author: HERSEY, Judge.

text:
    The EVERGLADES PROTECTIVE SYNDICATE, INC., Petitioner, v. William Blair MAKINNEY, Respondent.
    No. 80-213.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 6, 1981.

      William M. Hicks of Colson & Hicks, P. A., Miami, for petitioner.
    Joseph D. Farish, Jr. of Farish, Farish & Romani, West Palm Beach, for respondent.
   HERSEY, Judge.

By petition for writ of certiorari we are asked to review an order of the trial court granting a motion to compel answers to interrogatories.

A threshold question is whether cer-tiorari is an appropriate vehicle for testing the correctness of an order governing discovery procedures. We have previously answered that question affirmatively where the order was a departure from the essential requirements of law for which there would be no adequate remedy by appeal. Schering Corporation v. Thornton, 280 So.2d 493 (Fla.4th DCA 1973). Thus, we have jurisdiction.

William Blair Makinney was expelled from membership in The Everglades Club, a private social club. He filed a petition in the circuit court for a writ of mandamus to compel the club to reinstate his membership. The trial court issued a rule to show cause and the club filed a response. Makin-ney then served written interrogatories. Some of those interrogatories were answered; others were objected to as immaterial and irrelevant to any issue in the action. A motion to compel answers to the latter class of interrogatories was granted by the trial court, whereupon the club filed the present petition for certiorari.

We are asked to determine whether the order granting the motion to compel answers to interrogatories under the circumstances of this case constituted a departure from the essential requirements of law. If the interrogatories consist of questions relevant to the subject matter involved in the litigation, or if they “appear reasonably calculated to lead to the discovery of admissible evidence,” Rule 1.280(b)(1), Florida Rulés of Civil Procedure, they are appropriate and the order in question would withstand our scrutiny.

Material sought to be discovered must relate to the issues involved in the litigation in which an attempt to compel is made. Equifax Corporation v. Cooper, 380 So.2d 514 (Fla.5th DCA 1980). In a mandamus proceeding such as the one in the court below, the basic issues to be determined are whether the relator has a right to the performance of some act and whether the respondent has the correlative duty to perform that act. A petition for writ of mandamus that alleges facts demonstrating the co-existence of the right and the duty states a cause of action.

During oral argument an unsuccessful attempt was made to determine from counsel for Makinney the nature of the cause of action (Makinney’s right and the club’s duty) involved here. This was done not to test the vulnerability of the pleading, which is not before us for review, but to gain an insight into the legal issues sought to be raised. Without such clarification it is difficult to determine whether the interrogatories are relevant to those issues or reasonably calculated to lead to the discovery of evidence relevant and material to those issues. Counsel responded that these matters had been laid to rest in the trial court by disposition of a motion to dismiss. Counsel apparently temporarily lost sight of the fact that we have before us no record of the proceedings below since the matter is here on certiorari rather than on appeal.

Be that as it may, the original petition appears to us to raise three issues. First, it is suggested that notice to Makinney was somehow inadequate or improper. Second, the hearing afforded him was a sham. And third, that Makinney’s membership was terminated for reasons other than those stated by the club, but that such other reasons are unknown to Makinney.

As to the first two issues, the notice and hearing afforded Makinney are characterized as a sham and “ineffectual to satisfy the requirements of the letter and the spirit of the statutory and case law of Florida.” There is no question that Makinney was given notice and on more than one occasion, as specifically set out in his own pleading. The same may be said of a hearing. Appellant’s grievance, apparently, is that the notice and hearing did not afford Makinney due process since he was not given the opportunity to confront and cross-examine those members of the club who complained of his actions.

The petition for writ of mandamus contains the following allegations bearing out this hypothesis:

The Petitioner contends that the notice and hearing provided by the Respondent was nothing more than a sham and was ineffectual to satisfy the requirements of the letter and the spirit of the statutory and case law of Florida. First, the Petitioner was told only that there had been complaints that some of his quests behaved improperly at a party. Despite repeated requests, the Petitioner was never given specifics as to which of his several quests were behaving improperly, what sort of behavior occurred, or which members complained. The Petitioner contends that, in order for the notice and hearing to have meaning, he was entitled to be given notice of the charges against him with sufficient specificity that he could defend against them. See 20 A.L.R.2d 356-358 and the cases cited thereunder.
Second, the Petitioner was not given a fair hearing at which to respond to the charges brought against him. He was merely brought before the Board and asked what he had to say in his behalf. No evidence was presented as to the charges brought against him. No witnesses appeared to substantiate the claims that some of his quests had behaved improperly. The Petitioner did not have an opportunity to face or cross examine his accusers. His requests to have an attorney present were denied. The so-called “hearing” provided by the Respondent amounted to little more than an inquisition.

Reliance on La Gorce Country Club v. Cerami, 74 So.2d 95 (Fla.1954) as supporting the foregoing argument is misplaced. In that case no notice was given and there was no hearing. The court simply decided that notice and hearing were required in order to comply with due process requirements. It did not, however, mandate a trial and we think properly so. With regard to the hearing, the court held that “This procedure need not have been formal, or in any way ponderous, but it was indispensable as a matter of law.” Id. at 98.

The statute, § 617.10(2), requires only that members “be given an opportunity to be heard, ...” before their membership is terminated. The rights afforded by the statute have recently been articulated in Weinberg v. East Lake Woodlands, Ltd., 362 So.2d 375, 376 (Fla.2d DCA 1978).

While courts have often been wary of entering into disputes between private social clubs and their members, it has long been the rule in Florida that a person has a right to notice and a hearing when a club proposes to cancel his membership. Moreover, the cancellation must comport with the applicable by-laws or regulations of the club.

These two issues, then, are whether Ma-kinney was timely notified of a hearing and whether, at a hearing, he was given an opportunity to be heard. We will subsequently consider whether the interrogatories were pertinent to these issues.

The third issue raised by the pleadings questions the reason given for Makin-ney’s expulsion from membership in the club. The specific allegation in the petition reads:

The termination of Petitioner’s membership in The Everglades Club was made wilfully, wantonly and in bad faith in that the actual reason for the termination of his membership was other than that alleged which is unknown.

There are no factual allegations upon which the conclusion of the pleader in this regard are based. The allegation is a mere legal conclusion, insufficient to frame an issue for litigation.

Even if there were factual allegations, however, it is difficult to see how a justiciable issue could be made. The governing body of a private, social club “is the final arbiter of the sufficiency of causes for expulsion.” La Gorce Country Club v. Cerami, supra at 99. It would appear that almost any reason would be a sufficient cause for expulsion if the governing body so determines. We distinguish here the rights of a member of an organization which is related to earning one’s livelihood or professional advancement from the rights of a member of a private, social club. The former has constitutional overtones that the latter does not. Thus, in State ex rel. Barfield v. Florida Yacht Club, 106 So.2d 207, 211 (Fla.1st DCA 1958) the court pointed out:

We agree that the courts should leave to the members of a private social club or to the proper board to which the members have lawfully delegated that power, the right to determine whether the action of a member has been such that, in the opinion of such Board, it would interfere with the pleasant, friendly and congenial social relationship between the members. In the absence of a clear allegation and convincing proof, if the case reaches that stage, of fraud or bad faith, the action of the members or duly delegated board should not be reviewed by the courts.

Further justification for this distinction and a statement of the judicial and social policies involved are set out by the court in that opinion in the following language:

We have, in America, no social castes but, each group has its own pattern of conduct and activity which it approves, and which it finds enjoyable and inoffensive to its members. Actions, conduct or activity which might be inoffensive to one group might be frowned upon by another. If the courts should be called upon to determine the reasonableness of charges for expulsion, then the action and decorum of the members of all clubs would of necessity be measured by the standard of action the particular Court hearing the controversy might himself or themselves find offensive or inoffensive, as the case might be. Courts should, therefore, not be required to look into the inner workings of private social clubs or the reasonableness of the charges upon which expulsion may be based. Id. at 211.

Neither due process nor concepts of fundamental fairness compel the conclusion that an individual is entitled to the association of one or more other individuals against his or their will. A private, social club or any other voluntary group of individuals has the right to select its own members. Membership in this context is not a constitutional right. It is a bare privilege, terminable at the will of either the group or the individual. On the foregoing basis we conclude that the third issue attempted to be raised by the original petition is illusory and therefore is not pertinent here.

The objectionable interrogatories are the following:

2. State the exact date, time and place where the alleged incident occurred which resulted in the eventual expulsion of the Petitioner from The Everglades Club.
3. Please list the names and addresses of all persons who, either as members or as quests, were present or have any knowledge of the alleged incident which resulted in the expulsion of the Petitioner from The Everglades Club.
4. Please state the names and addresses of all persons who complained about the behavior or appearance of the Petitioner or his guests at The Everglades Club on the evening of April 17, 1978 or at any other time.
5. Please state the name and address of all persons to whom any complaint regarding the behavior and appearance of the Petitioner or his guests at a dinner party held at The Everglades Club on the evening of April 17, 1978, was made.
10. Please state the name and address of each person whose alleged misbehavior on the night of April 17, 1978, led to the expulsion of the Petitioner from The Everglades Club.

Without exception, these interrogatories pertain to matters having to do with the complaints against Makinney rather than the manner of his expulsion. None are relevant to nor reasonably calculated to lead to the discovery of evidence about the propriety of the notice or the hearing.

Applying the test referred to earlier, we conclude that the objections to the interrogatories in question were well taken.

Accordingly, we grant certiorari and quash the order granting the motion to compel. The trial court is instructed to enter an order denying the motion to compel discovery.

BERANEK and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Fione G. WELLS, as Trustee, Appellant, v. Bill WILKERSON and Ludmilla Wilkerson, his wife et al., Appellees.
    Nos. 80-449, 80-601.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 13, 1981.

