, (2) the parties have had a full opportunity to present their cases, University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981), and a denial of a preliminary injunction or reversal of an order granting same does not preclude the granting of a permanent injunction at the conclusion of a full hearing. Hialeah, Inc. v. B & G Horse Transportation, Inc., 368 So.2d 930 (Fla. 3d DCA 1979). Because a party is not required to prove his case in full at a preliminary injunction hearing, the findings of fact and conclusions of law made by the court at that hearing are not binding at the trial on the merits. University of Texas v. Camenisch, 451 U.S. at 395, 101 S.Ct. at 1833. It follows necessarily that any expression on the merits of the case by an appellate court reviewing an order granting or denying a preliminary injunction, where review is based on a record made at a less-than-full hearing, will not be binding at trial on the merits.

Appellant’s first point on appeal goes to the merits of the case. At the hearing on the merits after remand, the trial court made the following findings:

2. That the defendants, William Ladner and Judith Ladner, his wife, are the owners of [a] condominium unit..., purchased with notice of and are subject to the provisions of the Declaration of Condominium as well as the other involved condominium documents, including the bylaws.
3. That the Declaration of Condominium provides in part that no unit owner shall decorate or change the appearance of any portion of the exterior of the apartment building without the prior approval, in writing, of the owners of record of 51% of the condominium units and the approval of the association.
4. That the defendants, without seeking or obtaining requisite prior approval materially altered the railings of the terrace of their condominium unit.
5. The plaintiff association, acting through its Board of Directors, did notify the defendants of their violation of such provision of the Declaration of Condominium and request compliance therewith.
6. That defendants failed to comply with such requests of the Board of Directors resulting in the filing of the instant case.
7. That based upon the evidence presented to the court, the court finds that as a result of the decision in Plaza Del Prado v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977) a certain group of unit owners who had received permission from the developer of the Plaza Del Prado Condominium were allowed to maintain their terrace railings with the alterations permitted by the developer.
8. That as a result of the Richman decision, the plaintiff association was without authority to compel compliance with the Declaration of Condominium as to that certain group of unit owners.

Those findings of the trial court are supported by competent and substantial evidence in the record. A finding of fact by a trial judge in a non-jury case will not be set aside on review unless totally unsupported by competent substantial evidence. Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982); Oceanic International Corp. v. Lantana Boatyard, 402 So.2d 507 (Fla. 4th DCA 1981). The alterations made by unit owners with permission of the developer, before responsibility for enforcement of the Declarations and bylaws was transferred to the Association, are the only alterations which have continued. The Association, since it inherited the responsibility for enforcement, has consistently precluded any further violations of the agreement not to alter the architectural uniformity of the exterior building. That the Association has consistently performed its duty to enforce the mutual agreement entered into by all the unit owners, and has done so only prospectively, whereas the predecessor developer was lax in enforcing those rules, does not constitute selective and arbitrary conduct by the association in violation of the proscriptions of White Egret Condominium v. Franklin, 379 So.2d 346 (Fla.1979).

Affirmed.

      . Preliminary injunction and temporary injunction are used interchangeably and have the same meaning. Black’s Law Dictionary 923 (rev. 4th ed. 1968). The Florida Rules of Civil Procedure, 1.610(a) uses “Preliminary Injunction”, and distinguishes it from “Temporary Restraining Order”. Fla.R.Civ.P. 1.610(b).

      . The case came for hearing on the Motion for Temporary Injunction March 5, 1980, twelve days after plaintiffs applied for the injunction. The evidence presented at the hearing consisted of testimony of plaintiff association’s president, another aggrieved member of the association, and photographs. Appellants could not attend. Counsel for appellants argued at the conclusion of the hearing that the court had not been presented all of the evidence. Appellees here agree. So do we.


text:
    CITY OF MIAMI SPRINGS, joined by E. Michael Myers, Appellants, v. Earl C. STEFFEN and Mardell Steffen, his wife, Appellees.
    No. 82-1148.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Jan. 10, 1983.

