text:
    CENTRAL TAXI SERVICE, INC., and Salamon Candiotti, Appellants, v. Regina GREENBERG, Appellee.
    No. 81-277.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Robert Switkes, Miami, and Douglas D. Stratton, Miami Beach, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Sheldon R. Rosenthal, Miami, for appellee.

      Before HUBBART, C. J., SCHWARTZ, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

While crossing a street on Miami Beach, Regina Greenberg was struck and seriously injured by a Central Taxi Service, Inc. cab driven by Salamon Candiotti. The ensuing trial contained, predictably enough, wildly conflicting evidence concerning the circumstances of and responsibility for the accident. At its conclusion, the court routinely submitted to the jury the standard comparative negligence-special interrogatory verdict form contained in Florida Standard Jury Instructions, Model Charge No. 1. When the jury initially returned to the courtroom, it had answered only three of the four questions propounded. While it determined that both parties were negligent, with the plaintiff 35% and the defendant 65% responsible for the accident, it did not fill in the space provided for the answer to question 4, the total amount of the damages sustained by the plaintiff. At a sidebar conference, the court rejected the plaintiffs contention that the jury should be asked only to respond to the unanswered question on the damages issue. Instead, after the form, which was never read in open court, was filed with the clerk, the trial judge both completely reinstructed the jury as to liability and damages, and submitted it a new, entirely blank special verdict form. This time, the jury answered “no” to the first interrogatory as to whether the defendant driver was guilty of negligence at all. A judgment for the defendants was subsequently entered upon this second verdict.

In the order now on review, however, the trial court set aside that judgment and granted the plaintiff’s motion for a new trial on damages only, essentially on the ground that the jury’s initial findings as to liability and comparative negligence should have been regarded as determinative of those issues. The defendants appeal but we affirm.

Under the circumstances of this case, we thoroughly agree that there was no basis or reason to reject the jury’s initial resolution of the liability issues, which were not even arguably infected by any impropriety, and to require a reconsideration of those very questions rather than a response only to the single interrogatory which had not been addressed. The applicable rule, which directly supports this conclusion, is stated as follows at 5A Moore’s Federal Practice, § 49.03[4] (2d ed. 1982):

[I]f the jury fails to find on an issue actually submitted to it, since the right to jury trial thereon has not been waived, a new trial, at least as to such issue, is necessary, unless the jury has not been dismissed before the omission is discovered, in which case the issue should be resubmitted, [e.s.]

Accord, Turchio v. D/S A/S Den Norske Africa, 509 F.2d 101, 105 (2d Cir. 1974) (“When the jury failed at first to answer any of the questions put to it, the court acted within its rights in asking the jury to deliberate a second and third time to obtain answers to the unanswered questions.” [e.s.]); Bartholomew v. Universe Tankships, Inc., 168 F.Supp. 153, 159-60 (S.D.N.Y.1957), aff’d, 263 F.2d 437 (2d Cir. 1959), cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030 (1959) (proper to insist upon jury’s response to unanswered interrogatories, rather than to reject incomplete verdict form as totally unresponsive to court’s initial instructions); see also, Porret v. City of New York, 252 N.Y. 208, 169 N.E. 280 (1929), cf. Union Pacific R. Co. v. Bridal Veil Lumber Co., 219 F.2d 825 (9th Cir. 1955), cert. denied, 350 U.S. 981, 76 S.Ct. 466, 100 L.Ed. 849 (1956) (new trial required on all issues only because both answered and unanswered questions were related to intertwined aspects of same incident).

On the other hand, we find entirely inapposite the authorities cited by the defendants. These cases, exemplified by Stevens Markets, Inc. v. Markantonatos, 189 So.2d 624 (Fla.1966) and Sweeney v. Wiggins, 350 So.2d 536 (Fla. 3d DCA 1977), hold that all aspects of an internally inconsistent verdict must be resubmitted for the jury— which has the sole authority to do so — to resolve the conflict by changing one or the other of its contradictory conclusions. In this ease, the verdict first returned was neither self-contradictory, inconsistent nor otherwise facially improper; it was merely incomplete, and there was therefore no basis for doing anything beyond asking the jury to finish its job. At the very least, we cannot hold that the trial judge abused the considerable discretion he possesses in granting a new trial, Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), in concluding, upon reflection beyond the cockpit of the trial setting, that this is what he should have done in the first place. Accordingly, the order under review is

Affirmed.

      . The entire verdict as first returned by the jury was as follows:
      We, the jury, return the following verdict:
      1. Was there negligence on the part of the Defendants, CENTRAL TAXI SERVICE, INC. and SALAMON CANDI-OTTI, which was the legal cause of the damage to the Plaintiff, REGINA GREENBERG?
      ves x NO_
      If your answer to question 1 is NO, your verdict is for Defendants, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, please answer question 2.
      2. Was there negligence on the part of Plaintiff, REGINA GREENBERG, which was the legal cause of her damage?
      YES x NO-
      If your answer to question 2 is YES, please answer question 3.If your answer to question 2 is NO, skip question 3 and answer question 4.
      3. State the percentage of any negligence, which was the legal cause of damage to Plaintiff, REGINA GREENBERG, that you charge to:
      Defendants 65 %
      Plaintiff 35 %
      Total must be 100 %
      4. What is the total amount (100%) of any damages sustained by Plaintiff, REGINA GREENBERG, and caused by the incident in question?
      Total Damages of Plaintiff $-
      In determining the total amount of damages, do not make any reduction because of the negligence, if any, of Plaintiff, REGINA GREENBERG. If you have found the Plaintiff negligent in any degree, the court in entering judgment will reduce the Plaintiffs total amount of damages (100%) by the percentage of negligence which you found is chargeable to the Plaintiff.
      SO SAY WE ALL this 19th day of November, 1980.
      /s/ Anniebelle O. McIntosh
      Foreman or Forewoman

      . The order states:
      Upon consideration of the Motion for New Trial by plaintiff, REGINA GREENBERG, the Court finds:
      a. The initial verdict returned by the jury was signed and dated by the foreman of the jury and found defendant 65% negligent and plaintiff 35% negligent;
      b. The initial verdict form did not contain a damage award although the evidence demonstrated that plaintiff was injured and sustained damages as a result of the subject accident;
      c. The aforementioned verdict was accepted by the Court, published and filed in the Court file;
      d. The court advised the jury that the referred to verdict was incorrect after which the jury was re-instructed as to liability and damages; and,
      e. Thereafter the jury retired and returned a second verdict in favor of the defendant.
      Based upon the foregoing, the Court has determined on Motion for New Trial that the initial verdict, having been accepted by the Court, published and filed, was final as to the issue of liability; and there having been un-contradicted evidence of injury to plaintiff as a result of defendant’s negligence without award of damages to plaintiff by the jury, a new trial should be granted to plaintiff on the issue of damages. Accordingly, it is
      ORDERED AND ADJUDGED

        That plaintiff, REGINA GREENBERG’S, Motion for New Trial on the issue of damages is hereby granted, and the first verdict on liability is reinstated and the second verdict is declared a nullity.
      DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 6th day of April. 1981
      /s/ Moie J. L. Tendrich
      CIRCUIT COURT JUDGE

      . The order contemplates that the jury’s conclusion of 35% comparative negligence will be applied to the gross amount assessed in the new trial, so that judgment will be entered for the plaintiff for 65% of that figure.

      . We note, however, that the trial judge’s apparent rejection of its first set of conclusions very likely (and unjustifiably) led the jury to the belief that there was something incorrect about those results and thus to their subsequent verdict to the contrary. Schumer v. Becker, 389 So.2d 282 (Fla. 3d DCA 1980).

      . Because the first verdict was not in fact published and, since it was incomplete, could not in any event have been deemed final or beyond its control, see Glecer v. Fletcher, 299 So.2d 134 (Fla. 3d DCA 1974), we recognize that the jury would have retained the theoretical authority to alter even its answers to questions 1-3, although it had been asked only to fill in the damages blank. Stevens Markets, Inc. v. Markantonatos, 189 So.2d 624 (Fla.1966), and cases cited. There is, however, utterly no basis for believing that it would have done so in fact under those circumstances. It is for this reason that we do not disapprove the discretionary conclusion that the new trial should concern only damages, rather than including the liability issue as well. See also, Vega v. Mahfuz, 367 So.2d 1107 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 346 (Fla.1979), and cases cited.

      . The defendants take particular issue with the order’s conclusions, see note 2, supra, that the first verdict was “accepted,” “published,” and therefore deemed “final.” While, as we have indicated, note 5, supra, we do not disagree that this choice of language was technically wrong, this has no effect upon the correctness and therefore the affirmability of the thrust of the order, which is that the first verdict should have been accepted as conclusive of the issues it resolved.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frantz LECOIN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1605.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 15, 1982.
    Bennett H. Brummer, Public Defender and Lee Weissenborn, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the defendant’s convictions upon a holding that (1) the out-of-court identification procedure was not unnecessarily suggestive and did not give rise to any substantial likelihood of mistaken identification, Grant v. State, 390 So.2d 341 (Fla.1980); Gaines v. State, 406 So.2d 523 (Fla. 4th DCA 1981); (2) the in-court identification of the defendant was, independent of the pretrial show-up, admissible where the eyewitness-victim, with a clear and unobstructed view, observed Lecoin for more than twelve minutes in a well-lit store, Hanks v. State, 305 So.2d 817 (Fla. 3d DCA 1974); and (3) in any event, the defendant, by not objecting to the admission of the identification testimony at trial, has failed to preserve this point for our review, Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978); Stanley v. State, 357 So.2d 1031 (Fla. 3d DCA 1978).