      Patrick N. Brown, Fort Lauderdale, for appellant.
    David Feldman, Miami Beach, for appel-lees.
   HERSEY, Judge.

The seller of an apartment building takes this appeal from a summary judgment which requires him to convey the property to the buyer pursuant to a written agreement. The basis for the appeal is the alleged existence of several genuine issues of material fact that would preclude summary final judgment.

Most of the legal questions arising in a summary judgment setting have been laid to rest in what has become the landmark case in this area of Florida jurisprudence, Holl v. Talcott, 191 So.2d 40 (Fla.1966). In brief summary, the law is that one moving for summary final judgment must demonstrate that there is no genuine issue as to any material fact. A material fact is one essential to the result that is placed in controversy by the pleadings and affidavits. Thus, to preclude the entry of summary judgment there must be some fact essential to a resolution of the legal questions raised by the case which is genuinely controverted.

The material and undisputed facts are these. The buyers, appellees here, entered into a contract with Southeast Everglades Bank of Fort Lauderdale, as trustee, for the purchase and sale of a twelve unit apartment building. The contract was negotiated by a real estate broker. As originally drawn and presented to appellees, that agreement specified that the conveyance would be in the form of a Special Warranty Deed. Appellees rejected this term of the contract and required that the language be stricken. With this change accomplished, the agreement was then tendered to the trustee bank. It was the policy of the bank, when acting as trustee, to limit its own liability by furnishing Special rather than General Warranty Deeds. Accordingly, the language which had been stricken was again typed into the document and a copy was redelivered to the buyers. There was no further material activity with regard to the provision specifying a Special Warranty Deed.

In due course an abstract of the record title was delivered to the buyers showing good title in the trustee bank. There were no objections to the title.

On December 13, 1978, the buyers presented themselves, ready, willing and able to close, with funds as required by a proposed closing statement. The sellers’ attorney tendered two Special Warranty Deeds. One deed was from Southeast Bank as Trustee to George F. Hess, II, as Trustee, the former having resigned as trustee in the interim between execution of the contract and the closing. The second deed was from Hess as trustee to the buyers. The buyers refused to accept the tendered deeds and various alternatives were discussed. The closing was then adjourned.

There was an abortive unilateral attempt by sellers to close later in December, but at that time the buyers were unavailable and there had been no delivery to buyers of an update on the abstract of title, taking into account the deed from the Bank to Hess.

In January of 1979 such an updated abstract was delivered, whereupon buyers’ attorney requested that the underlying trust agreement be produced and made a matter of public record. There were various exchanges between the parties’ attorneys culminating in a letter from sellers’ attorney to buyers’ attorney dated February 5, 1979, purporting to terminate negotiations and effect a tender of the earnest money deposit. Shortly thereafter, buyers filed a complaint seeking specific performance of the purchase and sale agreement. Subsequently, Hess was replaced by appellant, Wells, as Trustee of the property.

Before proceeding to consider appellants’ position on appeal, we will dispose of two collateral matters. First, we have permitted the intervention in this appeal of a party claiming to have an interest in the real property involved in this litigation. We point out by way of disposition of that claim and any similar claims that neither the summary judgment nor these appellate proceedings have any effect on duly recorded encumbrances or other liens affecting the subject property. The conveyance effected by the final judgment below is subject to any valid matters of record. Second, the trial court refused to consider additional affidavits attempted to be introduced into the proceedings after summary judgment had been entered. The contents of those affidavits do not affect the conclusion we reach on this appeal, thereby rendering the issue of their timeliness and admissibility moot.

Appellant suggests the existence of several genuine issues of material fact that require reversal of the summary judgment. We recently reiterated the rule that unresolved material factual issues preclude summary judgment. Kennedy v. Wilmot, 371 So.2d 676 (Fla. 4th DCA 1979).

The first such issue is whether there was an agreement between the parties. There was a signed contract and neither party suggests that prior to or at the December closing the validity or enforceability of that contract was questioned. A possible ambiguity existed at one point with reference to the type of conveyance that would be used to effectuate the transaction. That issue became moot when the buyers agreed to accept an updated abstract and a Special Warranty Deed. As to execution of the contract and its formalities we find nothing in the record to support this as a genuine material issue.

Appellant argues that the buyers breached the contract at the December closing by insisting on a General Warranty Deed. Such a breach of contract would affect the availability of the remedy of specific performance so that the presence of such an issue would preclude summary judgment. However, there was no such breach of contract. The abstract of title showed record title to be in the bank as trustee. This entitled the buyers to a deed from that trustee at closing, not any combination of conveyances out of that trustee to others and then to buyers. Whether buyers were advised of the fact of the bank’s resignation and the resulting necessity for two deeds prior to or at the closing, in the absence of a valid and effective amendment of the original agreement binding the buyers to accept the two deeds, they were not required to do so. The fact that, at closing, the buyers offered to accept a General Warranty Deed from the new trustee and assurances from the beneficiaries of the trust was simply by way of settlement negotiations and did not constitute a breach of the original contract. This is a paper issue, at best, and was properly disregarded by the trial court.

Finally, appellant contends that appel-lees’ refusal to close on December 28, 1978 constituted a breach of contract with the same consequences as the alleged breach referred to previously in this opinion. Unless the seller agreed to one of the alternative proposals made by the buyers to effectuate closing, such as utilization of a General Warranty Deed, the buyer was entitled to. have the deed from the bank as trustee to Hess as trustee recorded and the abstract brought down to date showing good record title in Hess as trustee. There is no allegation that seller was in a posture to do that in December of 1978. The fact is, these details were incomplete as late as January 15, 1979, as evidenced by correspondence between the parties’ attorneys. There could have been no valid tender of title on December 28, 1978, or for some time thereafter. Sellers attempt to hold a closing was therefore an exercise in futility having no legal consequences.

We find no merit in appellants’ contention that buyers’ demand for production of the underlying trust agreement is a viable issue, whether or not that demand was legally justifiable. This demand simply was not germane to the ultimate issues involved in this case, nor was it material to the performance or lack of performance by either party.

The trial court correctly determined that no genuine issues of material fact remained unresolved at the time that summary judgment was granted.

We therefore affirm.

AFFIRMED.

LETTS, C. J., and BERANEK, J., concur.


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. Charles RAWLINGS, Appellee.
    No. 80-581.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.
    Rehearing Denied Jan. 14, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant.
    Elton H. Schwartz, Public Defender and Stephen L. Kramer, Asst. Public Defender, Fort Pierce, for appellee.
   MOORE, Judge.

This is an appeal by the State from the trial court’s order granting the defendant’s motion to suppress. We find that the trial court erred in suppressing the evidence and reverse.

The following evidence was adduced at the hearing on the defendant’s motion to suppress. Isaac Isham was watching television on October 21, 1979 when he heard some shots outside of his home. Isham looked out on the street where he saw a person whom he was unable to identify. Isham then called the police and reported what he had heard and seen.

Officer Williams responded to the call and found the defendant and a woman on a street in the vicinity of Isham’s house. These were the only two people in the area. Officer Arnold also responded to the call and arrived at the scene sometime shortly after the arrival of Officer Williams. While Officer Williams engaged the defendant in a conversation Officer Arnold approached and noticed the outline of a gun in the back pocket of the defendant’s pants. Arnold informed Williams of this fact and Williams conducted a pat down of the defendant. Officer Williams recovered a .25 caliber automatic pistol.

Based on this testimony the trial court suppressed the recovered firearm because the police did not have a founded suspicion to justify a detention of the defendant. While we agree that there was insufficient evidence of an articulable basis of founded suspicion presented at the hearing on the motion to suppress, we find that the police activity in this case did not constitute a detention of the defendant. Thus, such a showing was not necessary to justify the encounter between the defendant and the police. A mere contact between a citizen and a police officer which evokes voluntary cooperation on the part of a citizen is not a “seizure” within the meaning of the Fourth Amendment. United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979); United States v. Wylie, 569 F.2d 62 (D.C.Cir. 1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1527 (1978). See also, United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Where, as in the instant case, the police approach a citizen under somewhat suspicious circumstances for the purpose of routinely investigating a reported crime, no “seizure” has occurred. “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone in the streets.” Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, 913 (1969) (White, J., concurring). If, during a lawful and extremely temporary encounter between a police officer and a citizen, probable cause is formulated to believe that the citizen is carrying a dangerous weapon, a frisk of that citizen’s person is entirely justified to insure the safety of the police officer. Carter v. State, 370 So.2d 1181 (Fla. 4th DCA 1979); State v. Francois, 355 So.2d 127 (Fla. 3rd DCA 1978); Williams v. State, 294 So.2d 37 (Fla. 3rd DCA 1974).

In the instant case, there can be little doubt that Officer Arnold had probable cause to believe that the defendant had a firearm in his back pocket. Arnold was certainly familiar with the general shape of a handgun. Furthermore, the police were present at the scene to investigate a reported shooting which had occurred just prior to their investigatory contact with the defendant. The police “frisk” of the defendant was both justified and necessitated by the circumstances of this case.

Accordingly, we reverse the trial court’s order granting the motion to suppress and remand the cause for further proceedings.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    John J. LANE, Philander Cooke, William J. McCarthy and Fred J. Roberto, as designated Trustees of Net Realty Holding Trust, Appellants, v. FLORIDUS ENTERPRISES, INC., a/k/a Floridus, Inc., a Florida Corporation, Steven Mohler and William J. Smith, Appellees.
    No. 79-1070.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 1980.

      Patricia M. Silver of Smith, Mandler, Smith, Werner, Jacobowitz & Fried, P. A., Miami Beach, for appellants.
    Phillip E. Walker of Floyd, Pearson, Stewart, Richman, Greer & Weil, P. A., Miami, for appellee, Steven Mohler.
   PER CURIAM.

AFFIRMED.

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

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting:

I respectfully dissent.