      Albert L. Weintraub, Joseph H. Weil, Miami, for appellants.
    J. Arthur Hawkesworth, Jr., Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

We reverse the temporary mandatory injunction which directs defendants to pay plaintiffs $53,491.21 in back wages. The purpose of a temporary injunction is to preserve the status quo until full relief may be granted. Tamiami Trail Tours, Inc. v. Greyhound Lines, Inc., 212 So.2d 365 (Fla. 4th DCA 1968). There is no irreparable harm for the purpose of a temporary injunction where the harm can be adequately compensated for by a monetary award. Goldberger v. Regency Highland Condominium Association, Inc., 383 So.2d 1173 (Fla. 4th DCA 1980); Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979). A temporary injunction does not decide the merits of a case unless (1) the hearing is specially set for that purpose, and (2) the parties have had a full opportunity to present their cases. University of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Ladner v. Plaza Del Prado Condominium Association, Inc., 423 So.2d 927 (Fla. 3d DCA 1982).

Reversed and remanded.


text:
    PREVENTIVE SECURITY AND INVESTIGATORS, INC., and Kent Insurance Company, Appellants, v. William TROGE, Appellee.
    No. 81-1755.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1982.
    Rehearing Denied Jan. 10, 1983.
    Magill, Reid, Kuvin & Lewis and Fred Lewis, Miami, for appellants.
    Goodhart & Rosner, Daniels & Hicks and Mark Hicks, Miami, for appellee.
    Before HUBBART, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

This is an appeal from a final judgment entered upon a jury verdict awarding compensatory and punitive damages in a negligence action. The defendant and its insurer appeal raising a variety of points, none of which constitutes reversible error.

The central contention presented is that insufficient evidence was presented below to sustain a punitive damage award and that, accordingly, the trial court erred in denying the defendants’ motion for a directed verdict on the punitive damage claim. We cannot agree.

The record reveals sufficient evidence upon which the jury could have reasonably found that the guard for the defendant security company acted with willful and wanton disregard for the rights of the plaintiff. While on the job and positioned where he could not see the boats he was supposed to keep watch over, the guard fell asleep in his car, with the engine running and the windows up, at a time when the plaintiff was being severely beaten on a boat by an intruder. See e.g., Johnson v. State, 148 Fla. 510, 4 So.2d 671 (1941). Moreover, the record contains sufficient evidence upon which a jury could have reasonably found that the defendant security company, as the guard’s employer, was guilty of some fault in this incident which foresee-ably contributed to the plaintiff’s injuries. The defendant security company provided no training whatever for its guard and allowed him to stay in his car while on duty in a position where he could not see the boats he was guarding. See e.g., Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981).

We have also considered the other points raised upon this appeal by the defendants but do not deem any of them adequately preserved for appellate review. The final judgment under review is, in all respects,

Affirmed.


text:
    Michael Leon KING, Appellant, v. STATE of Florida, Appellee.
    No. 81-2374.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Jan. 19, 1983.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) and F.S. § 775.021(4) (1981).

BERANEK and WALDEN, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Gordon Mark LUDWIG, Appellee.
    No. 82-475.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Rehearing Denied Jan. 19, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Jane D. Fishman of Kay & Silber, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Our review of the defendant’s motion to dismiss together with the state’s traverse leads us to conclude that there are material disputed facts which, if resolved in the state’s favor, would establish a prima facie case of guilt against the defendant. Accordingly, we hold that the trial court erred by dismissing the information in this case. See State v. Pentecost, 397 So.2d 711 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    James Earl MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-917.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1982.
    Rehearing Denied Dec. 27, 1982.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the transcript and record on appeal, we affirm appellant’s convictions for conspiracy to traffic in cocaine, delivery of a controlled substance, possession of a firearm during the commission of a felony, and carrying a concealed firearm.

We submit, however, that the trial court erred in sentencing appellant for carrying a concealed firearm as the crimes of carrying a concealed firearm and possession of a firearm during the commission of a felony were facets of the same transaction. Therefore, carrying a concealed firearm was a lesser included offense of possession of a firearm during the commission of a felony. Appellant cannot be properly sentenced for both. Walton v. State, 360 So.2d 50 (Fla. 2d DCA 1978).

Accordingly, we remand to the trial court with directions to set aside the sentence for carrying a concealed firearm; otherwise, judgment and sentences are affirmed. Appellant need not be present for this purpose.

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


text:
    Theodore J. DELISI, Jr., and Theodore J. Delisi, Sr., Petitioners, v. Jim SMITH, Attorney General of the State of Florida, Respondent.
    No. 82-1161.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1982.
    Rehearings Denied Dec. 28, 1982.