Affirmed.


author: NESBITT, Judge.

text:
    CIGARETTE RACING TEAM, INC., Appellant, v. Sonny GANDEE and Gandee & Associates, Inc., Appellees.
    No. 81-1857.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 8, 1982.
    Hayden & Milliken and William Milliken, Miami, for appellant.
    Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellees.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The defendant, Gandee, a boat dealer, purchased a power boat from Cigarette Racing Team, Inc. (Cigarette). One week later, he returned the boat to the manufacturer for replacement of one engine. While in Cigarette’s repair yard, Gandee became engaged in conversation with the plaintiff, Mullins, who was perusing the plant as a prospective customer. At that point, Cigarette’s employee, Garcia, completed his repairs on Gandee’s boat and announced that he was going to take it for a test run. Gandee and Mullins accompanied Garcia on this trip. With Garcia at the wheel, the boat proceeded southward into the inter-coastal waterway. Soon after the boat passed under the bridge at the 163rd Street Causeway, the boat crossed over the wake of a charter fishing boat traveling south. The boat became airborne, throwing Mullins from it and causing him severe facial injuries.

Mullins instituted an action against Gan-dee and a separate action against Cigarette and its employee, Garcia, for their negligent operation of the boat. The cases were consolidated for trial. Gandee and Cigarette asserted third party claims against each other for: (a) indemnification; and (b) contribution. Mullins was granted a directed verdict against all the defendants; and Gandee was granted a directed verdict on its third party claim against Cigarette. Cigarette then settled with the plaintiff, but filed the instant appeal challenging the directed verdict in favor of Gandee.

We commence our analysis by observing that the accident occurred in navigable waters and, therefore, federal maritime law controls. Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Company, 410 F.2d 178 (5th Cir. 1969). Under maritime law, the passive tortfeasor is entitled to total indemnity from the actively negligent party. Kelloch v. S & H Subwater Salvage, Inc., 473 F.2d 767, 769 (5th Cir. 1973); Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Company, supra. Since we agree with the trial judge’s determination that Gandee’s negligence, if at all, could only have been as a passive tort-feasor, he is entitled to indemnification from the active tortfeasor, Cigarette.

For the foregoing reasons, we affirm.

      . Thus, we reject appellant’s contention that Section 371.52, Florida Statutes (1977) applied to impose liability on Gandee as boat owner. Branch v. Schumann, 445 F.2d 175 (5th Cir. 1971).


author: DANIEL S. PEARSON, Judge.

text:
    Miguel CISNEROS, Alejandro Labourdette and Ambassador Insurance Company, Appellants, v. Carlos TARAFA, Appellee.
    No. 81-2495.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 15, 1982.
    Robert H. Crary, Miami, for appellants.
    Harvey D. Rogers, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

There being issues of fact which, although ultimately resolved against the appellants, were manifestly- justiciable, the appellants correctly contend that the award of attorneys’ fees to Tarafa is totally unwarranted under Section 57.105, Florida Statutes (1981). See, e.g., Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). However, Tarafa asserts that because the appellants did not contest his right to attorneys’ fees and, indeed, stipulated to the entry of such an award below, the order is proper without regard to the strict construction given Section 57.105. But the only stipulation in the record pertaining to attorneys’ fees is not one which concedes Tarafa’s entitlement to fees, but rather one which obviates the necessity of Tarafa producing live testimony to prove the value of the services rendered by his attorneys. The appellants’ announced position below was that Tarafa was not entitled to any attorneys’ fees whatsoever. Since we agree, we reverse the order under review.

Reversed.


text:
    The CITY OF CORAL GABLES, Florida, Appellant, v. Warren WEPMAN, as Trustee, Emil J. Gould and Estelle Gould, Appellees.
    No. 82-126.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 1982.
    Rehearing Denied Sept. 2, 1982.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Robert A. Freeman and David A. Freedman, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

In 1974 the city enacted a zoning ordinance regulating the height of multi-unit residence buildings that was applicable only to appellee’s property. Upon appropriate proceedings the circuit court found the zoning ordinance unconstitutional and by final judgment enjoined the city from enforcing its “provisions”.

The city did not appeal this judgment, but instead, adopted a new ordinance purportedly applicable to various properties in the city. But, in actuality, after the city exempted over 5000 parcels from its effect, it was applicable only to appellee’s property. Appellee sought relief against the subsequent ordinance by independent action. He also sought relief in the original proceedings against the subsequent ordinance contending that it violated the prior injunction by attempting to enforce the same provisions relative to the height of the mul-ti-unit buildings that might be constructed on the property. After taking testimony the trial court entered an order as follows:

The Plaintiffs herein seek post-decretal relief regarding the validity of Defendant’s Zoning Ordinance No. 2171, as applied to Plaintiffs’ land.
This cause was previously before the Court in October, 1975, resulting in the entry of Final Judgment for Plaintiffs issued October 15, 1975. In said Final Judgment the Court made numerous findings of fact and conclusions of law, and permanently enjoined Defendant, The City of Coral Gables, from enforcing the provisions of Zoning Ordinance No. 2077 whereby a height limitation of “low profile” buildings, and density limitations, were attempted to be placed upon Plaintiffs’ land in regard to that certain real property described as:
Block 3, Block 4, and the East 235 feet of Block 5 of Sunrise Harbour, according to the plat thereof recorded in Plat Book 65 at Page 22 of the Public Records of Dade County, Florida.
Having heard substantial testimony, reviewed all pleadings, pertinent documents and exhibits, and being otherwise fully advised, the Court makes the following findings of fact and conclusions of law:
1. This Court has jurisdiction over the parties and the subject matter and is authorized to exercise its equitable power to render full relief, prevent multiplicity of litigation, and to provide finality to protracted litigation. Donnelly v. Mann, 68 So.2d 584 (Fla.1953); Tremont Co. v. Paasche, 81 So.2d 489 (Fla.1955); Schupler v. Eastern Mortg. Co., 160 Fla. 72, 33 So.2d 586 (1948); Nelson v. Beverly Beach Properties, Inc., 47 So.2d 310 (Fla.1950); Miami v. Keton, 115 So.2d 547 (Fla.1959); Knight v. Global Contact Lens, Inc., 220 So.2d 693 (Fla. 3d DCA 1969). A Court of equity has the power to enforce its orders and decrees and has continuing jurisdiction to do so. Hoover v. Scott, 44 So.2d 657 (Fla.1950).
2. The pre-1975 history of this property has been delineated fully in the Final Judgment previously entered herein. Plaintiffs’ property, described above is surrounded on the north and east by two and three-story apartment buildings, on the west by a 13-story apartment building (which has a three-story apartment building to its west) and on the south by a large waterway. Across the waterway from a substantial portion of Plaintiffs’ land is an area that has been excavated as a marina. The Plaintiffs Emil J. Gould and Estelle Gould have been the beneficial owners and have controlled the subject property continuously since 1945.
3. All other lands in the Sunrise Harb-our Subdivision have been developed in accordance with the applicable zoning regulations and with the concept of the recorded plat.
4. Ninety five days following the entry of the prior Final Judgment herein, the Defendant passed Ordinance No. 2171. This ordinance, currently in force, attempts to impose a height limitation of three stories on Plaintiffs’ land. This Court finds that said height restriction is the functional equivalent of the “low profile” restriction that was invalidated in 1975.
5. Upon learning of the passage of Ordinance 2171, Plaintiffs inquired of Defendant’s Zoning Department and were advised by the City’s zoning administrator that the height restrictions of Ordinance No. 2171 did not apply to Plaintiffs’ land in light of the favorable decree received by Plaintiffs approximately three months earlier. In reliance upon the decree and the advice from Defendant’s Zoning Department, Plaintiffs expended monies on architectural and planning matters relating to their property. Thereafter, in late 1980, Plaintiffs learned of certain correspondence issued by the City of Coral Gables, in which the Defendant indicated that construction on Plaintiffs’ land was restricted to three stories by Ordinance No. 2171. Plaintiffs thereupon promptly and timely commenced these proceedings.
6. The prior Final Judgment herein noted that the Plaintiffs’ land had been “singled out as the special subject for discriminatory zoning regulations”. Such discrimination continues under Ordinance No. 2171. Equal protection of the law requires that all persons “similarly circumstanced” receive equal treatment. Rodriguez v. Jones, 64 So.2d 278 (Fla.1953). The 1975 decree found that 13-story construction was permitted “on all other similarly situated property zoned for apartment use.” Nonetheless, under Ordinance 2171, Defendant attempts again to place restrictions on Plaintiffs’ land such as are found on dissimilar properties, while permitting 13-story construction on other properties that are similarly situated to Plaintiffs’ land. The subject ordinance denies to Plaintiffs the equal protection of the law.
Additionally, Ordinance No. 2171 provides that no property “across a waterway” from single-family zoned property may have construction in excess of three stories; this concept is not found in any prior zoning ordinance. Plaintiffs’ property is the only parcel in the entire City that would have its building height permissibility adversely affected by the insertion of the “across a waterway” concept into Defendant’s Zoning Code.
7. This Court further finds that the application of the height restrictions for buildings of less than 13 stories of Ordinance No. 2171 to Plaintiffs’ property violates due process guarantees. The Court finds that there exists no rational basis in fact or in sound principles of planning and zoning to support a height limitation for buildings on Plaintiffs’ land of less than 13 stories. The constitutional guarantees of due process of law prohibit governmental intrusion into private property rights where, as here, there exists no substantial relationship between the proposed restriction and the public health, welfare or safety. Tollius v. City of Miami, 96 So.2d 122 (Fla.1957). As this Court stated in 1975, “there is simply no relation whatever between the zoning regulations imposed on Plaintiffs’ property and the welfare of the community at large.”
8. The law recognizes the benefits of providing finality to litigation. While prior judgments in zoning disputes are subject to subsequent material changes in circumstances, Aronovitz v. Metropolitan Dade County, 290 So.2d 536 (Fla.App.1974), it is undisputed that no such changes occurred in this neighborhood during the 95-day interim between the Final Judgment entered October 15, 1975 and the adoption of Ordinance No. 2171 on January 20, 1976. It further appears without question that through the present date there have been no changes in circumstances concerning this neighborhood since many years prior to the initial trial herein. Under these circumstances, no changes in the prior findings of fact are warranted.
9.This Court finds that the Defendant has again acted in an arbitrary, unreasonable and discriminatory manner in respect to the zoning regulations restricting the height of buildings which may be constructed on the subject property. The Plaintiffs have carried their burden of establishing that, as applied to the subject property, the three-story height restrictions of Ordinance No. 2171 are discriminatory, unreasonable, not within the “fairly debatable” rule, and contravene the findings and prohibitions of the Final Judgment previously entered herein.
Based upon the foregoing findings and conclusions, it is hereby
ORDERED and ADJUDGED as follows:
1. The three-story height restrictions for buildings set forth in Ordinance No. 2171 are, as applied to Plaintiffs’ property described above, unconstitutional, null and void, and of no force and effect.
2. The Defendant City of Coral Gables is hereby permanently enjoined and restrained from enforcing zoning regulations more restrictive than allowing 13 stories in height for buildings constructed on the subject property described as:
Block 3, Block 4, and the East 235 feet of Block 5 of Sunrise Harbour, according to the plat thereof as recorded in Plat Book 65 at Page 22 of the Public Records of Dade County, Florida.
3. The Defendant City of Coral Gables is hereby permanently enjoined and restrained from enforcing zoning and building regulations on the subject property more restrictive than those now imposed on other properties approved in the Zoning Code for 13-story construction.
4. Jurisdiction over the parties and the subject matter is reserved for purposes of implementing the terms of this Order and for such other purposes as may be just and equitable.