The designated trustees of Net Realty Holding Trust timely appeal from a final judgment awarding them $2,719.00 as back rent and $430.42 in interest. The trustees unsuccessfully sought to recover $14,736.93 in rent and $845.00 in prorated taxes from their tenant, Floridus Enterprises, Inc., and from Steven Mohler and William J. Smith, the guarantors of the lease in question. The term of the lease was from November 1, 1973, through October 31, 1978. The trustees claim they are due rent from January, 1976, through the balance of the term, less a period in which the premises were occupied by a third party. Although it is not clear how the trial court arrived at the figure of $2,719.00 for back rent, recovery was undoubtedly allowed for a portion of 1976.

Testimony was uncontradicted that Flori-dus’ retail business began to decline in 1975, and the two operators-Messrs. Mohler and Smith-began to look for possible purchasers of the business. In late March of 1976 a prospective buyer, Mr. Stewart, executed a contract to purchase the business for $2,000 with a deposit of $200.

Any sale necessitated a new lease between the purchaser and Net Realty Holding Trust, or alternatively, an assignment of sub-lease with Floridus. Any assignment of sub-lease was subject to paragraph 20 of the lease which provided:

Lessee agrees not to sell, assign, mortgage, pledge, or in any manner transfer this lease or any estate or interest thereunder and not to sub-let the leased premises or any part or parts thereof and not to permit any licensee or concessionaire therein without the previous written consent of Lessor in each instance. Consent by Lessor to one assignment of this lease or to one sub-letting of the leased premises shall not be a waiver of Lessor’s rights under this Article as to any subsequent assignment or sub-letting. Lessor’s rights to assign this lease are and shall remain unqualified.
In addition, Lessee shall not allow or permit any transfer of this lease or any interest under it or any lien upon Lessee’s interest by operation of law without first obtaining written consent from Lessor, and any such transfer, lien, assignment or subletting not so consented to by Lessor, at Lessor’s option shall be invalid and of no force or effect whatsoever.
Any such sub-leasing or assignment, even with the approval of the Lessor, shall not be for less rent than the minimum rent payable hereunder at the time of such subletting, (any rent, charges, fees or sums of any nature whatsoever payable by any such sub-lessee or assign-ee to Lessee on account of such sub-leasing or assignment in excess of the rent and charges reserved in this lease shall be paid to Lessor upon demand) nor shall Lessee be relieved from liability for payment of the rental herein provided or from the obligation herein provided or from the obligation to keep and be bound by the terms, conditions and covenants of this lease. The acceptance of rent from any other person shall not be deemed to have waived any of the provisions of this Article or to be a consent to the assignment of this lease or sub-letting of the demised premises.

As can be seen, the lease required the written consent of the lessor, without any qualifying language which would have imposed upon the lessor the obligation that consent not be unreasonably withheld.

Mr. Stewart testified that he attempted several times to reach Mr. Weston, the lessor’s representative, and when finally reached Mr. Weston stated that the original parties would not be released from the lease. After two months of attempting unsuccessfully to obtain the lessor’s consent to assign, Stewart gave up and decided not to purchase the business.

It is uneontradicted that no rent was paid by Floridus for any part of 1976. When Mr. Stewart entered the picture, the tenant’s rent was three months in arrears. The testimony reflects that the lessor had a standard policy of consenting to assignment conditioned upon actual payment to the lessor of past due rent. There is testimony that a representative of the lessor communicated to the parties that the past due rent had to be made current before any assignment could be made. At the time of these communications there was no tender by the original tenant or the guarantors of the past due rent. Mr. Stewart had only deposited $200 in escrow with the real estate office handling the transaction.

This case represents an unfortunate set of facts in that a concerted effort was made by the guarantors and the prospective purchaser to obtain the lessor’s consent to assignment and eliminate any dispute between the parties. However, no such amicable resolution did occur and I am left with the cold facts of commercial life. Flo-ridus and the guarantors were in default by failing to pay the rent. Whether they were financially unable to put the rent in a current framework or whether, in their judgment they were afraid of pouring good money after bad, I shall never know. The point remains that they had the duty of eliminating the arrearage, and their failure to do so was, in my eyes, the primary cause of the parties’ failure to obtain the lessor’s consent to the subject assignment.

Whether the conduct of the lessor’s representative was reasonable is not an issue because in my judgment when a lease requires the consent of the lessor to any assignment and the lease does not contain limiting language requiring a reasonable withholding thereof, the lessor may refuse or decline to give such consent for any or no reason.

I would hold that the trustees were entitled to damages for the unexpired portion of the lease, together with any arrearage, less any rents obtained from other parties between January 1, 1976, and October 31, 1978.

      . The prospective purchaser testified he had been willing to meet the lessor’s conditions, including the demand to pay the back rent, provided he was given a definite answer as to whether assignment would be permitted. A definite answer was never given.


author: SHIVERS, Judge.

text:
    Appeal of Royal J. UNTREINER, as Sheriff of Escambia County, Florida. In re: ESCAMBIA COUNTY GRAND JURY, FALL TERM, 1978, Interim Presentment Dated February 9, 1979, Relating to Escambia County Sheriff's Department.
    No. TT-167.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1980.
    Rehearing Denied Jan. 8, 1981.

      Joe J. Harrell, of Harrell,' Wiltshire, Stone & Swearingen, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Charles Stampelos, Asst. Attys. Gen., and Lacey A. Collier, Asst. State Atty., for ap-pellee.
   SHIVERS, Judge.

Appellant, Escambia County Sheriff Royal Untreiner, appeals from an order expunging portions of a Grand Jury Presentment, contending that the entire Presentment should be repressed. We disagree and affirm.

On February 9, 1979, an Escambia County Grand Jury returned an Interim Presentment relating to the operation of the Es-cambia County Sheriff’s Department. Neither a true bill nor an indictment accompanied the Presentment. The Grand Jury had been convened in order to investigate the operation of the Escambia County Sheriff’s Department and the February 9 Presentment summarized the findings of earlier Presentments and called for either the resignation of Sheriff Royal Untreiner or his removal from office by the Governor.

On February 23, 1979, appellant filed a motion to suppress or expunge the February 9th Presentment, contending it was unlawful and improper and part of a deliberate attempt by the Grand Jury to circumvent the requirements of the law and force the resignation or removal of the Sheriff from office. The Circuit Court entered an order on December 17,1979, expunging portions of the Presentment but refusing to repress the entire Presentment. On appeal from this order, appellant maintains that the Circuit Court erred in refusing to suppress the entire Presentment.

Appellant seeks to repress the entire Presentment under Section 905.28, Fla.Stat. (1977). Section 905.28(1) provides that a Grand Jury Presentment relating to an individual which is not accompanied by an indictment shall not be made public or published until the individual is provided fifteen days to file a “motion to repress or expunge the report or that portion which is improper and unlawful.” In other words, only unlawful or improper portions of the Presentment may be repressed or expunged. As used in the statute, the term “unlawful” is to be construed to mean the Presentment or portions of the Presentment are outside the lawful ambit of Grand Jury authority and the term “improper” is to be taken to denote a report of matters which lack factual foundation in the record. Miami Herald Publishing Company v. Marko, 352 So.2d 518 (Fla.1977).

Appellant does not specifically challenge the lawful nature of the Grand Jury investigation into the operation of the Escambia County Sheriff’s Department. Nonetheless, an investigation of the operation of the Sheriff’s Department is clearly within the scope of the power and authority of the Grand Jury. A grand jury’s investigatory authority extends beyond the realm of criminal activity to include inquiry into the general activities of public institutions and personnel. In re Report of Grand Jury, 152 Fla. 154, 11 So.2d 316, 318 (1943); Marko, supra, at 521. Therefore, since the Presentment deals only with the operation of the Sheriff’s Department, the Presentment is within the lawful ambit of the Grand Jury authority and appellant is not entitled to complete repression of the Presentment under the first statutory criterion.

As to the issue of whether the Presentment should be entirely repressed because it contains improper matter, a reading of the Presentment indicates that it meets the statutory test of propriety. Obviously, there is no clear line between what is proper material and what is improper material. “What is clear, however, is that the focus of judicial inquiry on a motion to repress under this statute does not turn on some amorphous notion of ‘fairness’, but must be addressed to the germaneness and factual foundation of the particular recommendations contained in the report.” Marko, supra, at 521.

Appellant does not directly argue that the Presentment contains improper material, but contends that the Grand Jury entered upon a course of action aimed at the resignation or removal of the Sheriff because of political vindictiveness. However, a Grand Jury may legally recommend the removal of public officials from office in terms of a Presentment describing misconduct, errors, and incidences in which public funds are improperly employed. Owens v. State, 59 So.2d 254 (Fla.1952); In re Report of Grand Jury, supra; Marko, supra. The Grand Jury’s recommendation in the February 9, 1979, Presentment is consistent with the Presentment’s findings of fact regarding the Sheriff’s operation of the Sheriff’s Department. The recommendation is based upon stated facts constituting specific examples of misconduct which were found by the Grand Jury’s lawful inquiry into the operation of the Sheriff’s Department. The investigation and recommendation is clearly germane to the public’s concern for proper and adequate law enforcement and the report properly recommends future action to avoid the recurrence of similar misconduct. Based upon the record, appellant has failed to show the Presentment’s recommendation is not based upon the factual foundation of the Presentment itself.

Although we might have disagreed with the trial judge’s selection of the words or portions of the Presentment which he found should be expunged, our review of the trial judge’s order in this respect is frustrated by deficiencies in the motion presented to the trial judge. The motion to repress or expunge contained only a general attack upon the lawfulness and propriety of the Presentment, and failed to recite or identify the particular portions of the Presentment which were claimed to be improper or unlawful. Unless the exact words or phrases claimed to be objectionable are specifically pointed out to the trial judge, we are unable to determine what the trial judge’s ruling would have been, and we have no basis upon which we can find error in his ruling expunging only certain words or parts of the Presentment. Since this matter was presented to the trial judge in effect upon an “all or nothing” basis, we have no alternative but to affirm.

