author: HURLEY, Judge.

text:
    Rene PALARDY and Claudia Palardy, Appellants, v. Vladimar IGREC, Maria Igrec, DaRose Properties, Inc., a Florida Corporation, John Iwaskiewych and Vera Iwaskiewych, his wife and First Federal of Broward, Appellees.
    No. 79-1940.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 31, 1980.

      Howard L. Conklin of Tripp & Conklin, Fort Lauderdale, for appellants.
    Myron H. Burnstein of Salter, Yeslow & Burnstein, Hollywood, for appellees-Iwas-kiewych.
   HURLEY, Judge.

Appellants, defendants below, appeal from an adverse final judgment. We affirm in part and reverse in part.

Appellants, Mr. and Mrs. Palardy, purchased a motel in Hollywood, Florida. In doing so they assumed two existing mortgages and gave the sellers a purchase money mortgage. Thus, the motel was encumbered by a first, second and third mortgage. On November 17, 1978, the second mortgage holders filed an action to foreclose their mortgage. The complaint alleged that the Palardys defaulted on the note and mortgage by failing to make the October 1, 1978 payment ($305.00-interest on the principal) and a subsequent balloon payment. The first and third mortgagees were also named as defendants in this action.

Next, the holders of the third mortgage filed a cross complaint against the Palardys seeking to foreclose the third mortgage. It was alleged that the Palardys defaulted on the second mortgage which under the terms of the third mortgage entitled the third mortgagee to immediate foreclosure. The litigation then proceeded with both the second and third mortgagees filing motions for summary judgment. Each movant also filed an affidavit in support of the motion for summary judgment. The Palardys responded by filing a counter-affidavit which contained the following averments regarding the second mortgage:

1. That interest on the note sued upon by Plaintiffs was timely made for the October 1, 1978 payment.
2. That Plaintiffs did not allow the 30 days grace period as provided for in Paragraph 7 of the mortgage agreement.

Prior to the summary judgment hearing, the third mortgagee paid the second mortgagee the full amount due under the second mortgage. The court then entered an “order of redemption” containing the following decretal provisions:

1. Plaintiffs’ [second mortgagees] Motion for Summary Judgment be, and the same is granted.
2. The redemption by defendants, cross-plaintiffs, JOHN IWASKIEWYCH and VERA IWASKIEWYCH [third mortgagees], is confirmed, and the amounts paid therefor may be added to the amounts due crossplaintiffs under their mortgage, as may be ultimately determined by the court.
3. This cause is hereby dismissed, with prejudice, as to VLADIMAR IGREC and MARIA IGREC [second mortgagees/plaintiffs in this action], Da-ROSE PROPERTIES, INC., and FIRST FEDERAL OF BROWARD [first mortgagee], and shall continue on the crosscomplaint of JOHN IWASKIEWYCH and VERA IWASKIEWYCH, who shall be substituted as parties plaintiff.
4. The motion for summary judgment of defendants, crossplaintiffs, JOHN IWASKIEWYCH and VERA IWASKIEWYCH, is hereby denied, and final hearing in this cause is hereby set for July 16,1979, at 1:30 p. m.
DONE AND ORDERED in chambers, Broward County Court House, Fort Lauderdale, Florida this 21st day of February, 1979.

Inasmuch as the above order permitted the third mortgagees to be substituted as plaintiffs in place of the dismissed second mortgagees, the court also permitted the Palardys to file a crossclaim or what ought to have been denominated as a counterclaim against the third mortgagees/now — plaintiffs. The crossclaim sought rescission of both the contract to purchase the motel and the deed, due to alleged fraud and misrepresentation by the sellers/third mortgagees/now — plaintiffs. As framed by the pleadings, there remained two issues for trial: (1) the third mortgage holders’ right to foreclose their mortgage and (2) the purchasers’/mortgagors’ action for rescission. After a bench trial, the court found that the Palardys had failed to establish fraud sufficient to justify rescission; it further held that the third mortgagees were entitled to foreclosure. A final judgment was entered granting foreclosure on the third mortgage and entitling the third mortgagees to receive the sum of $168,155.41. That amount was subdivided as follows:

Principal [third mortgage] .... $98,736.90 Interest 11/3/78 through
8/3/78 (sic) . 7,351.70
Payment to second mortgagee
(Igrec) . 45,031.71 Interest 2/11/79 through
8/3/79 . 2,035.60
Attorney’s fee awarded . 15,000.00
$168,155.41 (sic)

The Palardys raise two points on this appeal from the final judgment. First, they claim that the court’s verdict on their cross complaint for rescission was against the manifest weight of the evidence. Second, they argue that the trial court erred in granting summary judgment to foreclose the second mortgage since there existed genuine issues of material fact. Assuming this to be true, they continue, the court erred in granting foreclosure on the third mortgage because the latter action was exclusively predicated on the second mortgagee’s right to foreclose.