The city now appeals this order. The finding that the second ordinance is substantially the same as the first and that it sought to accomplish the same result, directed to the same pieces of property is supported by competent evidence in the record.

Therefore the order under review is affirmed. See Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Alapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387 (Fla. 3d DCA 1980); City of Miami Beach v. Sussman, 376 So.2d 1218 (Fla. 3d DCA 1979); City of Boca Raton v. Boca Villas Corporation, 371 So.2d 154 (Fla. 4th DCA 1979); City of Miami Beach v. Manilow, 241 So.2d 170 (Fla. 3d DCA 1970).

Affirmed.

      . This action challenging the constitutionality of a zoning ordinance of the City of Coral Gables was tried before the Court. Upon consideration of the pleadings, the testimony, the evidentiary exhibits, and arguments of counsel, the Court makes the following findings of fact and conclusions of law:
      1. The plaintiffs are the fee owners and record title holders of vacant land in the City of Coral Gables, particularly described as follows:
      Block 3, Block 4, and the East 235 feet of Block 5 of Sunrise Harbour, according to the plat thereof recorded in Plat Book 65, at Page 22 of the Public Records of Dade County, Florida.

        2. The plaintiff, Emil J. Gould, has held an ownership interest in the above described property continuously since 1945. He was the original owner and developer of Sunrise Harbour Subdivision, which was initially platted and zoned in 1948. A revision of the subdivision plat was approved in 1955. Substantially the same zoning regulations were applied to the property reflected on the revised subdivision plat, consisting of single family residences, apartments and commercial buildings, as shown by plaintiffs’ Exhibit 1. All the lands in Sunrise Harbour have been sold as vacant lots, except the above described property owned by plaintiffs, and the purchasers have constructed improvements thereon consisting of single family residences and apartment buildings, in conformity with the applicable zoning. Only a few residential sites remain unimproved in the entire subdivision. The improvements were constructed in substantial accord with the initial zoning regulations.
      3. All the property in Blocks 1 and 2 of Sunrise Harbour, which is located immediately East and North of the subject property owned by plaintiffs, has been improved with apartment buildings. These apartment buildings have an approved average density in excess of 30 dwelling units per gross acre. The property abutting the subject property on the West is improved with a thirteen-story apartment building with an approved density of 57.4 dwelling units per gross acre. The subject property abuts the Coral Gables Waterway, which is immediately to the South. The subject property is surrounded on three sides by apartment buildings constructed in accordance with the approved zoning applied to the subdivision.
      4. The subject property owned by plaintiffs was originally zoned as follows:
      (a) The East 235 feet of Block 5 was zoned A-13, Apartment Use, which zoning classification permitted the use thereof as the site for an apartment building not exceeding thirteen stories.
      (b) Block 4 was zoned CC, Commercial Use, restricted to those CC uses needed to serve pleasure boats on the Coral Gables Waterway, including gasoline and oil, stores for marine and fishing supplies, and other similar enterprises not detrimental to the welfare of the area, with a boat slip permitted; and a ten-foot landscaped strip facing the Coral Gables Waterway to be provided without cost to the City.
      (c) Block 3 was zoned CB, Commercial Use, with an area of not less than sixty-five percent to be set aside for off-street parking as an accessory use to the commercial zoning.
      The original zoning of plaintiffs’ property for apartment and commercial use was accomplished by ordinance adopted on October 12, 1948, as part of the zoning of the entire Sunrise Harbour Subdivision. The above stated zoning regulations were imposed by ordinance adopted December 27, 1955, in connection with the zoning of the lands shown by the revised subdivision plat. These zoning regulations remained in force and effect continuously until the adoption of Ordinance No. 2077 on February 12, 1974, which zoning ordinance is the subject matter of this litigation.
      5. The City Commission on February 27, 1973, directed the Planning Board to make a study of the existing zoning on plaintiffs’ property and to submit recommendations. Thereupon, the Commission declared a building moratorium on the property, which moratorium was extended until January 22, 1974. Pursuant to the direction of the Commission, the Planning Board on September 19, 1973, recommended that:
      (T)he entire area under consideration be rezoned for use for a low density, low profile, low use City Park limited to use by Gables residents only, with appropriate parking for park users and additional parking for overflow vehicles from existing apartments in the area if the City can acquire or lease same, or in the alternative, if the City Commission determines that said property cannot or should not be acquired or leased or used for such park purposes because of the same being unfeasible or inadvisable that Block 4 remain as zoned (that is for a marina) and that Block 3 and the East 235' of Block 5 be zoned for apartment use with a maximum development and construction of 10 units per gross acre with said density being transferable throughout the entire tract in low profile buildings as may be appropriate and in compliance with the existing requirements of the Zoning Code.
      6. The City Commission on February 12, 1974, enacted Ordinance No. 2077, applicable solely to the property owned by plaintiffs, which amended the Zoning Code to provide that:
      (a) Block 3 of Sunrise Harbour is rezoned from CB, Commercial, to A-13, Apartment Use, with 2427 minimum square foot floor area.
      (b) Any and all apartment buildings constructed on all of Block 3 and the East 235 feet of Block 5 of Sunrise Harbour shall contain not more than 10 units per gross acre with said density being transferable throughout the property.
      (c) Any and all apartment buildings constructed on the subject property shall be low profile buildings as may be appropriate and in compliance with the existing requirements of the Zoning Code.
      7. The Court is most reluctant to interfere with the judgment of the legislative body of the City of Coral Gables charged with the responsibility of zoning. However, the action of the City Commission in adopting Ordinance No. 2077 applicable solely to the property owned by plaintiffs cannot be considered fairly debatable. Under the undisputed circumstances reflected by the record, there is simply no relation whatever between the zoning regulations imposed on plaintiffs’ property and the welfare of the community at large. No other property within the City of Coral Gables, is accorded the same treatment. Had the particular zoning regulations embodied in Ordinance No. 2077 been imposed on all property similarly situated, instead of applied solely to plaintiffs’ property, the question still would not be fairly debatable under the existing situation. To permit the construction of apartment buildings on property almost surrounding plaintiffs’ property at densities varying from twenty-seven to fifty-seven dwelling units per gross acre, while imposing on plaintiffs’ property only a density restriction of not more than ten dwelling units per gross acre, and to permit the construction of a thirteen story apartment building next door, while restricting plaintiffs’ property to a height restriction of “low profile buildings,” constitutes spot zoning in reverse. See City of Miami v. Schutte, Fla.App. 1972, 262 So.2d 14.
      8. The provisions of Ordinance No. 2077 are made applicable only to the property owned by plaintiffs. No other property within the City of Coral Gables zoned for apartment use is imposed with any density requirements, or a density limitation of not more than ten dwelling units per gross acre. The apartment buildings surrounding the subject property have a permitted average density in excess of thirty dwelling units per gross acre. No property other than the subject property is imposed with the height restriction that all buildings constructed thereon shall be low profile buildings. The Zoning Code permits apartment buildings not exceeding thirteen stories in height to be constructed on all other similarly situated property zoned for apartment use. In conformity with the Zoning Code, a thirteen story apartment building has been heretofore constructed on similarly situated property located immediately West and abutting plaintiffs’ property. Moreover, the Zoning Code contains no definition, and sets out no standards or guidelines to be applied for ascertaining the meaning, application, or nature and character of the height restriction “low profile buildings” applied only to plaintiffs’ property. This particular property has been singled out as the special subject for discriminatory zoning regulations. The equal protection of the laws requires that every person shall be accorded rights and remedies substantially similar to those given to others under similar circumstances and conditions. Where, as here, the actions of a legislative body are arbitrary, unreasonable, discriminatory or confiscatory, the Courts are required to act to protect the interests of the affected property owners.
      9. The plaintiff property owners have carried their burden of establishing that the provisions of Ordinance No. 2077 applied solely to the subject property are arbitrary, unreasonable and discriminatory, and not within the fairly debatable rule.
      Based on the foregoing findings of fact and conclusions of law, it is ordered and adjudged that judgment is hereby entered in favor of the plaintiffs, and against the defendant. Ordinance No. 2077, adopted on February 12, 1974, by the commission of the City of Coral Gables, is declared unconstitutional, null and void, and of no force and effect. The City of Coral Gables, is permanently enjoined and restrained from enforcing the provisions of Ordinance No. 2077.