Therefore, the order expunging portions of the Presentment but refusing to repress the entire Presentment is affirmed.

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


author: PER CURIAM.

text:
    Paul P. SIVO and Doris L. Sivo, Appellants, v. Rui COSTA-SILVA and M. Fatima Costa-Silva et al., Appellees.
    Nos. 80-501, 80-502.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Rehearing Denied Jan. 9, 1981.
    Angelo A. Ali and Mark R. Baer, Miami, for appellants.
    Berkell & Strauss and Ray Strauss, North Miami Beach, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Jackson v. Holmes, 307 So.2d 470 (Fla. 2d DCA 1975), cert. denied 318 So.2d 404 (Fla.1975).


text:
    Teddy WHITTINGTON, Appellant, v. WITHERS TRANSFER & STORAGE OF CORAL CABLES, INC., Appellee.
    No. 80-578.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Rehearing Denied Jan. 9, 1981.

      Urich & Shenkman and Robert Urich, Miami, for appellant.
    Julia J. Roberts, Miami, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the summary final judgment rendered adverse to plaintiff below, for defendant’s failure to conclusively negative legal liability, and its inability to demonstrate the absence of material factual issues. Vila v. B.F. Goodrich Co., 383 So.2d 766 (Fla.3d DCA 1980).

A showing that the defendant’s employees are instructed to be courteous and polite does not obviate plaintiff’s claim that the alleged tortious behavior was conducted in the course and scope of their employment.

Reversed..


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Lillian CALERO, etc. et al., Appellees.
    No. 80-755.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1980.
    Rehearing Denied Jan. 9, 1981.
    Spencer & Taylor and Arthur H. Taylor, Miami, for appellant.
    Schwartz, Klein & Steinhardt and Norman S. Klein, Weissenborn & Burr and Leonard F. Burr, Miami, for appellees.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. United States Fidelity & Guaranty Company v. Perez, 384 So.2d 904 (Fla. 3d DCA 1980).


author: HURLEY, Judge.

text:
    In re ESTATE of George E. BEEMAN, Deceased.
    No. 78-834.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1980.

      Glenn R. Mee of Andrews, Voorheis, Lehrer & Baggett, Fort Lauderdale, for appellant.
    Robert J. Friedman, Hallandale, for ap-pellee.
   HURLEY, Judge.

This appeal presents the question whether the Florida Rules of Probate and Guardianship Procedure, as presently structured, permit the court to retain jurisdiction to cure judicial error by amending, altering or modifying a final order after its rendition. We answer in the negative.

During the administration of the estate of George E. Beeman, a controversy arose over attorneys’ fees. Consequently, counsel for the estate filed a petition to enforce payment of attorneys’ fees. The court conducted an evidentiary hearing and, on February 16, 1978, entered an order awarding attorneys’ fees in the sum of $17,100.00. The amount of the award was based on a fee contract between the original personal representative and the law firm of Andrews, Voorheis, Lehrer and Baggett.

On February 28, 1978, appellee/successor personal representative filed a petition for rehearing. Again, the court conducted an evidentiary hearing and, on March 16, 1978, entered an amended order reducing the amount of attorneys’ fees to $12,050.00. The amended order indicated that the February 16th order was vacated and set aside and that the new award was based upon quantum meruit and upon the criteria established by Section 733.617, Florida Statutes (1977). It is the validity of the March 16th order which is at issue on this appeal.

We preface our discussion by noting that the proceeding below was not designated an “adversary proceeding.” The authorization for such designation is found in Rule 5.025, Fla.R.P. & G.P., which states:

(a) The following shall be deemed adversary proceedings:
(1) Proceedings to revoke a will, probate a lost or destroyed will, probate a later discovered will, determine beneficiaries, construe a will, cancel a charitable bequest, partition property for the purposes of distribution, determine and award the elective share; and
(2) Any other proceeding which shall be determined by the court to be an adversary proceeding. (Emphasis supplied.)

Since attorneys’ fees are not contained in the listing under subsection (a)(1), the proceeding below could have been an “adversary proceeding” only if so classified by the court pursuant to subsection (a)(2).

The characterization of the proceedings is critically important for it determines which rules of court shall govern. Subsection (b)(2) of Rule 5.025 indicates that the rules of civil procedure shall govern adversary proceedings. Included, of course, would be Rule 1.530, Fla.R.Civ.P., which authorizes motions for rehearing and motions to alter or amend a judgment.

Since the trial judge in the case at bar did not determine the proceeding to be an adversary proceeding, the rules of civil procedure are inapplicable; our review is therefore confined to the perspective of the Florida Rules of Probate and Guardianship Procedure. Absent a trial court’s determination that a proceeding is an adversary proceeding, and excepting situations of waiver or estoppel, an appellate court will not apply the adversary proceeding label for the first time on appeal. Substantive rights are involved and, therefore, retroactive designation is impermissible.

Applying the definition for finality found in Rule 5.100, Fla.R.P. & G.P., there can be no doubt that the trial court’s order of February 16th was a final order subject to appeal. Moreover, because the Florida Rules of Probate and Guardianship Procedure do not presently contain a provision allowing for a motion for rehearing, such a motion is a nullity which, if filed, will not toll the time for filing an appeal. In re Malone, 365 So.2d 1059 (Fla. 2d DCA 1978); Val Bostwlck v. Estate of Cowan, 326 So.2d 454 (Fla. 1st DCA 1976); In re Estate of Crissey, 286 So.2d 585 (Fla. 4th DCA 1973).

In the case at bar, appellee filed a petition for rehearing on February 28, 1978, twelve days after the February 16th order. The court entered its amended order on March 16,1978, twenty-eight days after the original order. The question on appeal then, is whether the trial court, under the rules of probate and guardianship procedure, had jurisdiction to amend its order. To obtain the answer we must ascertain the precise moment at which the trial court lost jurisdiction to alter, modify or amend its order.

At common law a trial court retained jurisdiction to correct or modify a judgment until the time for taking an appeal expired, or until an appeal was in fact taken, whichever occurred first. Shelby Mutual Insurance Co. v. Pearson, 236 So.2d 1, 5 (Fla. 1970) (Ervin, C. J., dissenting). Florida seemed to adopt the common law rule in Floyd v. State ex rel. LaVigne Electric Co., 139 So.2d. 873 (Fla.1962), when the court held that a trial judge had the authority to vacate summary judgments previously entered, despite the fact that there was no provision of rule or statute giving the court power to do so. However, Kippy Corp. v. Colburn, 177 So.2d 193 (Fla.1965), firmly rejected the common law view by limiting Floyd to its facts and stating the broad proposition that both trial and appellate courts are limited by rule and statute as to the time and manner in which the power to correct errors in final orders may be exercised. The court characterized the function of correcting orders in final judgments as jurisdictional and held:

If the correction of error is not sought within the time and manner provided the court involved has no authority to act and insofar as that court is concerned the matters decided are finally ended.
. . . Unless a proper motion or petition is filed within the allotted time the order becomes absolute and except as provided by the rules . . . the trial court has no authority to alter, modify or vacate the substance of the order. Id. at 196-97.

The Supreme Court reaffirmed Kippy Corp. five years later in Shelby Mutual Insurance Co. v. Pearson, supra, and said:

Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment. 236 So.2d at 3.

See also Denny v. Denny, 334 So.2d 300 (Fla. 1st DCA 1976); Allen v. Allen, 230 So.2d 29 (Fla. 1st DCA 1969).

Since the Florida Rules of Probate and Guardianship Procedure do not presently provide for motions for rehearing and inasmuch as the proceeding to determine attorneys’ fees was not determined to be an adversary proceeding and thus made subject to the Florida Rules of Civil Procedure, particularly Rule 1.530, we hold that the trial court’s order of February 16, 1978, became absolute upon its rendition and thereafter the court was without jurisdiction to alter, modify or amend it.

Though the time sequence is different, the court reached the same conclusion in In re Estate of Armistead, 240 So.2d 830, 831 (Fla. 1st DCA 1970), and held:

In the absence of a rule promulgated by competent authority authorizing a petition for rehearing or motion for new trial subsequent to the entrance of a final order, a probate court loses jurisdiction as to that order save for those matters involving the inherent power and jurisdiction of the probate court as discussed in State ex rel. Booth v. Byington, 168 So.2d 164 (Fla.App. 1st 1964).

State ex rel. Booth v. Byington, supra, ruled that a probate court has inherent power to revoke probate of a will where a later will or codicil is discovered, where newly discovered evidence shows that the probated will was forged, or that its probate was procured by fraud. Similarly, Val Bostwick v. Estate of Cowan, supra, held that a probate court is not precluded in a proper case from relieving a party from a final judgment or order under Rule 1.540(b), Fla.R.Civ.P., upon the grounds and within the time limit set forth therein.

We are cognizant of the maxim than an order of the probate court comes to this court clothed with a presumption of correctness and will be affirmed if it can be supported on any theory. Beck v. Beck, 383 So.2d 268 (Fla. 3d DCA 1980). Therefore, despite the fact that appellee’s February 28th petition was captioned as a “petition for rehearing,” we have reviewed its grounds to determine whether in substance it is a motion for relief from judgment pursuant to Rule 1.540(b), Fla.R.Civ.P. In this respect, it must be remembered that Rule 1.540(b) is not a substitute for appellate review. Only those orders which result from oversight, neglect or accident, as opposed to judicial error, may be remedied under Rule 1.540(b). Fiber Crete Homes, Inc. v. Division of Administration, 315 So.2d 492 (Fla. 4th DCA 1975); Constant v. Tillitson, 214 So.2d 91 (Fla. 1st DCA 1963); In re Estate of Weymer, 199 So.2d 495 (Fla. 4th DCA 1967), cert. discharged sub nom. Scott v. Broward National Bank, 207 So.2d 673 (Fla.1968).