We start with the issue of rescission and note that a trial court’s judgment comes to us clothed with a presumption of validity and correctness. Southeast Bank of Deerfield Beach v. Ralph C. Jackson Realty, Inc., 354 So.2d 1217 (Fla. 4th DCA 1978). It is the prerogative of the trial court to evaluate and weigh conflicting testimony after observing the bearing, demeanor and credibility of the witnesses in court. Shaw v. Shaw, 334 So.2d 13 (Fla. 1976). Indeed, it is the duty of this court to affirm a judgment which is supported by competent evidence. Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972). Applying these standards to the evidence adduced below, we conclude that the trial court’s judgment on the issue of rescission is supported by competent evidence and consequently we affirm that portion of the judgment.

As we move to the second issue on appeal, the propriety of granting summary judgment to foreclose the second mortgage, we meet appellees’ strenuous objection that this argument comes too late, that no timely appeal was taken from the order of redemption. and that, consequently, the Palar-dys are precluded from questioning the summary judgment at this time. In short, appellees argue that the summary judgment and the matters litigated therein are res judicata and bind the parties in this action. The Palardys respond that the order of redemption was non-final and not subject to interlocutory appeal. They claim that the instant final judgment is the first opportunity that they have had to seek appellate review.

We have studied the order of redemption and conclude that the appellants are correct. It is a non-final order not subject to interlocutory appeal and, therefore, appellants may now test its validity. Our decision is based on the line of cases holding that an order which grants summary judgment but fails to contain the traditional words of a final judgment or their equivalent is a non-final order not subject to interlocutory appeal. McCready v. Villas Apartments, 379 So.2d 719 (Fla. 5th DCA 1980); Bailey v. Allstate Insurance Co., 218 So.2d 761 (Fla.2d DCA 1969); Pompano Paint Co. v. Pompano Beach Bank and Trust Co., 208 So.2d 152 (Fla. 4th DCA 1968); Williams v. Maddren, 147 So.2d 572 (Fla.2d DCA 1962). We find further support for this conclusion in the language of the order itself. Its verbiage explicitly contemplates the eventual entry of a final judgment and, consequently, it cannot be said that the order of redemption evidences the end of judicial labor, or is the pronouncement of the ultimate conclusion of the court upon the case. Cf. Slatcoff v. Dezen, 72 So.2d 800 (Fla.1954); Wolf v. Cleveland Electric Co., Inc., 58 So.2d 153 (Fla.1952); Foley v. State ex rel. Gordon, 50 So.2d 179 (Fla.1951); Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980).

The order of redemption in this case dismissed the plaintiff/second mortgagee/movant for summary judgment, with prejudice. We acknowledge that other courts have considered a dismissal with prejudice as a factor pointing toward finality. Slatcoff v. Dezen, supra; Hotel Roosevelt Co., Inc. v. City of Jacksonville, 192 So.2d 334 (Fla. 1st DCA 1966). However, the .dismissal in the case at bar was not causally related to the court’s decision to grant summary judgment and, therefore, is not indicative of finality. The original plaintiffs were dismissed only because the third mortgagees fully satisfied the second mortgage and thereby became entitled to step into the shoes of the original plaintiffs with all the rights, privileges and obligations entailed therein. While the parties may have intended that the order be final, it fails to meet the established criteria for finality.

Thus, we consider appellants’ contention that the trial court erred in granting summary judgment to foreclose the second mortgage. As we noted earlier, affidavits were filed in support of, and in opposition to, the motion for summary judgment. Looking at the second mortgagees’ affidavit, we find it incorporated the allegations of the complaint by reference and thereby averred in part that the payment due on October 1,1978, was not made. The Palardys’ affidavit directly contradicted this and expressly stated that the payment was made. The affidavits are in irreconcilable conflict which demonstrates the existence of a genuine issue of material fact and which precludes the entry of summary final judgment. Pompano Paint Co. v. Pompano Beach Bank & Trust Co., supra. In reaching this decision we have limited ourselves to the most obvious ground presented by the affidavits and have not treated appellants’ affirmative defense and assertion in the affidavit that the second mortgagee failed to allow a thirty day grace period prior to instituting suit.