      . The city now contends that this matter should have proceeded in the independent action when the appellee tried to consolidate the instant proceedings in the trial court with the independent action, the city objected. They will not now be heard to complain having secured a favorable ruling preventing the consolidation.


author: CAMPBELL, Judge.

text:
    CITY OF CLEARWATER, Florida, Appellant, v. Clifford EARLE and Bonnie F. Earle, his wife, and Pinellas County, Appellees.
    No. 82-64.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 1982.
    Rehearing Denied Aug. 30, 1982.
    Thomas A. Bustin, City Atty., Clear-water, for appellant.
    Patrick T. Maguire of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, P. A., Clearwater, for appellees, Clifford and Bonnie F. Earle.
    Jean H. Kwall, Asst. County Atty., Clear-water, for appellee, Pinellas County.
   CAMPBELL, Judge.

The City of Clearwater appeals following a summary judgment ordering it to commence eminent domain proceedings against certain property owned by appellees, Mr. and Mrs. Earle.

The Earles’ property is located in a subdivision in an unincorporated area of Pinellas County. The record is unclear whether the original developer or someone else built the streets and drains and installed the drainage basins and drainage pipes in the subdivision. The record does not explain the connection, if any, between the developer and the City and County, nor does it tell us who the Earles’ predecessors in title were and their part, if any, in the location of the various drains and pipes.

On October 21, 1968, responding to a request for annexation from certain property owners, the City annexed a portion of the subdivision. The annexed property included St. Croix Drive, a street abutting the Earles’ property.

While building a swimming pool in March, 1981, the Earles discovered a drainage pipe running across their property and approximately thirty feet outside the easement area identified on the subdivision plat. This pipe is part of the drainage system owned by Pinellas County that drains St. Croix Drive which is within the city limits of Clearwater. The Earles filed suit against the City and the County, claiming that these entities had inversely condemned their property by placing the pipe outside the easement area. The lower court concluded that the City had inversely condemned the Earles’ property and entered summary judgment in their favor. It also entered a summary judgment for Pinellas County which has not been pursued on appeal.

When a governmental body takes private property without first initiating formal proceedings, an inverse condemnation suit by the owner is the proper remedy. City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. 1st DCA 1965), cert. denied, 172 So.2d 597 (Fla.1965). The taking required in inverse condemnation consists of an entry and an appropriation. Edwards Dairy, Inc. v. Pasco Water Authority, 378 So.2d 866 (Fla. 2d DCA 1979); Kirkpatrick v. City of Jacksonville, Department of Housing & Urban Development, 312 So.2d 487 (Fla. 1st DCA 1975); Poe v. State Road Department, 127 So.2d 898 (Fla. 1st DCA 1961).

Neither element is present here. There has been no entry because the Earles’ property was not annexed, the pipe is not owned by the City, and the record does not establish who installed the pipe. There was no appropriation because the City, acting in its sovereign capacity, merely annexed St. Croix Drive and other previously unincorporated property adjacent to the Earles’ property pursuant to a citizens’ petition for voluntary annexation. When a municipality, properly following procedures delineated by statute and local ordinance, exercises its sovereign power to annex surrounding territory, it does not by the mere annexation alone assume responsibility for unknown defects in easements or rights-of-way. To hold otherwise would require a municipality to become an insurer and could lead to retroactive condemnation of property in the wake of each annexation.

The City also contends that the trial court erred in failing to note the date on which the taking occurred. Since we hold that there has been no taking by inverse condemnation requiring institution of eminent domain proceedings, we need not consider this point. Accordingly, we reverse the order granting summary judgment in favor of the Earles.

BOARDMAN, A. C. J., and RYDER, J., concur.


author: ERVIN, Judge. McCORD, Judge,

text:
    E. L. DUNN and John C. Nix, Jr., Appellants, v. J. E. STACK, Jr., John Barnes, Zeda Barnes Davis, Mathew Barnes, Noah Barnes, Ola Mae Barnes Rawls, Allen W. Lindsay, Sr., Thomas "Dick" Ates, Whitney National Bank and A. B. Walker, Appellees.
    No. AF-217.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    Rehearing Denied Sept. 8, 1982.

      Ronald W. Ritchie, of Reeves, King & Ritchie, Pensacola, for appellants.
    Donald H. Partington, of Clark, Parting-ton, Hart, Hart & Johnson, Pensacola, for J. E. Stack, Jr. and Whitney National Bank, appellees.
   ERVIN, Judge.

Oil in Florida’s Panhandle is one of our state’s treasures, but the rush to exploit this hidden bounty has created some unfortunate legal disputes, such as the case at bar. This quiet title action, which ended in a summary judgment for the appellees, has created a complex mosaic web from which it is difficult for one to discern whether the appellants are in fact bona fide purchasers for value. Because latent factual issues remain, we reverse the summary judgment and remand for further proceedings; at the same time acknowledging that this case has been before us on one previous occasion and surmising that we will in all probability see its visage again.

In 1961 J. E. Barnes passed away leaving an undivided one-half interest in a fourteen-acre tract of land to his wife, who later died in 1967, conveying her interest in undivided one-fifth shares to each of the couple’s five children, including Matthew Barnes and Zeda Barnes Davis. In 1968 Matthew Barnes became administrator of the estate.

Part of the fourteen-acre tract was the subject of some collateral quiet title problems. During the pendency of these problems, Matthew Barnes petitioned the probate court for permission to lease the mineral rights to the tract. The court approved, and Barnes was later able to negotiate a lease with Thomas “Dick” Ates, one of the appellees herein. On November 16, 1971, the probate judge approved the lease agreement subject to a final determination on the collateral quiet title action in favor of the Barnes estate. This order was promptly filed in the probate file.

Shortly thereafter, Zeda Barnes Davis negotiated the leasing of her mineral rights of her undivided one-fifth interest. The negotiations involved E. L. Dunn, an appellant herein, and Lee McCormick, Dunn’s partner in land-buying activities. The lease was signed on January 17, 1972, and promptly filed in the official public records. Eventually, a suit to quiet title was filed by Dunn against the Barnes’ heirs, Ates and other interested parties for the purpose of resolving the parties’ interests in the lease.

Depositions were ultimately taken of Dunn and Mrs. Davis, and affidavits from Mrs. Davis were submitted. The depositions and the affidavits give some insight as to what occurred during the lease negotiations in January, 1972 between Dunn and Davis. Dunn claims that he had no knowledge of the probate proceedings or the Ates lease, although he admits knowledge of the collateral quiet title problems. Davis, on the other hand, signed an affidavit claiming that she had fully advised Dunn of the Ates lease, which was consummated as a part of the probate administration proceedings. A second affidavit executed by Davis states that she had no recollection as to any discussion with Dunn about any pending lawsuit, and that she was “strongly persuaded” into executing the first affidavit.

Her deposition adds further confusion. She testified that she was under the impression the probate judge had given Matthew Barnes three months to consummate a lease on the fourteen-acre parcel, but that she didn’t think it had gone through. Mrs. Davis indicated that she had discussions with Dunn in January, 1972, pertaining to problems affecting the leasing arrangement, “since a family was involved in the leasing and that there was a lawsuit going on.” She also stated that Dunn was aware that the property sought to be leased was implicated in the probate administration proceedings. While we could add more to this discussion of Mrs. Davis’ testimony, it is sufficient to say that it was confusing and appears to provide factual conflicts.

The record moreover reveals that the lease between Dunn and Mrs. Davis recited a consideration of $10 and “other considerations.” In reality Dunn presented Mrs. Davis with two drafts signed by his business associate Lee McCormick. The drafts were for $1750 and $3000. When Mrs. Davis attempted to cash them, they were dishonored by the bank. Davis demanded her lease back but was apparently refused. On May 11, 1972, the lease between Ates and Matthew Barnes was finally recorded in the public records of Santa Rosa County.

The case below terminated by the trial court’s entry of summary judgment in favor of appellees holding: (1) that, as a matter of law, the appellants were not bona fide purchasers for value at the time that they consummated the January, 1972 leasing arrangements with Mrs. Davis, and (2) that the Barnes’ estate lease to Ates was prior in time and prior in right.

The appellants argue that the Davis/Dunn lease is superior to the Barnes/Ates lease, because Dunn was a bona fide purchaser for value. Although the two drafts for $1750 and $3000 presented to Mrs. Davis in January, 1972 may have been dishonored, appellants contend that the lease clearly recites that $10 “and other consideration” was given to Mrs. Davis. Therefore, value was given. Implicit in appellants’ position is that the Davis/Dunn lease was the first lease to be filed in the official records, thereby making it prior in right to the probate lease. Appellants, without citing any authority for this view, have suggested that the filing of the probate lease in the probate records is insufficient notice to accord one the status of a bona fide purchaser.