      Steven Kellough and A.J. Barranco, Jr., of Barranco & Kellough, P.A., Miami, and Law Offices of Michael H. Bloom, Coconut Grove, for petitioners.
    Jim Smith, Atty. Gen., and David K. Miller, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

In this petition for writ of certiorari we must decide whether or to what extent defendants in a RICO civil forfeiture action can refuse to answer interrogatories, answer questions propounded at deposition, and produce certain business records by invoking their privilege against self-incrimination.

The Attorney General of the State of Florida filed an action against Theodore J. Delisi, Sr., and Theodore J. Delisi, Jr., and others, for forfeiture of properties and money damages pursuant to section 943.464, Florida Statutes (1979). In response to a notice of taking deposition duces tecum, Delisi, Sr., objected but agreed to appear for the deposition in order to create an adequate record for review by the lower court. At the deposition Delisi, Sr., failed to produce the documents and, after stating his name and address, asserted his privilege against self-incrimination as secured by the fifth and fourteenth amendments to the United States Constitution and the Florida Declaration of Rights and declined to answer any of the questions directed to him. Written interrogatories were propounded to Delisi, Jr., and pursuant to Florida Rule of Civil Procedure 1.340(a), his attorney entered objections on the same grounds.

The attorney general moved to compel discovery. The court granted the motions, and the Delisis petitioned for certiorari.

There are two aspects of the privilege against self-incrimination which we must consider. The first involves the absolute prohibition of compelling a defendant in a criminal case to testify against himself. The second pertains to the right of a witness in a proceeding other than a criminal prosecution in which he is a defendant to refuse to respond to interrogation on the grounds that his answers might tend to incriminate him. See McCormick’s Handbook of the Law of Evidence § 116(c) (E. Cleary 2d ed. 1972). If this RICO action is construed as a criminal proceeding, the state is not entitled to the discovery which it seeks.

In Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), the Supreme Court considered a federal statute authorizing fine, imprisonment and forfeiture of imported merchandise for violation of the customs laws. Defendants in a forfeiture proceeding were ordered to produce certain papers to be used against them. The court enunciated the principle that:

“[Proceedings instituted for the purpose of declaring the forfeiture of a man’s property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal.... [W]e think that they are within the reason of criminal proceedings for all the purposes ... of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself.

116 U.S. at 634, 6 S.Ct. at 534.

Petitioners herein argue that Boyd controls and that, therefore, the lower court’s order compelling discovery should be quashed. An examination of case law subsequent to Boyd persuades us to reach a contrary conclusion.

Whether a given sanction is considered civil or criminal is a question of legislative intent. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972). Since Boyd, the Supreme Court has on several occasions sustained the imposition of both a criminal penalty and a civil sanction for forfeiture for the same act or omission, holding that forfeiture proceedings can be civil and remedial if the legislative intent so indicates. See, e.g., One Lot Emerald Cut Stones (forfeiture under customs law); United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943) (forfeiture under fraudulent claims act). In Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), the Supreme Court noted that forfeiture as a remedial sanction has long been recognized as enforceable by civil proceedings, and constitutional guarantees governing criminal prosecutions do not apply. In noting that a defendant in a civil forfeiture action has no constitutional right to refuse to testify, the court did not construe Boyd as holding to the contrary “where the sanction involved is remedial, not punitive.” Helvering v. Mitchell, 303 U.S. at 404, n. 12, 58 S.Ct. at 635, n. 12 (1938).

More recently, the United States Supreme Court addressed this issue in depth in United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). In Ward, the lessee of a drilling facility in Oklahoma notified an office of the Environmental Protection Agency that oil was escaping from its retention pit. The notification was in accordance with the Federal Water Pollution Control Act which imposed a duty upon anyone in charge of an appropriate facility to report discharges of oil into navigable waters. The act included a form of “use immunity” which specified that any such notification could not be used against the person making the required report in any criminal case except for prosecution for perjury or for giving a false statement. Thereafter, pursuant to another section of the same act, the Coast Guard assessed a civil penalty of $500 against the reporting lessee. He appealed on grounds that the reporting requirements of the act violated his privilege against compulsory self-incrimination. The case finally reached the Supreme Court after the court of appeals had determined that the act was sufficiently punitive to intrude upon the fifth amendment protections against self-incrimination. The Supreme Court reversed with two concurring and only one dissenting opinions.