We are aware of the third mortgagees’ contention that they are entitled to foreclosure because of the provision in the third mortgage which merely requires a finding of default on the second mortgage as opposed to foreclosure. While this provision admittedly exists, appellees did not prove a separate default at trial. All the evidence offered to justify foreclosure of the third mortgage hinged on the order of redemption and the fact that the trial court granted summary judgment to foreclose the second mortgage. Thus, according to ap-pellees’ trial strategy, the right to foreclose the third mortgage was solely predicated upon the right to foreclose the second. Since we have decided that summary judgment was improvidently entered to foreclose the second mortgage, we must reverse the foreclosure of the third as well.

Accordingly, the judgment is affirmed in part and reversed in part and the cause is remanded for further proceedings consistent with this opinion.

MOORE and BERANEK, JJ., concur.

      . The complete text of the order is as follows: (Caption)
      ORDER OF REDEMPTION
      THIS MATTER having come on to be heard on Motion for Summary Judgment of plaintiffs, VLADIMAR IGREC and MARIA IGREC, and defendants, crossplaintiffs, JOHN IWASKIEWYCH and VERA IWASKIE-WYCH, with Jack L. Herskowitz appearing in behalf of plaintiffs, Myron H. Burnstein

        appearing in behalf of defendants, crossplain-tiffs, JOHN IWASKIEWYCH and VERA IWASKIEWYCH, and Howard L. Conklin appearing in behalf of defendants, RENE PA-LARDY and CLAUDIA PALARDY, and no one appearing for the remaining defendants, and it appearing in open court that the defendants, crossplaintiffs, JOHN IWASKIE-WYCH and VERA IWASKIEWYCH, have made and tendered to plaintiffs, VLADIMAR IGREC and MARIA IGREC, and plaintiffs have acknowledged and received, the sum of $45,031.71, comprising principal in the amount of $41,838.21, interest in the amount of $1,605.00, and costs and attorney’s fees in the amount of $1,588.50, in redemption and satisfaction of plaintiffs’ mortgage, the court is of the opinion that the same represents complete redemption of plaintiffs’ mortgage lien, and accordingly, it is, upon stipulation,
      ORDERED AND ADJUDGED as follows:
      1. Plaintiffs’ Motion for Summary Judgment be, and the same is granted.
      2. The redemption by defendants, cross-plaintiffs, JOHN IWASKIEWYCH and VERA IWASKIEWYCH, is confirmed, and the amounts paid therefor may be added to the amounts due crossplaintiffs under their mortgage, as may be ultimately determined by the court.
      3. This cause is hereby dismissed, with prejudice, as to VLADIMAR IGREC and MARIA IGREC, DaROSE PROPERTIES, INC., and FIRST FEDERAL OF BROWARD, and shall continue on the crosscomplaint of JOHN IWASKIEWYCH and VERA IWASKIE-WYCH, who shall be substituted as parties plaintiff.
      4. The motion for summary judgment of defendants, crossplaintiffs, JOHN IWASKIE-WYCH and VERA IWASKIEWYCH, is hereby denied, and final hearing in this cause is hereby set for July 16, 1979 at 1:30 p. m.
      DONE AND ORDERED in chambers, Bro-ward County Court House, Fort Lauderdale, Florida this 21st day of February, 1979.
      /s/ Russell E. Seav. Jr.
      CIRCUIT COURT JUDGE
      Receipt of the sum of $45,031.71 in behalf of the redemption aforesaid is hereby acknowledged.
      /s/ Jack L. Herskowitz
      Jack L. Herskowitz as Attorney for Vladimar Igrec and Maria Igrec
      copies furnished counsel.

      . Paragraph ten of the third mortgage states: That the whole of said principal sum shall immediately become due at the option of the Mortgagee, after default in the performance of any of the terms, provisions, covenants, or agreements contained in any prior mortgage that may be a superior lien upon said premises or should any action be commenced to foreclose any such prior mortgage.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE FARM LIFE INSURANCE COMPANY, Appellant, v. Andres DE LA ROSA and Nereida de la Rosa, his wife, Appellees.
    No. 79-1951.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 28, 1980.

      G. William Allen, Jr. of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellant.
    Douglas M. Bates, Pompano Beach, for appellees.
   PER CURIAM.

Robert de la Rosa was issued a life insurance policy for $20,000 from appellant State Farm Life Insurance Company on December 12, 1972. De la Rosa died in an auto accident on December 21, 1977. State Farm denied a claim for policy benefits made by his parents, beneficiaries, on the basis that the policy lapsed due to nonpayment of the premiums. All of the accumulated dividends had been applied to the policy payments in 1977 to the extent that the 31 day grace period provided for in the policy began to run on November 12, 1977. The pertinent dividend provision of the policy states:

“Annual Dividends.
Annual dividends such as the company may apportion shall be payable at the end of each policy year after the first while this policy is in force other than as extended term insurance.”