The appellees counter that absent actual payment of the consideration to Mrs. Davis, the appellants cannot be bona fide purchasers for value. Myers v. Van Buskirk, 96 Fla. 704, 119 So. 123 (1928). Since the $1750 and $3000 drafts were dishonored, actual payment was never made to Mrs. Davis until after the probate lease had been filed in the official records. Thus, they contend the appellants have failed to carry their required burden of proof of the recited consideration, because one can not rely on the mere recital of consideration in a deed or lease. See Lake v. Hancock, 38 Fla. 53, 20 So. 811 (1896).

The posture of the case now before us is an appeal from the granting of the appel-lees’ motion for summary judgment. “A summary judgment is rendered [only] upon a showing that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 506 (Fla.1982); Correia v. Seaboard Coast Line Railroad Co., 393 So.2d 1161, 1163 (Fla. 1st DCA 1981).

The burden is upon the movant for summary judgment to negate conclusively every reasonable inference of material fact that could support the nonmoving party. Wills v. Sears, Roebuck & Co., 351 So.2d 29, 30 (Fla.1977); see also Burkett v. Parker, 410 So.2d 947, 948 (Fla. 1st DCA 1982). In ascertaining whether there is any reasonable inference of material fact that would support the nonmoving party, thereby barring summary judgment, the trial court must consider the pleadings, depositions, affidavits, answers to interrogatories and admissions on file. Fla.R.Civ.P. 1.510(c); see also 30 Fla.Jur. Summary Judgment § 25 (Rev.1974). Because there remain unresolved factual determinations within Dunn’s deposition and the affidavits and deposition of Mrs. Davis, we reverse for further proceedings. Harvey Building, Inc. v. Haley, 175 So.2d 780, 783 (Fla.1965).

The first factual conflict stems from the question concerning how much Dunn knew about the probate lease either at the time he negotiated his lease with Mrs. Davis or prior to that time. To be accorded the status of a bona fide purchaser for value, one must be without .notice as to a transaction which is prior in time. § 695.01, Fla. Stat. (1941). Notice, of course, can be actual or constructive. Sapp v. Warner, 105 Fla. 245, 141 So. 124, reaffm’d. on reh., 105 Fla. 245, 143 So. 648 (1932); Hagan v. Sabal Palms, Inc., 186 So.2d 302, 313 (Fla. 2d DCA 1966), cert. denied, 192 So.2d 489 (Fla.1966). We find that there are, at a minimum, reasonable inferences of fact from the record that Dunn had actual notice of the probate lease at the time the Davis/Dunn lease was executed.

Constructive notice is a legal inference, and it is imputed to creditors and subsequent purchasers by virtue of any document filed in the grantor/grantee index— the official records. Sapp, supra, at 141 So. 127; Leffler v. Smith, 388 So.2d 261, 263 (Fla. 5th DCA 1980), rev. denied, 397 So.2d 778 (Fla.1981). In this case it appears there was no constructive notice of the probate lease to anyone until May 11, 1972 — the date the probate lease was filed in the official records. While it is true that the probate lease was filed in the probate records prior to the time that the Davis/Dunn lease was consummated, “[s]uch proceedings in the probate court do not constitute constructive notice to subsequent purchasers for value.” Pierson v. Bill, 138 Fla. 104, 189 So. 679, 684 (1939); see also 66 Am. Jur.2d Records & Recording Laws § 136 (1973).

Actual notice, on the other hand, is of two different types. It may be: “(1) Express, which includes what might be called direct information, or (2) implied, which is said to include notice inferred from the fact that the person had [the] means of knowledge, which it was his duty to use and which he did not use ... . ” Sapp, supra, at 141 So. 127; Hagan, supra, at 313. In the case at bar it is clear that Mrs. Davis’ first affidavit indicated that she had fully apprised Dunn of the existence of the probate lease at the time of the consummation of the Davis/Dunn lease. While it is true that her second affidavit appears to recant the first affidavit, at least in part, her deposition gives a confused picture as to what she may have actually communicated to Dunn or as to what he may have acknowledged that he knew about the scope of the probate proceedings and any lease arrangement pursuant to those proceedings. Surely, the deposition of Mrs. Davis suggests reasonable inferences of the fact that Dunn may have been aware of the probate lease, and without question, Mrs. Davis’ first affidavit, if accepted by the trier of fact, states clearly that Dunn knew of the probate lease.

Assuming that the lower court finds as a matter of fact that Dunn was aware of the probate lease at the time that he and Mrs. Davis entered into their lease, Dunn’s effort to be accorded the status of a bona fide purchaser for value would fail in its entirety. If, however, the court finds that Dunn was unaware of the prior probate lease, the issue of the dishonored drafts then becomes a relevant concern.

The general rule is that to be accorded the status of a bona fide purchaser for value, one must have purchased for a valuable consideration. See, e.g., Berge v. Fredericks, 95 Nev. 183, 591 P.2d 246 (1979); see also § 695.01, Fla.Stat. The Davis/Dunn lease recites that Dunn paid $10 and “other consideration.” While the recitation of a consideration does raise a presumption of the payment of a valuable consideration, it is open to parol proof whether or not and to what extent there has been actual receipt of the purported consideration. J. C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979, 982-983 (Fla. 3d DCA 1981). However, when the question of consideration becomes material, as in the case at bar, the mere recital of consideration in a deed or lease is insufficient to show that the subject property was purchased for value. J. C. Vereen & Sons, supra, at 982-983; Lake, supra, 20 So., at 813.

The basis for this rule apparently rests on the view that some forms of consideration are legally insufficient to be a purchase for value. For example, mere love and affection is insufficient to constitute value in the sense of according one the status of a bona fide purchaser for value. Florida National Bank & Trust Co. v. Havris, 366 So.2d 491, 497 (Pía. 3d DCA 1979); Berge, supra, at 248; Alexander v. O’Neil, 77 Ariz. 91, 267 P.2d 730 (1954); 92 C.J.S. Vendor & Purchaser § 323 b.(2) n. 71 (1955). Consequently, when dealing with real property interests, consideration must constitute “value” in a technical sense to a greater degree than what is expected in contract law. O’Neil, supra, at 735.

The record suggests that the “other consideration” paid to Mrs. Davis, prior to the recording of the probate lease in the official records, consisted of two drafts for $3000 and $1750. It is of course undisputed that the actual payment of the consideration is required prior to the time that the purported bona fide purchaser for value learns of or receives constructive notice of the fact that his interest may be subordinate to another real property interest. Myers v. Van Buskirk, supra. Herein, it is contended that the consideration was worthless, because both drafts were dishonored and not made good prior to the recording of the probate lease in the official records.

This contention was addressed by this court in Wise v. Quina, 174 So.2d 590 (Fla. 1st DCA 1965), which we consider to be dispositive. The court in Wise carefully examined the Florida Supreme Court’s pronouncement in Van Buskirk. It was determined that while actual payment of valuable consideration prior to notice of a superi- or real property interest was required, if the grantee became irrevocably bound to make payment, this would suffice as a substitute for actual payment. Wise, supra, at 593. In Wise, a promissory note was found sufficient to make a grantee irrevocably bound, because a suit could be maintained upon the note.

In the case at bar, the question is whether two dishonored drafts are sufficient to make Dunn irrevocably bound to Mrs. Davis. Appellees submit that the answer to the foregoing must be in the negative, because a draft does not act as an assignment of the funds it represents until the drawee accepts the draft. § 673.409(1), Fla.Stat. (1965). Reading this section by itself totally ignores Section 673.413(2) and 673.802(1)(b), Florida Statutes. These sections must be harmonized and read in pari materia with Section 673.409(1) and with each other, because they were all enacted as a part of the same act — -Chapter 65-254, Laws of Florida, which is Florida’s codification of the Uniform Commercial Code. Ivester v. State, 398 So.2d 926, 930 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 470 (Fla.1982).

Because a draft is a negotiable instrument, it is clear that Sections 673.413(2) and 673.802(1)(b) permitted Mrs. Davis to maintain a suit on the drafts at the time that they were dishonored. B. C. Baum v. Cotton States Mutual Insurance Co., 141 Ga.App. 636, 234 S.E.2d 178 at 178 (1977); J. E. B. Stewart v. Citizens & Southern National Bank, 138 Ga.App. 209, 225 S.E.2d 761 (1976). Thus, based on our previous opinion in Wise v. Quina, supra, Dunn was irrevocably bound, and because he was so bound, a valuable consideration had been extended to Mrs. Davis.

However, one factual question exists in regard to the consideration extended. This relates to the second unresolved factual determination to which we alluded above. This question stems from the rule that one is a bona fide purchaser for value only to the extent of the valuable consideration extended. The total consideration to be paid Mrs. Davis for the lease of the mineral rights to her interest in the fourteen-acre tract is a fact that the lower court will have to address — assuming that it does not first determine that Dunn was placed on notice of the collateral probate proceedings, and therefore for that reason alone Dunn could not be considered a bona fide purchaser for value. If the appellants have not fully paid the total consideration by way of the drafts that have been given to Mrs. Davis, then the appellants’ interest in the mineral rights represented by Mrs. Davis’ holdings is subject to

[t]he general rule .. . that a subsequent purchaser without notice who is protected by the recording laws as against a prior unrecorded deed or mortgage is not entitled to protection to the extent of the part of the consideration that he has not paid when he receives notice of the prior conveyance.