The Court first analyzed the act to see whether Congress intended to provide a civil or a criminal penalty. Noting that Congress had labelled the sanction a “civil penalty,” the Court concluded that it had no doubt that Congress intended to allow the imposition of the penalties without regard to the procedural protections and restrictions available in criminal prosecutions. The Court went on to hold that the statutory scheme was not so punitive either in purpose or effect as to negate that intention despite the fact that the behavior to which the penalty applied was a crime in and of itself. The Court found it significant that civil penalties were enacted in a separate act passed many years after the criminal statute.

Finally, the Court addressed the lessee’s argument predicated upon Boyd that while the penalty provision of the act may not provide him with the other procedural guarantees normally associated with criminal prosecutions, it was nevertheless “quasi-criminal” and therefore sufficient to implicate the fifth amendment’s protection against compulsory self-incrimination. In addressing Boyd, the Court first observed:

This Court has declined, however, to give full scope to the reasoning and dicta in Boyd, noting on at least one occasion that “[sjeveral of Boyd’s express or implicit declarations have not stood the test of time.”

448 U.S. at 253, 100 S.Ct. at 2643. The Court went on to distinguish Boyd in several particulars, including the observation that Boyd dealt with a forfeiture of property that was a penalty having absolutely no correlation to any damages sustained by society or the costs of enforcing the law. In the final analysis, however, the Court fell back upon the intent of Congress when it said:

More importantly, however, we believe that in the light of what we have found to be overwhelming evidence that Congress intended to create a penalty civil in all respects and quite weak evidence of any countervailing punitive purpose or effect it would be quite anomalous to hold that § 311(b)(6) created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes. We do not read Boyd as requiring a contrary conclusion.

448 U.S. at 254, 100 S.Ct. at 2644.

The remedial character of the Florida RICO forfeiture action is made clear by an examination of the legislative findings of fact made in conjunction with passage of the RICO Act.

WHEREAS, the Legislature finds that organized crime is a highly sophisticated, diversified, and widespread problem which annually drains billions of dollars from the national economy by various patterns of unlawful conduct, including the illegal use of force, fraud, and corruption, and
WHEREAS, organized crime exists on a large scale within the State of Florida, and it engages in the same patterns of unlawful conduct which characterize its activities in other states, and
WHEREAS, seventeen of the twenty-one publicly identified organized crime “families” are reported to operate within Florida, and because no single “family” is considered by the other “families” to have exclusive dominion in the state, Florida is considered by organized criminal operatives as an “open state” and other organized criminal operatives are now migrating to Florida from other states, and
WHEREAS, organized crime is infiltrating and corrupting legitimate businesses operating within this state and this infiltration and corruption uses vast amounts of money, power, and all the techniques of violence, intimidation, and other forms of unlawful conduct to accomplish its goals, and
WHEREAS, in furtherance of such infiltration and corruption, organized criminal operatives utilize and apply to their unlawful purposes laws of the State of Florida conferring and relating to the privilege of engaging in various types of business enterprises, and
WHEREAS, infiltration and corruption of legitimate business provide an outlet for illegally obtained capital, harm innocent investors, entrepreneurs, merchants, and consumers, interfere with free competition, and thereby constitute a substantial danger to the economic and general welfare of the State of Florida, and
WHEREAS, in order to successfully resist and eliminate such infiltration, it is necessary to provide new criminal and civil remedies and procedures, NOW, THEREFORE, ...

Ch. 77-334, Laws of Fla.

We find that the instant forfeiture action furthers several remedial purposes. First, it impairs the ability of those engaged in criminal activity to camouflage their illegal operations. Second, it attempts to eliminate from the legitimate business community competition by illegal capital. Third, it attempts to reduce the profits of those engaged in illegal enterprises and thereby discourage further migration to Florida of organized crime “families.”

There are further analogies to Ward in the RICO statute. Section 943.464 is entitled “Civil Remedies.” The RICO statute was enacted separately and in most instances long after the various statutes proscribing the criminal conduct which constitutes racketeering activity. Moreover, in a general way, the civil remedies under the RICO act, rather than imposing a totally unrelated forfeiture, are designed to recover for society the ill-gotten gains of those engaged in criminal activity.

Accordingly, we hold that the petitioners do not have the right to refuse to testify or to provide discovery in the civil proceedings conducted pursuant to section 943.464, Florida Statutes (1979).