Though the grounds set forth in paragraphs 2, 3 and 4 of appellee’s petition are clearly allegations of judicial error which fall outside the purview of Rule 1.540(b), paragraph 1 presents a closer question. It alleges:

That the Order entered on said Petition was based upon an alleged contractual obligation between the Petitioners and Catherine T. Beeman, and at the hearing on said Petition, the Petitioner waived his right to proceed on the contract and instead, petitioned for a reasonable fee to be established on a quantum meruit basis. Accordingly, the Court erred in awarding the fee based upon the contract.

Putting the truth of the allegation aside for the moment, it implies a mistake of fact, viz., that the trial court inadvertently failed to recall that the contract count had been waived or withdrawn and, as a consequence, the court’s judgment was predicated on a factual error. Nonetheless, we believe the allegation must be classified as a judicial error. We adopt the test formulated by the Wyoming Supreme Court in Spomer v. Spomer, 580 P.2d 1146, 1149 (1978):

The key factor is whether or not the court reached a decision in the intentional or purposeful exercise of its judicial function. If the pronouncement reflects a deliberate choice on the part of the court, the act is judicial; errors of this nature are to be cured by appeal.

We acknowledge that our decision today is in conflict with our earlier holding in In re Estate of Weymer, supra. There, pursuant to the authority of Rule 1.540(b), we upheld an amended order which deleted a requirement that an executor pay a guardian the legal rate of interest in addition to the proceeds of an insurance policy. Upon reconsideration, we believe Judge Walden was correct in his dissent and, therefore, we recede from our holding in In re Estate of Weymer.

Accordingly, the order of March 16, 1978 is quashed and the cause is remanded to the trial court with instructions to reinstate the order of February 16, 1978.

DOWNEY and GLICKSTEIN, JJ., concur.

      . Effective January 1, 1981, Rule 5.020(d), as amended, Fla.R.P. & G.P., provides for motions for rehearing from any order or judgment. In re Florida Rules of Probate and Guardianship Procedure, 387 So.2d 949 (Fla. 1980).

      .The text of appellee’s petition for rehearing is as follows:
      (Caption)
      PETITION FOR RE HEARING
      ATLANTIC NATIONAL BANK OF JACKSONVILLE, REGIONAL TRUST SERVICE OFFICE, as Guardian for CATHERINE T. BEEMAN, PHYSICALLY INCAPACITATED, moves this Court for a re-hearing on the Petition to Enforce Payment of Attorneys Fees filed by the law firm of ANDREWS, VOORHEIS, LEHRER & BAGGETT, and as grounds therefore says:
      1. That the Order entered on said Petition was based upon an alleged contractual obligation between the Petitioners and Catherine T. Beeman, and at the hearing on said Petition, the Petitioner waived his right to proceed on the contract and instead, petitioned for a reasonable fee to be established on a quantum meruit basis. Accordingly, the Court erred in awarding the fee based upon the contract.
      2. Having elected to proceed on a quantum meruit basis, the Court failed to find that the attorneys fee was reasonable. Accordingly, the Court erred in awarding such a fee, without a specific finding of reasonableness.
      3. The Petitioner’s allegation of a contract for the payment of fees and the refusal of the personal representative to abide by the terms of the contract, requires the Petitioner to proceed in an action at law for breach of contract. The Court erred by enforcing the contract without affording the Personal Representative an opportunity to have a jury determine the propriety of said contract and the scope of the terms, conditions and nature of same. 3 Fla.Jur. 402, Section 68, Attorneys at Law, Questions for Court and Jury.

      4.The Petition sought to enforce a contract for fees entered into at a time substantially subsequent to the undertaking of the attorney client relationship and the Petitioner has the affirmative duty to prove that the agreement is fair, reasonable and freely and voluntarily executed with the full understanding of the client, both parties having equal knowledge as to all of the facts and circumstances of the agreement. The Court, failing to find that the fee was reasonable, erred in enforcing the contract. 3 Fla.Jur. 384, Section 52, Attorneys at Law, Contracts Made During Attorney Client Relation.

      WHEREFORE, ATLANTIC NATIONAL BANK OF JACKSONVILLE, Guardian of the property of CATHERINE T. BEEMAN, PHYSICALLY INCAPACITATED, moves this Court for re hearing.
      I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to the following on this 27th day of February, 1978: ANDREWS, VOORHEIS, LEHRER & BAG-GETT
      Attorneys for Estate
      19 Southeast Third Avenue
      Ft. Lauderdale, FL 33301
      s/s Robert J. Friedman
      ROBERT J. FRIEDMAN,
      Attorney for ATLANTIC NATIONAL BANK OF JACKSONVILLE, Guardian of the property of CATHERINE T. BEEMAN, Physically Incapacitated.

      . The stipulated statement of facts accompanying the record on appeal unequivocally demon-strafes that appellant did not waive or withdraw its count to enforce the fee contract.


text:
    STATE of Florida, Appellant, v. Randall Glenn ROWLAND, Appellee.
    No. 79-588.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1980.
    Michael J. Satz, State Atty., and Patti Englander, Asst. State Atty., Fort Lauder-dale, for appellant.
    Steve Lange of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal by the State from an order of discharge entered by the trial court on speedy trial grounds. The order is reversed on the authority of Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), and State v. Van Johnson, 386 So.2d 1316 (Fla. 4th DCA 1980).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

ANSTEAD, MOORE and BERANEK, JJ., concur.


text:
    John Mark VICKERY, Appellant, v. STATE of Florida, Appellee.
    No. 79-2186.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1980.
    Richard L. Jorandby, Public Defender and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of Haselden v. State, 386 So.2d 624 (Fla. 4th DCA 1980).

DOWNEY, HURLEY, JJ., and UP-CHURCH, JOHN J., Associate Judge, concur.


text:
    TOYOTA MOTOR COMPANY, LTD., Petitioner, v. Betty J. MOLL, as Personal Representative of the Estates of Wendy Jane Moll, Deceased, Pamela May Moll, Deceased, and Denise Ann Moll, Deceased, Respondent.
    No. 80-1412.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1980.
    James A. Edwards for J. Richard Caldwell, Jr., of Rumberger, Kirk & Caldwell, Orlando, for petitioner.
    Jack H. Vital, III of Simons & Schlesinger, Fort Lauderdale, for respondent.
   PER CURIAM.

Petitioner seeks review of the denial of its motion for a protective order. Respondent sought production of certain materials and information relative to the design of petitioner’s 1973 Toyota Corolla. Petitioner’s motion for a protective order requested the trial court to (a) prohibit respondent from disseminating said materials and information to anyone other than the respondent’s attorneys and expert witnesses; (b) limit any such dissemination to the purposes of this lawsuit; (c) and have any such materials produced returned to petitioner at the conclusion of the suit. Petitioner alleged that the information and material in question is “proprietary in nature and constitutes ‘trade secrets’ and that dissemination of such material and information would be detrimental to petitioner.”

At the trial court hearing on the motion for protective order petitioner failed to prove the allegations of the motion regarding trade secrets, and thus petitioner failed to show good cause for the issuance of a protective order. However, at oral argument counsel for respondent agreed to a stay of the dissemination of said information and material, pursuant to a suggestion for such a stay at oral argument, until the trial court rules on petitioner’s further motion for protective order (as to specific items produced) presently pending in the trial court.

Accordingly, we deny the petition for cer-tiorari, but direct that any dissemination of the information and material be stayed until December 22, 1980, or until such time as the trial court has ruled upon petitioner’s pending motion for a protective order.

DOWNEY and HURLEY, JJ., and UP-CHURCH, JOHN J., IV, Associate Judge, concur.


author: McCORD, Judge.

text:
    Brigette RABIDEAU et al., and Monika F. Jennings et al., Appellants, v. The STATE of Florida and Oscar Sambrine, Appellees.
    No. OO-341.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    Rehearing Denied Jan. 13, 1981.
    Arnold R. Ginsberg, of Horton, Perse & Ginsberg, and Brumer, Cohen, Logan, Kan-dell & Redlus, Miami, for appellants.
    Ronald W. Brooks and Mick Callahan of Brooks & Callahan, Tallahassee, for appel-lees.
   McCORD, Judge.

This appeal is from a final summary judgment granted in favor of appellee, The State of Florida. We affirm.

On April 7,1976, while operating a motor vehicle owned by appellee, The State of Florida, appellee, Oscar Sambrine, struck and killed Raymond Rabideau and Larry Jennings. Sambrine was employed as an investigator by the Secretary of State’s Office and was supplied with an automobile for use in his work. On the day of the accident, after leaving work, he stopped at a bar and consumed six or seven drinks, leaving the bar at approximately 9:30 p. m. The accident occurred while he was driving home. This action for wrongful death was brought against the State and Sambrine by the survivors of Jennings- and Rabideau. The State moved for summary judgment, asserting that at the time of the accident, Sambrine was outside the scope and course of his employment and, therefore, the State is protected from liability under the doctrine of sovereign immunity. In its order granting the State’s motion, the trial court found no genuine issue of material fact as to the State’s liability; that Sambrine was not acting within the scope of his employment when the accident occurred, and § 768.28, Florida Statutes, which waives sovereign immunity in certain instances, only waives it as to a state employee who is “acting within the scope of his office of employment”; that Sambrine was not so acting when the incident occurred. We agree.

Appellants contend (1) that since the State allowed Sambrine to use the car 24 hours a day as part of his employment, he was not outside the scope of his employment when using the car beyond working hours and (2) that under Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), sovereign immunity only exists as to planning activities of the State; that the act makes the State liable for tort claims in the same manner and to the same extent as a private individual under like circumstances; that the State having given this broad waiver of sovereign immunity, it is liable under the dangerous instrumentality doctrine for Sambrine’s operation of the State’s automobile.