Annot., 109 A.L.R. 163, 166 (1937).

We acknowledge that the depositions would appear to suggest that the drafts were in full payment by Dunn of the lease of Mrs. Davis’ interest, but the depositions and record in this case present a fact pattern that is complex, confused, and readily subject to contradictory inferences. Thus, we deem it the wiser course to remand to the lower court for a factual determination on the question of whether or not Dunn was placed on notice of the probate lease, and if it is determined that he was not, how much “other consideration” was to have been paid to Mrs. Davis for the lease of her mineral rights.

REVERSED and REMANDED.

SHAW, J., concurs.

McCORD, J., dissents with opinion.

McCORD, Judge,

dissenting.

I respectfully dissent from the majority opinion and would affirm the trial court. It is undisputed that as consideration for his lease, appellant Dunn gave Zeda Barnes two drafts drawn on the Bank of Jay to be charged to the account of appellant’s business associate, Lee McCormick. One directed the payment to Barnes of $3,000 payable ten days after sight and the other directed payment of $1,750 thirty days from approval of title to the property. Upon presentation, both were dishonored. Attached to each draft upon dishonor was a notation of the reason for dishonor stating “title irregular.” Section 673.104, Florida Statutes, provides in pertinent part as follows:

(1) Any writing to be a negotiable instrument within this chapter must:
(a) ...
(b) contain an unconditional promise or order to pay a sum certain in money....

It is clear that the $1,750 draft was conditioned upon title approval and thus was not a negotiable instrument under the terms of the above statute.

Appellants are in the untenable position of contending that their dishonored drafts were valuable consideration for their purchase. Unlike the situations in Wise v. Quina, 174 So.2d 590 (Fla. 1st DCA 1975), or Myers v. Van Buskirk, 96 Fla. 704, 119 So. 123 (1928), relied upon by the majority opinion, the drafts here were dishonored. The $1,750 draft was conditioned upon approval of title, and -both drafts were dishonored because of alleged title deficiencies. Under these circumstances, it cannot be validly said that after the dishonor, appellant Dunn or his business associate, McCormick, was irrevocably bound to make payment to Davis. The only consideration she had was a lawsuit in which she might or might not recover. That, in my view, does not make Dunn a good faith purchaser for value.

      . Dunn v. Stack, 394 So.2d 1076 (Fla. 1st DCA 1981).

      . Precisely when this three-month period commenced isn’t altogether clear, assuming that Mrs. Davis was correct about the existence of the three-month period. Matthew Barnes received initial approval to attempt to lease the mineral rights on October 28, 1971. If this was the commencement of the three-month period, the January 17, 1972 lease between Dunn and Davis would have fallen within this period. Thus, it would not have been logical on Mrs. Davis’ part to conclude that a lease had not been consummated by the estate during this period, since the full period hadn’t passed.

      . Tr. of November 7, 1975 Deposition of Zeda Barnes Davis, at 12; Record on Appeal at 282.

      . The problem of documents filed in only the probate file not according constructive notice has since been corrected. Probate documents affecting or describing real property must now be filed in the Official Records. § 28.223, Fla. Stat. (1977).

      . See also Osten-Sacken v. Steiner, 356 Mich. 468, 97 N.W.2d 37, 41 (1959); Davis v. Kleindienst, 64 Ariz. 251, 169 P.2d 78, 82 (1946); 92 C.J.S. Vendor & Purchaser, § 373 n. 16 (1955).

      . Section 673.409(1), Florida Statutes, states: “A check or other draft does not of itself operate as an assignment of any funds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.

      . Section 673.802(l)(b), Florida Statutes, states:
      (1) Unless otherwise agreed where an instrument is taken for an underlying obligation:
      * * * * * *
      (b) In any other case the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument or the obligation; discharge of the underlying obligor on the instrument also discharges him on the obligation, (e.s.)
      Section 673.413(2), Florida Statutes, states that “The drawer engages that upon dishonor of the draft and any necessary notice of dishon- or or protest he will pay the amount of the draft to the holder or to any endorser who takes it up ” We note that the suit would have been directed primarily at Lee McCormick, the drawer of the drafts and Dunn’s business partner. Nonetheless, a suit could have been successfully initiated.

      . § 673.104, Florida Statutes (1965).

      . In construing sections of the Uniform Commercial Code, “it is pertinent to review holdings in other jurisdictions where the particular act is in force, in the interest of attempting to achieve a uniform interpretation.” Mason v. Avdoyan, 299 So.2d 603, 605-606 (Fla. 4th DCA 1974). By doing so, we are merely carrying out the legislature’s mandate “to make uniform the [commercial] law among the various jurisdictions.” § 671.102(2)(c), Fla.Stat. (1965).

      . Wise v. Quina involved a promissory note. This case involves a draft. We find this distinction to be without significance. Both are negotiable instruments. § 673.104(1), Florida Statutes (1965). Further, it has been determined that a draft drawn upon one’s self is effectively no different from a promissory note. See Canal Insurance Co. v. First Nat'l Bank of Fort Smith, 266 Ark. 1044, 596 S.W.2d 710 (Ct.App.1979), affm’d., 268 Ark. 356, 596 S.W.2d 709 (Ark.1980).

        . See, e.g., Fisher v. Shropshire, 147 U.S. 133, 144-145, 13 S.Ct. 201, 37 L.Ed. 109 (1892); 77 Am.Jur.2d Vendor & Purchaser § 709 (1975); and Annot., 124 A.L.R. 1259, 1261 (1940).


author: LARRY G. SMITH, Judge.

text:
    FLORIDA MINING & MINERALS and Whiting National Services, Inc., Appellants, v. Foster BRANTLEY, Appellee.
    No. AF-401.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    Rehearing Denied Sept. 8, 1982.
    James T. Earle, Watson, Goldstein, Earle, Douglass & Dubbeld, St. Petersburg, for appellants.
    Robert P. Byelick, Lyle & Skipper, St. Petersburg, for appellee.
   LARRY G. SMITH, Judge.

The employer/carrier appeal a workers’ compensation order awarding temporary partial and temporary total disability benefits to the claimant. In addition, the claimant, by a separate motion, seeks an award of attorney’s fees on appeal, contending that Section 440.34, Florida Statutes (1979 Amendment) is unconstitutional as applied to deny attorney’s fees to the claimant on appeal, in controvention of Article I, Section 21, “Access to courts,” Florida Constitution. We affirm the order appealed, and deny the constitutional challenge.

The E/C’s chief complaint with respect to the claimant’s job search evidence is that the claimant was never told by any prospective employer that he was being refused employment because of his disability. The evidence discloses that the claimant undertook a job search after being discharged by his employer on August 28,1980 (on non-injury related grounds) while he was still recovering from the compensable injury. His job search efforts extended over a period of several months, during which time he visited the Florida State Employment Service every week, and included contact with some 22 prospective employers before he was finally successful in landing a job. Even the E/C admits that the claimant engaged in bona fide work search efforts. Moreover, although there is no direct proof of rejection for a job because of his disability, such direct proof of this essential element has not been required by prior decisions of this court. See, for example, Lehigh Corp. v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981); Coca-Cola Company—Foods Division v. Lucien, 399 So.2d 1023 (Fla. 1st DCA 1981); and Palm Beach Newspapers Inc. v. Roston, 404 So.2d 174 (Fla. 1st DCA 1981). This court alluded to the inherent difficulties in obtaining direct evidence showing the specific reason for rejection by an employer in Flesche v. Interstate Warehouse, 411 So.2d 919, 925 (Fla. 1st DCA 1982), particularly footnote 13.

The evidence here does show that every job application the claimant submitted had questions regarding previous injuries, and at least one, possibly two, prospective employers specifically questioned him about his injuries. No doubt other factors entered into denial of the claimant’s application for some of the jobs sought. We think the evidence was sufficient, however, to support a finding that the claimant’s inability to obtain employment was due, at least in part, to the fact of his prior injury, or his disabled condition, or both. Furthermore, the extent and intensity of claimant’s job search was more than adequate to shift to the E/C the burden of demonstrating that suitable work within the claimant’s limitations was available. Wright v. Gulf and Western Food Products, 401 So.2d 1316 (Fla.1981).

Finally, we have examined appel-lee’s motion challenging the attorney’s fees statute, and find it without merit. We note particularly that if, as appellee suggests, he would be entitled to attorney’s fees below under this court’s ruling in Dolphin Tire Company v. Ellison, 402 So.2d 36 (Fla. 1st DCA 1981), it would not have been impossible for him to have received a determination to that effect prior to the perfection of the E/C’s appeal. See Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981).

MILLS and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Adeline FIELDS and Career Service Commission of the State of Florida, Appellee.
    No. AJ-329.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1982.
    As Corrected on Denial of Rehearing Sept. 1, 1982.

      Enoch J. Whitney, Gen. Counsel, and Michael J. Alderman, Asst. Gen. Counsel of the Dept, of Highway Safety and Motor Vehicles, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Arthur C. Wallberg, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Judge.

This is an appeal by the Department of Highway Safety and Motor Vehicles (the Department) from an order of the Career Service Commission (the Commission) in which the Commission determined that the Department improperly dismissed appellee Adeline Fields from its employ. Reducing the dismissal to a suspension pursuant to Section 110.309(4), Florida Statutes (1979), the Commission also ordered that Fields be reinstated in a different position. Because of the nature of this case and significant policy considerations which relate to a final determination of this case, we remand for a hearing pursuant to Section 120.57(1), Florida Statutes (1981). See § 120.68(13)(a)(1), Fla.Stat.