This, however, does not end our inquiry. We must also consider the second aspect of the privilege, because the petitioners also argue that to answer the questions and furnish the requested information would incriminate them in other proceedings. Of course, the determination of what answers may incriminate or tend to incriminate cannot be left solely up to the witness but is a matter which requires the exercise of the sound discretion of the trial court under all the circumstances of the case. State ex rel. Mitchell v. Kelly, 71 So.2d 887 (Fla.1954).

We see no departure from the essential requirements of law in the denial of most of Delisi, Jr.’s objections to the interrogatories propounded to him. Interrogatories 1 (identify persons who participated in the answering of interrogatories), 3 (identify persons having knowledge of the defendant’s financial records and those whom defendant anticipates calling as witnesses at the trial), 5 (identify other witnesses defendant anticipates calling at the trial), and 6 (identify documents, records and exhibits which defendant anticipates introducing at the trial) are well within the scope of civil discovery, and we cannot say that the trial judge abused his discretion in determining that it was not reasonably possible that they would evoke a response forming a link in the chain of evidence which might lead to criminal prosecution.

Interrogatories 7 and 8 relate to the defendant’s address. The answer to this question might bring about Delisi, Jr.’s apprehension but will not incriminate him because he became a fugitive when he failed to appear in connection with his criminal prosecution. Interrogatories 9 (describe defendant’s employment since 1970), 11 (name all business entities with which the defendant has had affiliations since 1970), 12 (describe the nature of such business entities and identify the records custodian of each), and 13 (describe any government license or permit held by the defendant or any of such business entities) were limited by the trial court to require only responses with respect to lawful employment, lawful business affiliations and lawful licenses or permits. As so limited, we cannot say that the objections were improperly denied because the answers should not reasonably be expected to incriminate Delisi, Jr.

We believe, however, that the court should have stricken interrogatory number 2 which first asked for the identification of all exculpatory witnesses and then required Delisi, Jr., to state which exculpatory witnesses he anticipated calling at the trial. When the answers to these interrogatories are compared with the answers to those relating to other witnesses, it follows that Delisi, Jr., is being asked to name inculpato-ry witnesses, an answer which may tend to incriminate him. Furthermore, interrogatory number 10, as limited by the court, requires Delisi, Jr., to state various items of lawful income as reported on federal income tax returns since 1970. Access to his federal income tax returns might reveal that additional income was reported, thereby leading to the conclusion that it was unlawful. We believe that, as phrased, there might be at least a possibility that the answer to this question would tend to incriminate Delisi, Jr.

Delisi, Sr., was served a subpoena duces tecum requiring him to appear for his deposition and produce various financial records. He refused to bring the records on the basis of his fifth amendment privilege against self-incrimination and declined to answer the various questions propounded to him on the same basis. At the hearing, the court ruled that since Delisi, Sr., had pled nolo contendere to and was convicted of the charges arising out of the conduct upon which this RICO action was based, he no longer had a right to decline to produce the records or to refuse to testify concerning these matters.

In his petition for certiorari, Delisi, Sr., asserts that he had the right to claim the privilege of self-incrimination because he is still subject to federal prosecution for the same conduct. In this regard, the law is clear that under the doctrine of “dual sovereignty” a defendant may constitutionally be tried for violation of state and federal laws arising from the same criminal episode. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); State v. Booth, 418 So.2d 385 (Fla. 1st DCA 1982).

In addressing this issue, this court asked for supplementary briefs on the question of whether compelled discovery in a civil RICO action, when a fifth amendment right against self-incrimination is exercised, operated as a grant of immunity for unprosecut-ed crimes. We were interested in this subject because if the compelled discovery by the state in these proceedings constituted a grant of immunity, such a grant would preclude later federal prosecution, thereby obviating the objection. Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964).

Upon consideration, we have concluded that Florida’s statutory provision for immunity does not contemplate the granting of immunity in a civil RICO proceeding. The statute provides that no person shall be excused from testifying or producing any records “upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state” upon grounds of self-incrimination. In view of our previous analysis, it is evident that this civil RICO action cannot be deemed a proceeding for the violation of a criminal statute. As a consequence, Delisi, Sr.’s objection predicated upon his fear of federal prosecution was well founded.

Because of the trial judge’s ruling that Delisi, Sr.’s state court conviction precluded further objection upon grounds of self-incrimination, he never specifically addressed the actual questions propounded to Delisi, Sr., at his deposition. Some of these questions were not objectionable on the basis of a fear of federal prosecution or upon any other basis. Hence, upon remand it will be necessary for the court to address the specific questions to which objections are made.