On December 12, 1977, de la Rosa was entitled to a dividend if the policy was in force and all premiums to that date are paid. The dividend of $24.00, if applied to premium payment, would have carried the policy through the date of death. The policy would have lapsed on November 12, 1977 as a premium of $19.30 was then due, but for the provision of the grace period.

“Grace Period
A grace period of thirty-one days shall be allowed following the due date for the payment, without interest, of any premium after the first. During such grace period this policy shall remain in force but if a premium due on such date is not paid before the end of such grace period this policy shall lapse except as provided in Credits to Avoid Lapse and if applicable, Automatic Premium Loan.”

We hold that the policy was “in full force” during the grace period and that the dividend of December 12,1977, should have been applied to payment of the premium in default. The policy provides:

Credit To Avoid Lapse.
Any dividend credits as defined in the Dividend Provisions of this policy shall be applied toward the payment of any premium unpaid at the end of the grace period . ...

See Kelly v. John Hancock Mutual Life Insurance Co., 136 F.Supp. 539 (F.D.N.Y. 1955).

Appellant contended that the insured was barred from entitlement to the dividend because the extended term coverage was in effect from November 12, 1977. In this case, the extended term coverage as provided in the policy should have been issued at the end of any grace period if it became appropriate, rather than at the beginning in accordance with the policy language:

“This provision shall be automatically applied if any premium or balance thereof remains unpaid at the end of the grace period after application of any dividend credits in accordance with the Credits To Avoid Lapse provisions and if applicable, the Automatice Premium Loan Provision.”

The evidence reflects that the company triggered the extended term provision of the policy on November 12,1977, instead of at the end of the grace period. The effect of the premature triggering of the extended term provision would be to preclude use of the dividends for payment of premiums. We hold this was an improper construction of the policy.

The policy in this case as written by the Company is more favorable to the insured than the language of Chapter 627, Florida Statutes. The statute is therefore inapplicable to this case.

In view of the foregoing the judgment appealed from is affirmed.

AFFIRMED.

DOWNEY and HURLEY, JJ., and SHARP, G. KENDALL, Associate Judge, concur.


author: HENDRY, Judge. NESBITT, Judge

text:
    JACKSON VITRIFIED CHINA COMPANY, Appellant, v. PEOPLE’S AMERICAN NATIONAL BANK OF NORTH MIAMI et al., Appellees.
    No. 79-1837.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Greenberg, Reiseman & Lamont and L. Richard Mattaway and Howard J. Levine, for appellant.
    Leib & Popper, P. A. and Stephen D. Thompson, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

One Ehrlick stole from appellant approximately $120,000 in checks representing appellant’s accounts receivable, and deposited them in an account which he had opened with appellee bank for the purpose of converting them into cash. The account was in appellant’s name, but Ehrlick, who had falsely represented himself as the sole proprietor of the business, had sole access to the account. The deposits were effected through Ehrlick’s forged endorsement of that name on the reverse side of the checks.

Approximately twenty percent of the total sum deposited had been withdrawn from the account before the fraud was discovered. All of the remaining deposits having been returned to appellant by appellee bank, the sole remaining question concerns the bank’s liability, if any, to appellant, for those sums withdrawn by the forger.

The ultimate liability of appellee, which was both depositary and collector, is not at issue. Appellant’s clear cause of action was against the drawee banks, under § 673.-419(l)(c) (1975), UCC § 3-419(l)(c) (1962), for conversion of funds properly payable to appellant as payee. Alternatively, appellant might have brought actions against its customers, the drawers of the checks, under § 673.804, Fla.Stat. (1975), UCC § 3-804 (1962). In that event, such drawers would have had recourse to their drawee banks for improper payment on the checks, under § 674-401, Fla.Stat. (1975), UCC § 4-401 (1962). At that juncture, the drawee banks would have sued the collecting bank, appel-lee herein, for breach of warranties of title under §§ 673.417(2), 674.207, Fla.Stats. (1975), UCC §§ 3 — 417(2), 4-207 (1962). Ap-pellee would have been left to its scant remedy against the forger.

Appellant chose, however, to sue the collecting bank directly. The issue is whether or not such a direct action must yield the same result as that more certainly obtainable in an action either against the drawee banks, or the drawers, appellant’s customers. Based upon our analysis of the applicable Code provisions, we must answer in the negative.