Appellee Adeline Fields was initially employed by the Department of Health and Rehabilitative Services (HRS) as a clerk-typist II. She reached permanent status for that position within the career service system. Thereafter, she moved into a position with HRS as a secretary II but did not reach a permanent status for that classification. For personal reasons she left HRS and was hired by appellant as a clerk-typist III. All of the foregoing service was continuous in nature in that there were no interludes of unemployment, or work for another employer.

During her six-month probationary period of employment with the Department, it was determined that she was unable to properly discharge her duties, and she was dismissed by the Department. Because she had previously reached permanent status with HRS and had been engaged in continuous employment within the career service system, she was entitled to appeal her dismissal even though she had not reached permanent status in her position with the appellant. See Fla.Admin. Code Rule 22A-7.04(b); § 110.309(1), Fla. Stat. (1979).

At the hearing held before the Commission, it was ascertained that a significant part of her work with the Department involved answering telephones; that she had a hearing impediment which hindered her in successfully carrying out her duties; and that just cause existed for her dismissal. Pursuant to Sections 110.309(2), (4), Florida Statutes (1979), the Career Service Commission had two alternatives, including:

(2) Upon a finding that just cause existed for the suspension or dismissal, the commission shall affirm the suspension or dismissal.
* * * * * *
(4) Upon a finding that just cause for disciplinary action existed, but did not justify the severity of the action taken, the commission may, in its’ discretion: (a) Reduce a dismissal to a suspension for such time as the commission may fix

The Commission determined that absolute dismissal was too harsh, reduced the dismissal to a suspension for the period August 7 to December 7, 1981, and ordered that Fields be reinstated — not in her former position with the Department as a clerk-typist III but as a clerk-typist II. It is unclear whether the Commission has relied upon Section 110.309(4), Florida Statutes, in making this determination or upon Florida Administrative Code Rule 22A-10.07(2). Regardless, however, the Department now argues that the Commission has acted beyond its statutorily granted powers by ordering what amounts to a demotion. Contrast Department of Transportation v. James, 403 So.2d 1066 (Fla. 4th DCA 1981). To affirm the Commission order will, in effect, cause the Department to create the new position of clerk-typist II, a position which the Department asserts it does not have in the area of the state in which Fields resides.

The factual findings of the Commission have not been controverted on appeal and appear to be based on substantial competent evidence. Thus, it is clear that the Department had just cause for the dismissal; it also appears that Section 110.309(4)(a) authorizes the Commission to reduce a dismissal to a suspension despite the existence of just cause for the disciplinary action taken by the agency. This court is therefore relegated to determining this cause based on Section 110.309(4), Florida Statutes. Herein lies the crux of this case which is an enigma fraught with unspoken policy ramifications.

If we determine that the Commission has gone beyond the statutory parameters, we will in effect be mandating that Fields be reinstated to her job as a clerk-typist III, a position in which she cannot effectively function. This seems an impracticable result, one which will create a burden on Fields, and which will undoubtedly hinder the proper functioning of the taxpayer-funded Department. On the other hand, if we affirm, we will be setting new precedent by allowing the Commission to promote and demote at will in disciplinary actions. As is the case here, the Commission will be able to order effectively the creation of new positions that may be little more than “make work” jobs, the creation of which may wreak havoc on the state budget.

This case involves many subtle policy considerations which have not been entertained, based upon our review of the record and the parties’ briefs. Under the circumstances, we consider that the better course of judicial wisdom is to remand this cause to the Commission for the purpose of developing a record directed to the following considerations:

(1) What authority does the Commission rely upon in “demoting” the employee to a lesser position than that held by her prior to her dismissal?

(2) If the Commission is properly authorized to so act, can Fields effectively function in the position of clerk-typist II with the Department?

(3) What burden, if any, would be placed upon the Department in carrying out the Commission’s order reassigning Fields to a clerk-typist II position?

(4) If no such position presently exists within the Department in that area of the state where Fields now resides, could Fields, from a practical standpoint, be transferred to another area where such a position is available?

Accordingly, jurisdiction is relinquished to the Commission for the purpose of conducting a Section 120.57(1) proceeding addressed to the considerations above delineated and for the entry of a final order adequately founded upon a record as required by Section 120.59.

REMANDED.

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

      . Florida Administrative Code Rule 22A-10.-07(2) states:
      After hearing an appeal, or receiving the recommended order, the Career Service Commission shall:
      * * * * * *
      (2) Issue a written order which may sustain, reverse, or alter the decision of the employing agency. The orders of the Career Service Commission may include, but not be limited to, the reinstatement of an employee, with or without back pay; removal of all references to the charges from the employee’s personnel file; or other decisions deemed proper and necessary based on the circumstances of the appeal, (e.s.)


author: THOMPSON, Judge. JOANOS, Judge,

text:
    ROLLING OAKS UTILITIES, INC., Appellant, v. PUBLIC SERVICE COMMISSION and Citizens of the State of Florida, Appellees.
    No. AJ-294.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.
    Rehearing Denied Sept. 10, 1982.

      R. M. C. Rose and Martin S. Friedman of Myers, Kaplan, Levinson, Kenin & Richards, Tallahassee, for appellant.
    Jack Shreve, Public Counsel, Suzanne S. Brownless, Associate Public Counsel, Tallahassee, for appellee/Citizens of the State of Florida.
    Kathleen Villacorta, Associate Gen. Counsel, Paul Sexton, Staff Counsel, Tallahassee, for appellee/Public Service Com’n.
   THOMPSON, Judge.

Appellant Rolling Oaks Utilities, Inc., formerly a division of the Rolling Oaks Corporation and now a subsidiary of the Beverly Hills Development Corporation, provides water and sewer service to the residents of Beverly Hills, a retirement-oriented community in Citrus County, Florida. In 1979, the appellant filed with the Florida Public Service Commission (PSC) an application for increases in the rates charged its customers. Because appellant had never before applied for a rate increase, the PSC was obliged to initially determine appellant’s rate base before acting on the request. Appellant now seeks review of the PSC’s order of September 17, 1981, charging as error the PSG’s determination of its rate base and the PSC’s refusal to allow appellant to switch from a quarterly billing cycle to a monthly billing cycle. We affirm in part and reverse in part.

Sometime prior to 1969, the Rolling Oaks Corporation determined to provide sanitary sewer service in Units 4, 5, and 6 of its subdivision, and began charging lot purchasers a $500.00 premium on lots sold in those units. In promotional literature, sales contracts, and closing statements, the $500 premium was variously referred to as “land improvement fee,” “sewer service,” or “unit 4 or 5 improvements.” In 1969 and 1970, these “land improvement fees” were shown on the corporate books to be a sewer charge, and the monies were kept in a separate utilities account. In 1971, the Internal Revenue Service began classifying the land improvement monies as income to the corporation, and the corporation thereafter changed its accounting treatment of the monies to reflect that they were revenues. However, from 1972 until 1974, the corporation continued to collect the separate, itemized fee of $500 on each lot sold in subdivision units 4, 5, and 6. No such premiums or fees were charged in connection with the sale of lots in units of the subdivision which were not served by sanitary sewers.

Based on the above-stated facts, and on the appellant’s failure to adduce evidence that the $500 fees were collected for some reason other than to finánce construction of the sewer system, a hearing officer from the Division of Administrative Hearings concluded that the premiums were contributions-in-aid-of-construction, (CIAC), and, as such, would be deducted from the stipulated value of appellant’s sewer system in order to determine appellant’s rate base. Because the record includes a wealth of competent, substantial evidence to support the hearing officer’s findings and conclusion that the premiums were CIAC, we approve the PSC’s determination that the $500 premiums collected upon the sale of lots in subdivision units 4, 5, and 6, whether or not denominated “sewer charge,” cannot be included in appellant’s rate base.

We are not unsympathetic with appellant’s plea that it is unfair and unjust to classify the premiums as CIAC since those monies were classified by the Internal Revenue Service as income to the corporation, and the three year statute of limitations on income tax refunds has long since run. However, we note the hearing officer’s finding that Rolling Oaks gained some tax benefits from reporting the premiums as revenues, and we further note that appellant did not adduce evidence as to how much, if any, income tax it actually paid on the subject monies. Neither have we overlooked the case of Deltona Corp. v. Mayo, 342 So.2d 510 (Fla.1977). The Deltona case is clearly distinguishable, and actually supports the PSC action complained of here in that it affirmed the authority of the PSC to investigate and determine whether there had been any CIAC and the amount thereof, if any. The actual holding of the Delto-na court was that the PSC may not “impute” some indefinite, unknown amount of CIAC to a utility where the PSC’s own staff analysis indicated that there was no CIAC, and where the company’s books and accounts had been audited and determined to be correct and kept in accord with PSC accounting rules. Tamarac Utilities, Inc. v. Hawkins, 364 So.2d 437 (Fla.1978). Here, the PSC did not “impute” some speculative amount of CIAC, but rather investigated the financing of appellant’s sewer system and determined that a specific isolable sum ($500 for each of the 634 lots sold in units 4, 5, and 6 from 1969 to 1974) had been collected from the utility’s customers for the purpose of constructing the sewer system.