Finally, Delisi, Sr., complains of the order requiring him to produce the financial records which were in his possession pertaining to various entities and persons. Regardless of the possibility of federal prosecutions, these objections were not well taken with respect to the corporate and partnership records because the custodian of these records cannot object to their production on grounds of self-incrimination even when the corporation or partnership is a small or closely held business and the records custodian is an officer, director or partner who might be implicated in the criminal activity by virtue of the content of the records. Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974). In order to decide whether to require the production of the records of certain undes-ignated business entities, the court will have to inquire into their structure to see whether they fall within the rationale of Beilis. Whether Delisi, Sr., can refuse to produce his son’s records which are in his possession is an issue which was never specifically addressed to either the trial court or to this court and, therefore, should be considered upon remand.

Accordingly, we partially grant the petition for writ of certiorari and quash that portion of the order which requires Delisi, Sr., to produce all of the records requested and to answer all of the questions propounded. We remand this aspect of the case for further proceedings with the thought that the parties might wish to start over so as to have the benefit of the guidelines set forth in this opinion. We also quash the requirement that Delisi, Jr., answer interrogatories 2 and 10. In all other respects, the petition for writ of certiorari is denied.

GRIMES, A.C.J., and SCHEB and CAMPBELL, JJ., concur.

      . We previously considered an attack on a preliminary injunction in this action. See Delisi v. Smith, 401 So.2d 925 (Fla. 2d DCA 1981).

      . In any event, this objection may be moot since the state has advised us that pending these proceedings Delisi, Jr., has been apprehended.

      . 914.04 Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him; immunity from prosecution. — No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.
      This statute was amended in 1982 to eliminate transactional immunity. Ch. 82-393, Laws of Fla.

      . This is not to say that the legislature could not authorize the grant of immunity in a civil RICO proceeding, but so far it has not seen fit to do so.

      . We note that during the course of the hearing, the judge observed that he understood that Delisi, Sr., had waived his self-incrimination privilege as part of a bargain in connection with his nolo contendere plea. Upon remand, the state may wish to develop this further because if this actually occurred, Delisi, Sr., would hardly be in a position to repudiate his waiver.


text:
    S. KORNREICH & SONS, INC., Appellant, v. TITAN AGENCIES, INC., a Florida corporation, Appellee.
    Nos. 81-697 to 81-700.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 10, 1983.

      Finley, Kumble, Wagner, Heine & Under-berg and Philip Bloom and Phyllis K. Harte, Miami, for appellant.
    Mamber, Epstein & Savage, North Miami Beach, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellee-Titan, a Florida licensed insurance agency, and appellant-Kornreich, a Florida nonresident insurance agency which maintains its offices in New York City, entered into a fee-splitting arrangement whereby Titan would act as Kornreich’s agent to service Kornreich’s clients who had moved to Florida. The main issue in the case was whether Titan was to look solely to Kornreich for payment of premium costs advanced by Titan on behalf of Kornreich’s clients.

At the first hearing of a trial — bifurcated on appellant’s motion — the court determined that Kornreich was liable to Titan for premium costs which Titan advanced to the insurers on behalf of Kornreich’s clients. At the second hearing the court considered extensive evidence produced by Titan in arriving at the amount of damages.

Kornreich contends here that (1) the court erred in finding it liable and assessing damages at $116,325.33, (2) the findings made by the court at the trial on liability fixed or limited the evidence which the court could consider on the issue of damages, (3) the trial court erred in admitting into evidence without prior notice, a financial summary prepared by Titan.

The first issue challenges the sufficiency of the evidence and the credibility of Titan’s witness. Kornreich put on evidence to dispute the testimony of Titan’s comptroller as to the correctness of the accounting method used in arriving at the figure of $116,323.33 in damages. Although the evidence as to damages is conflicting, there is substantial evidence which supports the damages as determined by the court, thus, this finding must be affirmed. Trobaugh v. Trobaugh, 81 So.2d 629 (Fla.1955); City of Miami Beach v. Fein, 263 So.2d 258 (Fla. 3d DCA 1972); Cone v. Cone, 114 So.2d 461 (Fla. 3d DCA 1959). Kornreich argues further that it had sufficiently discredited the comptroller’s competency to the extent that the court should have discounted the testimony. We disagree. There is competent and substantial evidence to support the trial judge’s conclusions as to that issue, which conclusions would not be disturbed on appeal, Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Atkins v. Keller, 400 So.2d 168 (Fla. 3d DCA 1981); Massachusetts Casualty Insurance Co. v. Johansen, 270 So.2d 397 (Fla. 3d DCA 1972), even if we were to disagree. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Singer Housing Company v. Wren, 390 So.2d 428 (Fla. 1st DCA 1980). Credibility of witnesses is peculiarly within the province of the factfinder. Povia v. Melvin, 66 So.2d 494 (Fla. 1953); Hunt v. Palm Springs General Hospital, 352 So.2d 582 (Fla. 3d DCA 1977); Sweeney v. Wiggins, 350 So.2d 536 (Fla. 3d DCA 1977).