As to appellant’s contention that Sambrine was acting within the scope and course of his employment when the accident occurred, he testified in his deposition that although he was allowed to take the state-owned vehicle home with him, he was aware that it was intended for business use only and that he was not allowed to use the vehicle for personal use; that he understood that he was not allowed to use the vehicle after drinking and playing pool at a private club. In Burleson v. Stark, 357 So.2d 1038 (Fla. 4th DCA 1978), our sister court of the Fourth District, quoting from Morrison Motor Co. v. Manheim Services Corp., 346 So.2d 102 (Fla. 2d DCA 1977), said:

An employee’s conduct is within the scope of his employment only if it is the kind he is employed to perform, it occurs substantially within the time and space limits of the employment and it was activated at least in part by a purpose to serve the master.

We agree with that statement. As applied to this case, Sambrine had left his employment and was not serving his master, the State, on his trip home via a bar and pool hall where he consumed a number of drinks.

Section 768.28, Florida Statutes, provides in pertinent part as follows:

(1) In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act.
(2) * * *
(3) * * *
(4) * * *
(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, ... (Emphasis supplied.)

The foregoing statute waiving sovereign immunity contains the specific limitation that the State is only liable for the tort of its employee while he is acting within the scope of his office of employment under circumstances in which the State, if a private person, would be liable to the claimant. Since § 768.28 contains this specific limitation, we are unable to construe subsection (5), which does not contain the same statement relative to state employees, to nullify such qualification to the State’s liability. Certainly the legislature did not intend in one breath to establish this qualification and in the next to extinguish it. This limitation on the State’s liability for the torts of its employees is necessarily applicable to the dangerous instrumentality doctrine where someone is injured by a state employee who negligently operates an automobile entrusted to him by the State. Had the legislature intended to subject the State to liability for such negligent operation of a state vehicle by a state employee, it would have so provided in the waiver.

The Federal Tort Claims Act contains language almost identical to the Florida Waiver of Immunity Statute. It provides that actions may be brought against the government:

... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred . . . [Title 28 U.S.C.A. § 1346(b).]
******
The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. [Title 28 U.S.C.A. § 2674.]

In construing the Federal Tort Claims Act in a case involving the same point of law as that presented here, the United States District Court, Northern District of Florida in Cropper v. United States, 81 F.Supp. 81 (N.D.Fla.1948), said:

The evidence in the case clearly established plaintiffs right to recover for the injuries suffered by him, if this court has jurisdiction of the suit. The evidence also clearly shows that Robbins had deviated from the instructions given him in the morning when he left the Army Base with the staff car. However, when he left Eglin Field he was in lawful possession of the Army staff car, operating same with the knowledge and consent of his superior officer. Under the substantive law of Florida knowledge and consent of the owner of the use of an automobile on the highway by another imposes liability for the negligent operation of it, no matter where the driver goes. See D’Allessandro, et al. v. Bechtol, 5 Cir., 104 F.2d 845 and Florida cases there cited. See also Boggs et aI. v. Butler, 129 Fla. 324, 176 So. 174.
The Tort Claims Act, in defining the conditions under which the United States is liable, stated that such liability accrues “under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death, in accordance with the law of the place where the act or omission occurred.” Counsel for defendant contends that this language must be read with the other provision of the law limiting the liability of the government to those cases only where its employee was “acting within the scope of his office or employment”. There is no question that had the driver of the automobile in question been an employee of “a private person” the defendant by whom he was employed would be liable in this case.
In construing the Tort Claims Act, however, it must be kept in mind that the government has waived sovereign immunity to suits only as to claims falling squarely within the four corners of the Act. To hold that claims arising under local law imposing liability upon an employer for conduct of an employee outside the scope of his employment would materially enlarge the qualifying phrase of the Tort Claims Act that the government may be sued for the negligent or wrongful act or omission of any employee of “the Government while acting within the scope of his office or employment”. The views of this court on this issue are so well stated by District Judge Mathes in Long v. United States, D.C., 78 F.Supp. 35, that this court considers it unnecessary to do more than refer to that case and adopt the views therein expressed as its own.
For reasons stated, this action must be dismissed for want of jurisdiction over the subject matter of this suit, without prejudice to plaintiff to seek compensation by the route available to all claimants in those cases where the sovereign has not waived its immunity to be sued. (Cropper, at 82, 83.)

The United States Court of Appeal, Fifth Circuit, ruled to like affect in LeFevere v. United States, 362 F.2d 352 (5th Cir. 1966). See also Hubsch v. United States, 174 F.2d 7 (5th Cir. 1949); King v. United States, 178 F.2d 320 (5th Cir. 1949); and Pacific Freight Lines v. United States, 239 F.2d 191 (9th Cir. 1956).

Appellant’s reliance upon Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), for the proposition that sovereign immunity only exists as to planning activities of the State, is misplaced. The Supreme Court was there dealing with planning activities versus operational activities, and it did not touch upon the limitation of the statute in relation to tortious activities of a state employee.

AFFIRMED.

MILLS, C. J., concurs.

BOOTH, J., dissents (without written opinion).


text:
    BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. Richard DAMORE, Appellee.
    No. SS-101.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    Rehearing Denied Jan. 12, 1981.
    C. Randal Morcroft, Fort Lauderdale, for appellant.
    E. Hugh Chappell, Jr., of McCrory, Chap-pell, Brandt & Gore, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The Broward County Board of County Commissioners appeals the deputy commissioner’s order awarding benefits to Richard Damore. The Board raises three points on appeal only one of which merits our discussion. The deputy commissioner found that Damore reached maximum medical improvement on April 24, 1979, and yet awarded temporary total disability benefits for the period from August 4, 1978, until May 1, 1979. The date of maximum medical improvement marks the end of temporary disability and the beginning of permanent disability. Corral v. McCrory Corporation, 228 So.2d 900 (Fla.1969); Metz Package Store # 4 v. Ransom, 9 FCR 46 (Fla.1974), cert. denied, 310 So.2d 17 (Fla.1975). Accordingly, the deputy commissioner erred in awarding temporary total disability benefits beyond April 24, 1979. The order is reversed and the matter remanded with instructions to enter an order consistent with this opinion.

MILLS, C. J., and McCORD and THOMPSON, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    William H. STEHLING, Appellant, v. STATE of Florida, Appellee.
    No. WW-95.
    District Court of Appeal of Florida, First District.
    Dec. 4, 1980.
    Rehearing Denied Jan. 12, 1981.
    Michael J. Minerva, Public Defender, and Louis G. Carres and Theodore E. Mack, Asst. Public Defenders, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky and Gregory Smith, Asst. Attys. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Stehling appeals from a judgment convicting him of trafficking in more than 400 grams of cocaine in violation of Section 893.135(l)(b), Florida Statutes (1979). The judgment was entered on Stehling’s nolo contendere plea reserving his right to appeal the trial court’s denial of a motion to dismiss the information on the ground that Section 893.135 unconstitutionally burdens the accused’s privilege against self-incrimination, secured by the Fifth Amendment to the United States Constitution. Subsection (3) of the statute authorizes, on the state attorney’s motion, a reduction or suspension of the minimum mandatory sentence otherwise to be imposed-15 years for trafficking in 400 grams or more of cocaine-if the convicted defendant

. . . provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, co-conspirators, or principals....

Stehling was not subjected to the 15 years minimum mandatory sentence which he says coerces relinquishment of the Fifth Amendment privilege against self-incrimination, because after being tried, found guilty, and adjudicated guilty, Stehling provided the State the prescribed “substantial assistance” and was sentenced to five years probation on condition that he serve six months imprisonment. On this account the State urges Stehling has no standing to attack the statute, because he has not been subjected to a minimum mandatory sentence, he has not been punished for remaining silent, and he has profited by the statute which now he contends is unconstitutional. See, e. g., State v. Hagan, 387 So.2d 943 (Fla.1980). But because Stehling challenges the entire statute under which he stands convicted, reasoning that subsection (3) is an integral and inseparable part whose invalidity condemns the whole, we recognize Stehling’s standing to attack the statute, the predicate for his conviction, on the narrow ground that it is facially unconstitutional for coercing self-incrimination.

We also acknowledge, though Stehl-ing’s “substantial assistance” to the authorities is not evidenced or described here, that in eliciting a defendant’s statements concerning his “accomplices, accessories, co-conspirators, or principals,” the statute does tend to induce self-incrimination, at least of the offense for which the defendant is to be sentenced. That the statute offers its inducement to the defendant at a time when he has already been adjudged guilty, either on a plea of guilty or on a verdict, does not dissolve his constitutional privilege against self-accusal concerning that crime. The privilege continues until sentence has been pronounced and an appeal has been foregone or completed. See King v. State, 353 So.2d 180 (Fla.3d DCA 1977); Annot., “Plea of Guilty or Conviction as Resulting in Loss of Privilege Against Self-Incrimination as to Crime in Question,” 9 A.L.R.3d 990 (1966); cases collected in Commonwealth v. Rodgers, 372 A.2d 771, 780 (Pa.1977).