We do find, however, that the PSC abused its discretion in reversing the hearing officer’s determination that appellant should be permitted to bill its customers on a monthly, rather than quarterly, basis. The hearing officer found, and common knowledge confirms, that a quarterly billing cycle is unusual and is an exception to the prevailing practice in the utility industry. The appellant adduced evidence to show that a switch to monthly billing would enable the utility to more quickly detect and repair malfunctioning meters and leaks in its water lines, thereby minimizing lost revenues and assuring customers of more accurate billing. The hearing officer accepted this evidence, and further found that monthly billing would reduce the appellant’s working capital requirements. The only evidence tending to militate against a switch to monthly billing was the evidence that the more frequent billing would result in increased annual billing costs of some $22,600. Even though the appellant failed to prove the monetary value of the benefits which would accrue with the change to monthly billing, it unquestionably proved that there were benefits associated with monthly billing, both for it and for its customers. Because there was competent, substantial evidence to support the hearing officer’s finding that appellant should be permitted to bill on a monthly basis, we hold that the PSC’s reversal of the hearing officer’s determination on this issue was error. See, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Holden v. Florida Department of Corrections, 400 So.2d 142 (Fla. 1st DCA 1981).

AFFIRMED in part and REVERSED in part.

LARRY G. SMITH, J., concurs.

JOANOS, J., concurs in part and dissents in part.

JOANOS, Judge,

concurring in part and dissenting in part.

The order appealed from should be affirmed in total.

In cases such as this, where an agency has substituted some findings for those of a hearing officer, we are controlled by the principle of review set forth in McDonald v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977):

In determining whether substantial evidence supports the agency’s substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer’s contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight. . . .
At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the sub-stantiality of evidence supporting the agency’s substituted findings.

The hearing officer’s findings of fact did include a determination that certain favorable circumstances would be obtained by the utility in switching its billing cycle from quarterly to monthly. These were that the utility could more quickly detect and repair malfunctioning meters arid water leaks and that the utility’s working capital requirements could be reduced. He determined that the advantages of this were more accurate billing and a minimization of lost revenues. He also found that monthly billing is the usual method employed in the industry. The hearing officer, in effect, balanced the advantages for which no monetary value was proved against the costs of $22,600 to be passed on to the customers and concluded that the switch in billing should be authorized. The PSC, on the other hand, balanced the advantages against the costs to the consumer and reached the conclusion that the change should not be allowed. This was not a question as to the weight or credibility of the evidence. Nor is it a question of what was proved by the evidence. The question of whether the advantages to the utility outweighed the costs to the customer was one of opinion and loaded with policy considerations. Under the McDonald standard it was the PSC that had the “special responsibility” to consider the “policy considerations” involved in the decision and its exercise of that discretionary duty was not abused here.

      . This principle is also quoted with approval in Holden v. Florida Department of Corrections, 400 So.2d 142, 144 (Fla. 1st DCA 1981).


text:
    HILLSBORO-WINDSOR CONDOMINIUM ASSOCIATION, Appellant, v. DEPARTMENT OF NATURAL RESOURCES and Anders S. and Diann E. Billing, Appellees.
    No. AL-420.
    District Court of Appeal of Florida, First District.
    Aug. 6, 1982.

      Jane Heerema, Roberts, Egan & Routa, Tallahassee, for appellant.
    Henry Dean, Gen. Counsel, Dept, of Natural Resources, Tallahassee, for appellee Department of Natural Resources.
    Barrett G. Johnson, Barrett G. Johnson & Associates, Tallahassee, for appellee Billing.
   PER CURIAM.

Appellant asserts as error DNR’s issuance of a coastal construction control line permit to appellees without affording appellant a Section 120.57 hearing under the Administrative Procedures Act. We agree the permit was prematurely issued and reverse.

Appellees are in the midst of construction of a condominium on some beachfront property in Broward County. A controversy arose in 1981 concerning the appellees’ need for a construction control line permit pursuant to Section 161.053, Florida Statutes since the Broward County Construction Control Line became effective November 17, 1981. DNR determined that appellees were not exempt from the line restrictions and were not otherwise grandfathered in under the Department’s rules. The Billings sought review of this determination and also filed an application for permit.

The DNR staff objected to the permit as applied for and based on these objections, recommended denial of the permit. At its meeting on March 16, 1982, the Governor and Cabinet upheld the Department’s determination on the grandfather issue but deferred action on the staff recommendation to deny the permit. The staff was directed to work with appellees and to report back to the Cabinet at the next meeting with modifications to the permit application which would make it acceptable to the staff and allow a recommendation of approval. As directed, the staff drafted an agenda item for the April 6 Cabinet meeting recommending approval of the permit modified by the specific conditions mentioned in the item. Appellant, an association of adjacent property owners which had been a participant in the prior proceedings, agreed with the staff recommendation and did not oppose issuance of the permit subject to the conditions set forth in the staff recommendation.

At the April 6 Cabinet meeting, appellees urged a substitute motion for permit, application which contained different conditions than those recommended by the DNR staff. Just prior to the voice vote by the Governor and Cabinet, appellant’s attorney stated that if the vote was not in favor of the staff recommendation, then appellant intended to request a Section 120.57 hearing. The voice vote was not in favor of the staff recommendation, the Governor and Cabinet voting instead to grant appellees’ substitute permit application.

Appellant filed a request for an administrative hearing pursuant to Section 120.-57(1), Florida Statutes, on April 7, which was forwarded by the Executive Director of DNR to the DOAH, where it is now pending. DNR, taking the position it had no choice but to perform its ministerial duty of granting the permit after the Governor and Cabinet’s voice vote, entered a final order granting the permit on April 30.

The rule governing the procedure for processing coastal construction control line permits is Rule 16B-33.12, Florida Administrative Code. It requires DNR to provide notice to permit applicants and all persons requesting information of DNR’s intent to approve or deny a permit. The notice is to include the staff’s evaluation of a permit application, a statement of the time and place at which the application will be heard by the Cabinet aides and by the Governor and Cabinet and, finally, a statement that a hearing pursuant to Section 120.57, Florida Statutes, is waived unless requested within 14 days of receipt of the notice. In this case, appellant received notice of the staff recommendation of denial of the permit as applied for and of the substitute staff recommendation of approval of a modified permit on or about March 30, 1982. Appellant’s petition for a Section 120.57 hearing was filed on April 7, 1982, well within the 14 day period. Rule 16B-33.12(7).

Although as stated, appellant’s petition was timely filed, there is a further potentially complicating factor present in this case which merits discussion. Rule 16B-33.12(7) treats the DNR staff recommendation as the equivalent of a notice of intent of proposed final agency action for notice and waiver purposes. However, the final action taken is not always that which is proposed, as illustrated by the circumstances presented in this case. As occurred here, the Governor and Cabinet may override DNR’s staff recommendation and grant a permit with new and different conditions not theretofore contemplated by some or all of the parties. Rule 16B-33.-12(7) does not provide a clear point of entry for a party substantially affected by the action taken by the Governor and Cabinet under such circumstances. Capeletti Brothers, Inc. v. State, Department of Transpor- tation, 362 So.2d 346 (Fla. 1st DCA 1978). Under the rule, a substantially affected party may find himself responding to the argument that he has waived a hearing, even though the need for a hearing did not arise until after the 14 day period within which it could have been requested. Fortunately, because the notice containing the DNR substitute staff recommendation was received late by the appellant (March 30), appellant, once it learned that the Governor and Cabinet were not going to abide by the DNR staff recommendation with which appellant agreed and were going to allow the permit with allegedly less stringent conditions attached, was able to file its petition timely.

Nevertheless, appellees urge that appellant does not have standing to request a Section 120.57 hearing. The land surrounding Hillsboro-Windsor Condominium and the common areas of the building are owned by appellant association. Appellant, an adjacent property owner, has alleged that if appellees’ substitute permit is granted, its property will be eroded and destroyed. This sufficiently alleges appellant’s substantial interest in the outcome of these proceedings. Rule 16B-33.05(1), Florida Administrative Code. Greene v. State of Florida, Department of Natural Resources, 414 So.2d 251 (Fla. 1st DCA 1982), upon which appellees rely, is distinguishable. In Greene, the petitioner challenged the acquisition of a tract of land in Bro-ward County as part of the state’s environmentally endangered land purchase program but made no allegation whatsoever that he would be affected by the action taken by the Governor and Cabinet in accepting and approving the recommendation of acquisition. The petitioner therein was neither the owner, or adjacent owner, of any land in the Broward County parcel nor the owner of any land on the Committee’s acquisition list with a lower priority than Broward County parcel, or the owner of land not on the list which allegedly should have been on the list. Thus, this court affirmed DNR’s determination that the petitioner did not have standing.

The Governor and Cabinet’s action approving the substitute permit can be likened to a notice of intent to approve or deny a permit, which is characterized as merely a preliminary decision. Appellant’s subsequent and timely request for an administrative hearing initiated a de novo proceeding concerning appellees’ permit application. State Department of Transportation v. JWC Company, Inc., 396 So.2d 778, 786 (Fla. 1st DCA 1981). DNR’s issuance of a final order granting the permit is ineffective until the Section 120.57 proceedings are concluded and an order has been entered pursuant to Section 120.59, Florida Statutes. Capeletti Brothers, Inc. v. State, supra.

Accordingly, DNR’s action is reversed and the cause is remanded for proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.

      . The Governor and Cabinet act as the head of the Department of Natural Resources pursuant to Section 20.25, Florida Statutes (1981).

      . Appellees argue in this case that appellant waived a Section 120.57 proceeding because appellant did not file its petition within 14 days of the date it received notice of the agenda item for the March 16 cabinet meeting recommending denial of the permit. We are not persuaded by this argument and instead determine the March 30 date to be applicable for notice purposes in keeping with our expressed inclination to resolve such disputes in favor of the affected party. Capeletti, supra at 348.