The consideration of a “Broker Statement”, at the first hearing, for the purpose of determining the relationship between the parties went solely to the issue of liability, and for the purpose of the subsequent hearing to determine damages, the court was not limited to that statement and a figure of $30,000 reflected thereon as a balance owed Titan by Kornreich.

Appellants received a copy of the disputed summary several weeks before the trial on damages; twelve days before trial they took a thirteen-hour deposition of the employee who had prepared the summary. On these facts we cannot agree that the technical violation of § 90.956, Florida Statutes (1977) was harmful. Bernstein v. Common Markets, Inc., 183 So.2d 290 (Fla. 3d DCA 1966); Victor Hotel Owners, Inc. v. Sperling, 104 So.2d 120 (Fla. 3d DCA 1958).

Affirmed.

      . § 90.956, Fla.Stat. (1977) provides:
      When it is not convenient to examine in court the contents of voluminous writings, recordings, or photographs, a party may present them in the form of a chart, summary, or calculation by calling a qualified witness. The party intending to use such a summary must give timely written notice of his intention to use the summary, proof of which shall be filed with the court, and shall make the summary and the originals or duplicates of the data from which the summary is compiled available for examination or copying, or both, by other parties at a reasonable time and place. A judge may order that they be produced in court.


author: SCHWARTZ, Judge.

text:
    Michael STUART, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2409.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 12, 1983.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The defendant appeals from convictions and five-year concurrent sentences for grand theft and carrying a concealed firearm. As to the latter offense, the only testimony was that a pocketbook with a pistol inside was hurled from the window on the passenger’s side of a vehicle which Stuart was driving and in which there was another occupant; no witness could say which of the two men had thrown the purse. We find this evidence totally insufficient to justify the finding of guilt on the CCF charge. Atkins v. State, 301 So.2d 459 (Fla. 4th DCA 1974); Lawson v. State, 251 So.2d 683 (Fla.3d DCA 1971); see J.L.B. v. State, 396 So.2d 761 (Fla.3d DCA 1981); Falin v. State, 367 So.2d 675 (Fla.3d DCA 1979). That judgment and sentence are therefore reversed.

There is no merit in the defendant’s claim of error in the court’s statement at the beginning of the trial that the jury “should be waiting to hear from the defense as to their side of the case before you ... take any position as to this case.” [e.s.] We do not agree that this admonition amounted to a forbidden suggestion that the defendant himself might — as he in fact did not — take the stand. Compare David v. State, 369 So.2d 943 (Fla.1979). Since this is the only point which affects the grand theft conviction, it is affirmed.

Affirmed in part, reversed in part.

      . The defendant’s fingerprints were found on an ammunition clip inside the gun. This evidence did not show even that the defendant had ever had possession of the firearm itself, let alone that he carried it while it was concealed within the purse. Arant v. State, 256 So.2d 515 (Fla. 1st DCA 1972); Tanksley v. State, 332 So.2d 76 (Fla.2d DCA 1976); see generally, Sorey v. State, 419 So.2d 810 (Fla.3d DCA 1982).


text:
    David SAULPAW, Appellant, v. Linda SINGER, Appellee.
    No. 82-364.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1982.
    Rehearing Denied Jan. 12, 1983.
    Don S. Cohn, Miami, for appellant.
    Linda Singer, Miami, in pro. per., and Lawrence & Daniels and Adam H. Lawrence, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We affirm upon a holding that the juvenile division of the circuit court was empowered by Section 39.41(l)(g), Florida Statutes (Supp.1980) to order the child’s natural father to pay reasonable attorney’s fees incurred by the indigent mother in procuring child support payments and preventing reduction thereof.

Affirmed.