Appellant’s action below was for conversion, under § 673.419, Fla.Stat. (1975), UCC § 3-419 (1962):

(1) An instrument is converted when:
(C) It is paid on a forged indorsement.

The section is followed by Official Comments, which were submitted by the drafters of the Code to aid in uniform construction, and in coherent integration with other sections. Uniform Laws Annotated, UCC III, LXIII. Appellee’s liability for conversion by payment on forged instruments seems clear by reference to subsection (l)(c), above, and doubly so by reference to its Comment:

[Pjayment on a forged indorsement . . , even though made in good faith [,] . is an exercise of dominion and control over the instrument inconsistent with the rights of the owner, and results in liability for conversion.

Comment 3 to UCC § 3-419(l)(c) (1962), § 673.419, Fla.Stat. (1975).

The validity of such an easy conclusion is cast in serious doubt by the terms of subsection (3), through which appellee seeks to exculpate itself:

(3) Subject to the provisions of this code concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.

A determination of whether appellee collecting bank may properly avail itself of subsection (3) defenses turns on a construction of its terms.

Recourse to Florida precedent indicates that the applicability of the subsection (3) defense to facts such as those sub judice has been assumed, without challenge, until now. See FDIC v. Marine National Bank of Jacksonville, 431 F.2d 341 (5th Cir. 1979); Pan American Bank of Orlando v. Yanow, 372 So.2d 1126 (Fla. 4th DCA 1979); Dade County v. Florida Mining and Material Corp., 364 So.2d 31 (Fla.3d DCA 1978); Siegel Trading Co., Inc. v. Coral Ridge National Bank, 328 So.2d 476 (Fla. 4th DCA 1976); Keane v. Pan American Bank, 309 So.2d 579 (Fla.2d DCA 1975); Robert A. Sullivan Construction Co., Inc. v. Wilton Manors National Bank, 290 So.2d 561 (Fla. 4th DCA 1974); Messeroff v. Kantor, 261 So.2d 553 (Fla.3d DCA 1972). See generally Murray, Commercial Law, 31 U.Miami L.Rev. 895, 916-17 (1977); Murray, Commercial Law, 30 U.Miami L.Rev. 63, 92-93 (1975). Courts of other jurisdictions have, however, closely analyzed its terms.

Judicial application of subsection (3) to suits by a payee against a collecting bank has been strict. Courts generally have held that collecting banks have not qualified for the defense, either because of bad faith or through commercially substandard action. See, e. g., Berkheimers, Inc. v. Citizens Valley Bank, 270 Or. 807, 529 P.2d 903 (1974); Belmar Trucking Corp. v. American Trust Co., 65 Misc.2d 31, 316 N.Y.S.2d 247 (Civ.Ct. 1970); Salesman v. National Community Bank of Rutherford, 102 N.J.Super. 482, 246 A.2d 162 (Super.Ct. Law Div.1968), aff’d 105 N.J.Super. 164, 251 A.2d 460 (Super.Ct. App.Div.1969).

Most jurisdictions have at least nominally recognized the impact of subsection (3) to facts such as ours. However, several courts, most notably in California and Pennsylvania, have held that, by its terms, subsection (3) does not apply to suits by payees against depositary/collecting banks for payment of checks bearing forged endorsements.

In Ervin v. Dauphin Trust Co., 84 Dauph. 280, 38 Pa.D. & C.2d 473 (C.P.1965), it was held that payment on a check was not payment of “proceeds”, as the term is used in subsection (3). Rather, such payment constitutes an extension of provisional credit to the customer by reduction of the bank’s cash-on-hand; only when the check is collected from the drawee bank does the collecting bank hold “proceeds.” Thus, according to this argument, since the collecting bank paid out its own cash, and not “proceeds,” it must remit to the payee such remaining “proceeds,” as required by the terms of subsection (3).

The Ervin court posited an alternative reason for its rejection of subsection (3) applicability: Where the check is cashed, the bank is not acting as a “representative,” rather, it has in fact purchased the check. Since the bank is not a representative, subsection (3) does not come into play.

While these basic themes, with varying elaborations, have found judicial acceptance in other jurisdictions, we remain unconvinced.

The former argument, regarding “proceeds”, fails on our facts. The record reflects that the payments in question were not made until the process of collection was completed; thus, the transfer was made from actual “proceeds.”

In any event, we find no evidence that such a strained construction of the term “proceeds” was intended by the drafters of the Code. To the extent that a distinction is drawn regarding the time of payment vis a vis the time of collection, such a distinction is artificial; to the extent no distinction is made, the provision is rendered nugatory. Such an intent could not have been intended.