Although we affirm both that Stehl-ing has standing to attack the statute and that the Fifth Amendment privilege against self-incrimination endures in the post-conviction, presentence context, we find no merit in Stehling’s constitutional position. The case of Stehling himself, who pleaded not guilty and was tried by a jury, illustrates that Section 893.135 extracts no penalty for a defendant’s refusal to plead guilty; the prescribed minimum mandatory penalties apply irrespective of whether guilt is determined by plea or by verdict, and the statutory incentive of a diminished sentence is offered in either case. Nor is the relinquishment of an appeal on the merits a condition of securing the benefits offered the defendant by subsection (3). In self-incrimination terms, therefore, the price paid by one convicted under and seeking -the sentencing benefits of Section 893.-135 is hardly as great as the price paid by one charged under some other criminal statute who is induced by his counsel’s bargaining with the prosecutor to plead guilty and incriminate himself and others in order to secure a reduced charge or favorable sentence. Yet an inducement of that sort, given as an alternative to more unpleasant consequences which would naturally flow from judicial events, is not regarded as an undue burden on the privilege against self-incrimination. See Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Those decisions teach that when the defendant retains a real choice between fully exercising all his constitutional rights and privileges and relinquishing some of them to avoid unpleasant consequences that may naturally occur if the system proceeds unchecked, the defendant’s rights and privileges are not unduly burdened by the difficulty of the choice. Section 893.135 does not unconstitutionally compromise the accused’s privilege against self-incrimination.

AFFIRMED.

THOMPSON, J., and WOODIE A. LILES (Retired), Associate Judge, concur.


text:
    Blanca CAMPOS, Appellant, v. DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellees.
    No. TT-164.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1980.
    Rehearing Denied Jan. 12, 1981.
    L. Barry Keyfetz of Keyfetz & Poses, P.A., Miami, for appellant.
    Steven Kronenberg of Pyszka, Kessler & Adams, Miami, for appellees.
   PER CURIAM.

Considering the deputy commissioner’s order as reserving jurisdiction to consider costs, it is

AFFIRMED.

ROBERT P. SMITH, Jr., and THOMPSON, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.


author: BASKIN, Judge.

text:
    Robert ASHENOFF, Anthony Restucci and Douglas Ray Emmons, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1960.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Rehearing Denied Jan. 8, 1981.
    Daniel D. Mazar, South Miami, Charles I. Poole, Miami, for appellants.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Defendants were convicted by a jury of conspiracy to sell cannabis and acquitted of possession with intent to sell cannabis. They now appeal their convictions and sentences contending the evidence failed' to support the charge of conspiracy. They also challenge the court’s denial of their motions to suppress. We agree that the state failed to establish a conspiracy and reverse.

Officer Green of the Broward County Sheriff’s Office, relying on information furnished by a confidential informant, met with Dade County officers in furtherance of an undercover investigation involving the sale of a kilo of cocaine and a quantity of marijuana. Officer Green, his partner, and the confidential informant went to the residence of Herbert Turnbull where they discussed price and quantity of the marijuana. Their discussions were intercepted and recorded by means of a body bug. Officer Green, his partner, the confidential informant, and Turnbull then proceeded to another location where they discussed with two other people, Burkley and Burnsed, the purchase of 500 pounds of marijuana and a quantity of cocaine. These conversations were also recorded. Next, Officer Green, his partner, Turnbull, Burnsed, Burkley, and the confidential informant went to defendant Restucci’s residence. There, Officer Green discussed cocaine with Burnsed and marijuana with another person, Hara-pas, and defendant Restucci. Defendants Ashenoff and Emmons arrived and also discussed marijuana, but money was not mentioned and no arrangements were made. Emmons talked about the best type of transportation and Ashenoff discussed the marijuana’s ultimate destination.

Officer Green and his partner left defendant Restucci’s home and followed a car occupied by Burnsed, Ashenoff, and Em-mons to Palazzo’s residence where Burnsed indicated the marijuana would be purchased. Defendant Restucci stayed behind at his home. Palazzo led Officer Green, Green’s partner, Burnsed, and Ashenoff outside to a truck which Palazzo opened to reveal a large quantity of marijuana. Defendant Emmons had remained inside the house. Palazzo, Burnsed, and Officer Green selected and weighed the bales of marijuana and handed them to Ashenoff outside the truck. At this point, the police arrived. Although others were arrested, only Ashenoff, Emmons, and Restucci are parties to this appeal.

The jury returned verdicts finding defendants guilty of conspiracy to sell cannabis, but acquitting them of manufacture or possession with intent to sell, manufacture or deliver cannabis.

Applying the guidelines enunciated in prior cases on this issue, we examine the evidence. Testimony discloses that defendant Restucci discussed marijuana with Officer Green and made a phone call which was not overheard. He did not participate directly in the arrangements but did direct the undercover police officers and confidential informant to the Palazzo house. He did not accompany them.

Defendant Emmons talked with Officer Green regarding the best type of vehicle to use to transport the marijuana. He drove to Palazzo’s residence where he engaged in a conversation with defendant Ashenoff, Burnsed, and Palazzo, which Officer Green could not hear. Emmons stayed inside the house and did not accompany the other men when they went outside to the truck.

Defendant Ashenoff joined in the marijuana-related discussions with Officer Green. He also drove to Palazzo’s residence, joined in the discussion there, which Officer Green could not hear, and accompanied Officer Green, Palazzo, and Burnsed to the truck where he helped unload the marijuana bales.

These acts may well have presented a prima facie case of aiding and abetting in the offense of possession with intent to distribute marijuana, but they do not establish the crime of conspiracy. Conspiracy under Section 777.04(3), Florida Statutes (1977) is defined as an express or implied agreement or understanding between two or more persons in order to accomplish a criminal offense. Ramirez v. State, 371 So.2d 1063 (Fla. 3d DCA 1979); see e. g., State v. Burkett, 344 So.2d 868 (Fla. 2d DCA 1977); § 777.04(3), Fla.Stat. (1977); 16 Fla.Jur.2d Conspiracy § 1547 (1979). Both an agreement and an intention to commit the offense are necessary elements. King v. State, 104 So.2d 730 (Fla.1958). Although proof of a conspiracy may be inferred from appropriate circumstances, Resnick v. State, 287 So.2d 24 (Fla.1973); Manner v. State, 387 So.2d 1014 (Fla. 4th DCA 1980), and proof of a formal agreement is not necessary, Borders v. State, 312 So.2d 247.(Fla. 3d DCA 1975), a conspiracy may not be inferred from aiding and abetting alone. Boyd v. State, 389 So.2d 642 (Fla. 2d DCA 1980). “The tendency to make the crime so elastic, sprawling and pervasive as to defy meaningful definition” must be avoided. Ramirez v. State, supra, at 1066, citing Goldberg v. State, 351 So.2d 332 (Fla.1977).

The applicable law of conspiracy has been stated by this court:

Conspiracy is a separate and distinct crime from the offense which is the object of the conspiracy. Swindle v. State, 254 So.2d 811 (Fla. 2d DCA 1971); Sheldon v. State, 178 So.2d 34 (Fla. 3d DCA 1965). Moreover, conspiracy is one step removed from an attempt to commit the offense which is the object of the conspiracy, and, thus is two steps removed from the actual commission of the substantive offense. Hutchinson v. State, 315 So.2d 546, 549 (Fla. 2d DCA 1975). As such, evidence that a person aided and abetted another in the commission of an offense, although sufficient to convict the person as a principal in such offense under Section 777.011, Florida Statutes (1977), is insufficient to convict either person of a conspiracy to commit the subject offense. Little v. State, 293 So.2d 775 (Fla. 2d DCA 1974).

Ramirez v. State, supra at 1065.

Mere presence at the scene of an offense is insufficient to establish a conspiracy. Conspiracy must be proved beyond a reasonable doubt, Boyd v. State, supra, and there is nothing in this record to support an agreement and an intention to commit the separate offense of conspiracy. The conversations related only to the offenses upon which the defendants were acquitted.

We hold the evidence was insufficient to establish the offense of conspiracy under applicable law, and we therefore reverse the convictions with directions to discharge the defendants. In light of our disposition of this cause, it is unnecessary for us to reach the other issues raised.

Reversed.

      . Defendant Ashenoff was placed on probation for a period of four years with a condition that he serve six months in the Dade County Jail and fined $1,000. Defendant Restucci was placed on five years probation with a condition that he serve two years in the state penitentiary and fined $3,000. Defendant Emmons was placed on five years probation with a condition that he serve three years in the state penitentiary and fined $5,000. Our disposition of this cause makes it unnecessary for us to consider the applicability of Villery v. Florida Parole and Probation Commission (Fla. 1980) (Case No. 57,935, opinion filed October 30, 1980), to these sentences.


text:
    Enrique BETANCOURT a/k/a Henry Betancourt and Sidney Neubauer, Intervenor, Appellants, v. Phillip P. ZIPES, Appellee.
    Nos. 80-34, 80-144.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.
    Rehearing Denied Jan. 9, 1981.
    Rudolph Browd and Michael Mann, Miami, for appellants.
    Kermit G. Kindred, Miami and Richard R. McCormick, Boca Raton, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Cooper v. Fulton, 158 So.2d 759 (Fla.3d DCA 1963); cert. discharged 165 So.2d 161 (Fla.1964); see Tobin v. Lefkowitz, 367 So.2d 682 (Fla.3d DCA 1979).


author: NESBITT, Judge.

text:
    Josefa HERNANDEZ, Appellant, v. Zoila LEIVA, Appellee.
    Nos. 80-367, 80-589.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.

      Morales, Rudolph & Hevia and Nestor Morales, Miami, for appellant.
    Stanley M. Ersoff, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

These consolidated appeals stem from a final order assessing damages against a seller and awarding attorney’s fees to the plaintiff-buyer, pursuant to Section 57.105, Florida Statutes (1979); as well as an antecedent and subservient interlocutory order decreeing specific performance of a written contract to sell a house. We affirm in all respects except that portion awarding attorney’s fees without allocation as discussed herein.

The first point raised by the appellant-seller is that the trial court abused its discretion in bifurcating the issues of liability and damages. The contract for the sale of the home provided that the buyer was to assume an existing mortgage. The mortgage contained a clause providing that the buyer was required to qualify with the mortgage lender. Consequently, the parties expressly stipulated as indicated in the contract as follows:

Seller acknowledges that the existing mortgage cannot be assumed without pri- or qualification of the assumption and the investor may adjust the interest rate to the new assumption. And purchaser agrees with this paragraph.