The alternative argument of Ervin and Cooper, supra, regarding the term “representative,” is more inviting.

“ ‘Representative’ includes an agent, . or any other person empowered to act for another.” § 671.201(35), Fla.Stat. (1975), UCC § 1-201(35) (1962). And until the process of collection is completed, a collecting bank is indisputably an agent of its customer. § 674.201, Fla.Stat. (1975), § 4-201 (1962). When the collection is finally made, the bank becomes a debtor. Comment 4 to § 674.201, § 4-201. At that point, the bank is no longer a “representative,” and the subsection no longer applies.

This construction suffers from the same deficiency as does the argument regarding “proceeds”: There is simply no reason to suppose that such an interpretation was intended by the drafters of the Code. By so reading subsection (3), we would limit the availability of the defense to that period of time necessary to effect collection on the checks; once collection were completed, the defense would disappear, because the bank would cease to act as an agent. We cannot conceive of a justification for such a “springing liability,” especially where based upon a transmogrification specifically disavowed by Comment 1 to § 674.201, Fla.Stat. (1975), UCC § 4-201 (1962), from which the distinction is drawn. Absent such a justification, or a much clearer expression of intent, we will not endorse that construction.

The one point of universal agreement with regard to subsection (3) is that it is one of the most ambiguous provisions in the Code. Thus, the most believable argument against its application to the facts sub judi-ce does not consist in definitional hair-splitting; rather, it is arguable that subsection (3) was intended to apply to an entirely separate situation, and that it was drawn more broadly than was intended.

The earliest ancestor of subsection (3) appeared in the May 1949 Draft of Article 3:

A representative who in good faith has dealt with an instrument or its proceeds is not liable for conversion even though his principal was not the owner of the instrument.

ALI & National Conference of Commissioners on Uniform State Laws, Uniform Commercial Code § 3-427 (May 1949 Draft). The purpose of the section was avowed to be adoption of

the rule of decisions which have held that a broker who sells a negotiable instrument for his principal in good faith, and in good faith turns over the proceeds to the principal, is not liable for conversion of the instrument. Its negotiable character protects him as it protects the purchaser in due course.

Id., and Official Comment.

The November 1951 Draft contained the changes which comprise the present subsection (3). Thus, it was at that juncture that a provision protecting brokers of negotiable securities from liability to the true owners of those securities was grafted onto the provisions relating to payment on forged endorsements, with the inclusion of the phrase “including a depositary or collecting bank.” At that juncture, the Official Comment relating to the provision read much as it does today (Comment 5):

Subsection (3), which is new, is intended to adopt the rule of decisions which has held that a representative, such as a broker or depositary bank, who deals with a negotiable instrument for his principal in good faith is not liable to the true owner for conversion of the instrument or otherwise, except that he may be compelled to turn over to the true owner the instrument itself or any proceeds of the instrument remaining in his hands.

It appears that, at that time, subsection (3) was still intended to apply solely to brokers, including banks acting as brokers, of negotiable securities. This is seen from the language which purports to derive the provision from the “rule of decisions”: The common law created a clear remedy for a payee against a collecting bank which paid a check on a forged endorsement, See, e. g., Lindsley v. First National Bank of Philadelphia, 32 Pa. 393, 190 A. 876 (1937); National Union Bank of Maryland v. Miller Rubber Co. of New York, 148 Md. 449, 129 A. 688 (1925); United States Portland Cement Co. v. United States National Bank of Denver, 61 Colo. 334, 157 P. 202 (1916), so whatever subsection (3) applied to, it was not banks acting in their normal banking capacity.

Thus, the dispositive question: Was the inclusion of subsection (3), as it appeared in the Final 1962 Draft (from which our statute is derived), intended to change the common law by removal of a remedy of the payee in instances of good faith, commercially responsible banking activity?

We must answer in the affirmative, because of the language of Comment 6 to § 673.419, UCC § 3-419:

The provisions of this section are not intended to eliminate any liability on warranties of presentment and transfer (Section 3-417). Thus a collecting bank might be liable to a drawee bank which had been subject to liability under this section, even though the collecting bank might not be liable directly to the owner of the instrument.

Faced with the reasonably clear intention of the drafters of the Code, our sole remaining task is the choice between following what appears to be bad law, or “adapting” that law to what we perceive to be commercial reality, as some other states’ courts have done.

Our role commands adherence to lawful legislative decree. A judicial assay into lawmaking is inappropriate; moreover, the false assumption of power to do so diminishes public respect for our lawful authority, which is essential to a government of laws.

We believe that the laws of commerce would benefit by the absence of § 673.-419(3), Fla.Stat. (1980), UCC § 3-419(3) (1962). Certainly, Florida payees would so benefit, since collecting banks are nearly always accessible in state courts: By direct action, a single and convenient determination of rights could be effected. The impact of the provision is to create the need for as many actions as there are drawers or drawee banks, many of which may be foreign, especially where a payee’s business is interstate in nature. Moreover, to the extent such drawees do not absorb their losses or negotiate a settlement with the collecting bank, they may well have to undertake distant litigation (here) against the collecting bank. Presumably, even a recalcitrant collecting bank would often prefer a single adjudication of liability than defend several suits for parts of the whole. The only possible advantage to subsection (3) is that it allows the banking community to conduct whatever customary resolution of accounts it has evolved for the spreading of risks. Absent a showing to the Legislature that such customary resolution results in a net state societal gain, via benefit to the banking community, over the known disadvantages-mainly, high costs of collection-to payees and drawers, we perceive the statutory provision to have been ill-conceived, as engendering a landslide of litigation inconsistent with the basic thrust of the Code toward simplification of commercial practice and remedy. § 671.102(2)(a), Fla.Stat. (1975), UCC § l-102(2)(a) (1962).

It is the law, nonetheless, and we are bound by its terms. Thus, we affirm.

Affirmed.

NESBITT, Judge

(specially concurring):

I concur in the result because I find the Bank was entitled to assert the defense of good faith under Section 673.419(3), Florida Statutes (1975).

      . Why the common law was abrogated in subsection (3) is not clear. The doctrine of a collector’s ultimate responsibility to a true payee for payment on a forged endorsement was an element of the laws of commerce from as early as 1607. Pragmatic a III de Litteris Cambii, Nov. 8, 1607, art. 14. European Continental adoption of the 1931 and 1932 Geneva Uniform Codes on Bills of Exchange and Checks effected a general divergence between the Continental and Anglo-American laws mercantile on this point. The Geneva Codes’ absolvance from liability of bona fide endorsees was itself derived from the German law. Preussisches Landrecht of 1794, II 8 §§ 835, 1156, 1169; Allgemeine Deutsche Wechselordnung of 1848, arts. 36, 74, 76. Whether subsection (3) defenses reflect the influence of the Geneva Codes, or whether they merely suggest that bankers were “doubtless at work in the drafting of Section 3-419(3) . . .”, J. White & R. Summers, Handbook on the Law Under the Uniform Commercial Code 505 (1972), is an open question.


author: SCHWARTZ, Judge.

text:
    Diego TRINIDAD, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2041.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 22, 1980.

      Hubbart, Pitts & Wilson and Gerald D. Hubbart, Miami, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

Relying on Sarmiento v. State, 371 So.2d 1047 (Fla.3d DCA 1979), cert. granted and pending, Fla.Sup.Ct., Case no. 57,173, the appellant-defendant contends that the trial judge should have suppressed the testimony of police officers who overheard his drug-related conversations with an undercover officer equipped with a “body bug” for which an intercept warrant had not been obtained. Even assuming the continuing viability of Sarmiento as to its own facts, see contra, State v. Scott, 385 So.2d 1044 (Fla. 1st DCA 1980), we find that the case is closer to and is controlled instead by Franco v. State, 376 So.2d 1168 (Fla.3d DCA 1979), cert. denied, 386 So.2d 636 (Fla.1980). This is so because the conversation in question did not take place in the defendant’s home, but in the “residence” of a codefendant. See also, Preces v. State, 378 So.2d 77 (Fla.3d DCA 1979).

Furthermore, the admission of the testimony of the officers who were outside the house could have been no more than harmless error, since it merely corroborated that of the undercover man, who himself related his transaction with the defendant. §§ 59.-041, 924.33, Fla.Stat. (1979). In this respect, too, the case is dissimilar to Sarmien-to. Unlike the undercover policeman involved in that case, the credibility and interest of the officer who testified in this one was not challenged below.

Affirmed.

      . We reached the same conclusion in a recent case involving virtually identical facts and contentions. Turnbull v. State, 386 So.2d 42 (Fla.3d DCA 1980).


author: NESBITT, Judge.

text:
    Leonard STEINER, Sheldon Munach, Oswaldo Valdes, Myriam Capati, Harry Schrier and Eduardo Darcy, Appellants, v. PHYSICIANS PROTECTIVE TRUST FUND, an unincorporated body, Appellee.
    No. 80-114.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 13, 1980.