Between the date of execution of the contract and the interlocutory order decreeing specific performance, approximately sixteen months had elapsed and interest rates had increased. The increased interest rate to be charged by the mortgagee could not be fixed and determined until the closing date. Until the court decreed specific performance and a closing date had been established, the increased interest rate could not be determined for the purpose of assessing damages. Damages, if any, were speculative until that time. Consequently, it resided within the discretion of the trial court, on its own initiative, to bifurcate and continue the trial as to damages and attorney’s fees. Fla.R.Civ.P. 1.270(b); Watts v. Mantooth, 196 So.2d 230 (Fla. 2d DCA 1967).

The second point raised by the seller is addressed to the trial court’s award of damages to the buyer. At the time the contract was executed, the interest rate on a mortgage loan was ten per cent. In between that date and the date of closing, under the decree of specific performance, interest rates had increased to twelve and one-half per cent. Under the above-quoted provision of the contract, the parties contemplated a change in mortgage loan interest rates. This provision had been inserted during a period of spiraling inflation for the protection of the seller against a default by the buyer. The trial court heard evidence that the seller refused to close under the agreed priced because of the rapidly appreciating value of her home and consequently found that the seller arbitrarily refused to close. As an equity court, it was empowered to assess damages against the seller so as to place the parties, as far as possible, in the same position they would have occupied had the agreement been performed within the prescribed time. Salinas v. Rieck & Fleece Builders Supplies, Inc., 109 So.2d 394 (Fla. 2d DCA 1959).

The final issue raised by the seller is that the trial court improperly awarded attorney’s fees in favor of the buyer pursuant to Section 57.105, Florida Statutes (1979). In the interlocutory order decreeing specific performance, the trial court expressly found that the acquiring purchaser, as the prevailing party, was entitled under the statute to attorney’s fees because there was a complete absence of justiciable issue either in law or in fact as required by the statute. MacBain v. Bowling, 374 So.2d 75 (Fla. 3d DCA 1979).

At trial, after the buyer made out a prima facie case, the seller called no witnesses in her own behalf. Instead, she nominally attempted to create an issue by cross-examination of the plaintiff’s witness. The seller was called by the buyer as an adverse witness who testified that she did not close because she would not be released from the mortgage by the mortgagee. The court properly refused to consider this testimony because, at most, it was an affirmative defense which had not been raised by the pleadings. The trial court found, and we agree, that the issue of the seller’s liability for failure to comply with the contract as raised at trial was frivolous. Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980).

It was the function of the trial court, based upon its observation of the demeanor and credibility of witnesses, to evaluate the weight and sufficiency of the testimony and evidence and unless there is a lack of substantial evidence to support its findings we may not substitute our judgment for that of the trial court. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972).

We agree with our colleagues in Alien v. Estate of Dutton, supra, that it is not every party that prevails as movant in a summary judgment proceeding, or on a motion to dismiss for failure to state a cause of action, or on a judgment on the pleadings, that is automatically entitled to attorney’s fees pursuant to Section 57.105, supra. Nor do we indicate by this opinion that every successful litigant, after an evidentiary hearing or trial, is automatically entitled to attorney’s fees pursuant to the statute. As indicated by the statute, attorney’s fees will be awarded only where “the court finds that there was a complete absence of a justiciable issue of either law or fact .... ” A trial court’s finding of a complete absence of a justiciaba issue is justified where, as in this case, the attempt to create a controversy is frivolous.

In certain schools of litigation, “stonewalling” is considered better than no defense at all; but the Florida Legislature, in exercise of its authority and wisdom, has, by the enactment of Section 57.105, supra, decided to place a pricetag upon such unwarranted litigation.

The trial on liability would never have occurred but for the willful obstinacy of the seller in refusing to close based on “issues” which the trial court found to be frivolous. However, the separate trial on damages raised substantial issues of fact. The trial court ultimately found the increased cost of the new mortgage to the seller for the duration of the mortgage and then reduced that sum to its present day value. The clause under which damages were awarded is relatively new in mortgage financing. Section 57.105, Florida Statutes, supra, only authorizes attorney’s fees on the finding of a complete absence of a justicia-ble issue. Here, there was a justiciable issue with respect to damages. The order awarding the fee made no allocation between the issues of liability and damages. Consequently, we reverse and remand the order awarding attorney’s fees with directions that only reasonable fees with respect to the issue of liability be awarded.

For the foregoing reasons, the judgment appealed from is affirmed in part and reversed in part and remanded with directions.

      . Since the affirmative defense was not properly pled, it cannot be raised. We note that generally a mortgagor remains liable to a mortgagee unless there is a novation under which the mortgagor is relieved of personal liability for the debt. 22 Fla.Jur. Mortgages § 461 and cases cited therein.


author: HENDRY, Judge.

text:
    Ann Marie STAIB and her husband, Daniel Staib, Appellants, v. FERRARI, INC., a Florida Corporation d/b/a Ferrari’s Pizzeria and Italian Restaurant, Appellee.
    No. 80-482.
    District Court of Appeal of Florida, Third District.
    Dec. 9, 1980.

      Daniels & Hicks and Sam Daniels, Rentz & Haggard, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and VANN, HAROLD R., (Ret.), Associate Judge.
   HENDRY, Judge.

This is an appeal by plaintiffs below from an order of the Circuit Court of Dade County, Florida granting defendant a new trial. Defendant, Ferrari, has cross-appealed. We affirm the order of new trial.

Briefly, the evidence at trial showed that the Staibs, plaintiffs in the trial court, ordered a pizza from the defendant’s restaurant to be delivered to their home. As Mrs. Staib was eating the pizza, she bit down upon a small metallic substance. Subsequent X-rays disclosed that she had swallowed a tiny piece of the metal. The plaintiffs admitted that Mrs. Staib had no physical complications beyond a small cut in her mouth, but claimed that she suffered permanent psychological scarring and could no longer eat food prepared by anyone other than herself.

The case was tried on theories of negligence and breach of warranty. At the conclusion of the trial, the court submitted a special interrogatory verdict form to the jury and explained the procedure to be followed in answering the questions. After deliberations, the jury returned a verdict finding that there was no negligence or breach of warranty on behalf of the defendant, but nevertheless assessing damages in favor of the plaintiffs for $114,000, the approximate figure requested by plaintiffs’ counsel during closing argument. After some discussion and confusion, the trial judge gave the jury a fresh verdict form and the jury returned to the jury room. Soon thereafter the jury returned a verdict for plaintiffs in the amount of $114,000, finding the defendant liable for negligence and breach of warranty.

The court below granted the defendant’s motion for a new trial as to both liability and damages. The salient findings of the court leading to the grant of a new trial were: (1) the jury was confused about the issues of the case and was unable to correctly fill out the verdict form; (2) the size of the verdict was grossly excessive and shocked the conscience of the court; (3) the court erred in charging the jury on the doctrine of res ipsa loquitur; (4) the court erred in charging the jury on permanent injury, and allowing into evidence plaintiffs’ mortality tables; and (5) the court erred in failing to direct a mistrial due to the mention of certain inadmissible, irrelevant, and prejudicial matters. From this order the plaintiffs and the defendant have appealed, and cross-appealed, respectively.

On review, our inquiry is limited to the narrow issue of whether the trial judge abused his discretion in granting the motion for a new trial.

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, . . . who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, ... the ruling should not be disturbed in the absence of a clear showing that it has been abused ....

Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla. 1980); Cloud v. Fallis, 110 So.2d 669, 673 (Fla. 1959); Westbrook v. All Points, Inc., 384 So.2d 973, 974 (Fla.3d DCA 1980).

The Florida Supreme Court has outlined the test to be applied by appellate courts in determining whether there has been an abuse of discretion by the court below:

If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.

Baptist Memorial Hospital, Inc., supra, 384 So.2d at 146.

Thus, the test is one of reasonableness, and in this case the record amply supports the trial judge’s finding that the jury was confused and unable to properly fill out the verdict form. In fact, the jury reached two completely different results in the span of five minutes, first finding the defendant not liable under either theory, and then finding liability under both theories.

Additionally, the judge below found that the size of the verdict was so excessive that it shocked the conscience of the court. The Florida Supreme Court has held that the excessiveness of a verdict is a valid reason for granting a new trial. Bennett v. Jacksonville Expressway Authority, 131 So.2d 740 (Fla. 1961); Cloud v. Fallís, supra. Having only the bare record before us, it is not for this court to second guess the trial court’s wisdom as to the necessity for a new trial:

Mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial. The trial judge “[is] in a much better position than an appellate court to pass on the ultimate correctness of the jury’s verdict.”

Castlewood International Corp. v. LaFleur, 322 So.2d 520, 522 (Fla. 1975) (citation omitted). Moreover, a stronger showing is required to reverse an order allowing a new trial, as here, than to reverse an order denying one. Pyms v. Meranda, 98 So.2d 341 (Fla. 1957).

Upon examination of the record and briefs, we conclude that the plaintiffs have failed to present a clear showing that the trial court abused its discretion in granting a new trial. We are of the opinion that reasonable men could differ as to the propriety of the action taken. We agree with the trial court that under the particular facts of this case, the res ipsa loquitur instruction should not have been given. Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d 1339 (Fla. 1978).

For the foregoing reasons, the order appealed is affirmed. We have considered the cross-appeal filed in this action and find it to be without merit.

Affirmed.

      . In granting a new trial, the court below properly followed the dictates of Wackenhut v. Canty, 359 So.2d 430 (Fla. 1978), which held that such orders should articulate the reaso'ns for the grant so as to facilitate appellate review in determining whether judicial discretion has been abused. Here, the judge specifically stated several distinct reasons for the grant of a new trial.