      Burt E. Redlus, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for ap-pellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

Appellants, plaintiffs below, seek reversal of summary final judgment entered against them which denied their entitlement to dividends from the appellee, Physicians Protective Trust Fund (Trust Fund). We affirm the judgment.

The Trust Fund was established to defend and “pay all claims arising against the Members as a result of malpractice or negligence in the care and treatment of patients

The appellants were members during the years, 1976 and 1977, following which they withdrew from the Trust Fund. The low loss rate incurred by trust members enabled the Trust Fund to declare a credit “dividend” against the funds collected from the members during 1976 and 1977. The credit “dividend” was distributed only to members who renewed their coverage through December 31,1978. The credit “dividend” was in the form of a reduction in the premium for the remaining quarter of 1978. Such a reduction in premium was expressly authorized by the trust agreement in paragraph 15(m) which reads as follows:

(m) All portions of the Loss Account and the Loss Leveling Reserve Account not used for the payment of losses, the purchase of excess insurance, or the allowable expenses or reserves in any one year, shall be credited to the Loss Account of the Loss Leveling Reserve Account for succeeding years. Such credits shall be used to reduce the premium for succeeding years as allowed by excess carriers and the Department of Insurance. [emphasis added]

Appellants contend, and we agree, that a literal reading of paragraph 14 of the trust agreement provides for a distribution of dividends only in the event the Trust Fund is dissolved. Admittedly, the Trust Fund was not dissolved. Appellants also contend that the trustees are under a fundamental duty of loyalty to the beneficiaries of a trust to administer it only in the interest of the beneficiaries. Investors Syndicate of America, Inc. v. City of Indian Rocks Beach, Florida, 434 F.2d 871 (5th Cir. 1970). They argue that this is especially true because of the provisions of paragraph 15(n) which provides:

(n) In the event of exhaustion of the Loss Account and the Loss Leveling Reserve Account in any one year, the Trustees’ Account will be used to provide funds as necessary. If the Trustees’ Account is also exhausted, the Members of the Trust Fund may be subject to assessment for losses reported in the policy year.

Appellants argue that they are potentially subject to additional liability resulting from the depletion of the loss account resulting from the distribution of funds to reduce future premiums.

In affirming the trial judge’s ruling that the former members were not entitled to credits or refunds of premiums, we are not unmindful of equitable considerations. However, we also note that paragraph 15(g) of the trust agreement expressly provides:

(g) Notwithstanding any statement herein, liability of the Fund to the Members is specifically limited to such obligations as are set forth in the Indemnity Agreement attached hereto.

We observe that the Indemnity Agreement did not alter the provisions of paragraph 15(m), referred to above, by which members’ premiums were effectively reduced. We cannot and will not ignore the well settled rule that: •

[c]ourts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.

Beach Resort Hotel Corporation v. Wieder, 79 So.2d 659, 663 (Fla.1955). Accord, Home Development Company of St. Petersburg v. Bursani, 178 So.2d 113, 117 (Fla.1965); Simpson v. Young, 369 So.2d 376, 377 (Fla. 1st DCA 1979).

Accordingly, the summary final judgment in favor of the appellees is affirmed.

      . 14. In the event of the dissolution of this Trust, whether voluntary or involuntary, the Trustees shall distribute the monies, securities, rights, or property then in the Trust to the Members of the Trust in that proportion that the Members of the Trust paid premiums to the Trustees at the last date upon which such pre-mlums were collected from each Member. Such payments shall only be made after the Trustees have satisfied the requirements of all appropriate Florida laws or rules or regulations of the Insurance Department of the State of Florida in providing for appropriate reserves and other funds necessary to comply therewith.


text:
    441 DEVELOPMENT CORP., and Tiffany Co., Appellants, v. GOLD COAST CAPITAL CORPORATION, etc., Peninsular Title Insurance Co., Victor H. Semet, Ronald Jacobs, Samuel I. Gal, G. Anthony West, etc., et al., Appellees.
    No. 78-1711.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 30, 1980.
    Leo Greenfield and Marvin Michaels of Law Offices of Leo Greenfield, North Miami, for appellants.
    Marshall G. Curran, Jr. of Spear, Deuschle & Curran, P. A., Fort Lauderdale, for appellee, Gold Coast Capital Corp.
   PER CURIAM.

We find that there is no genuine issue of fact as to default or conspiracy and that the trial court was correct in entering summary judgment for appellee upon the complaint. Accordingly, we affirm the “Summary Final Decree of Foreclosure.”

We further find that the amended counterclaim did state a cause of action; consequently, it should not have been dismissed. However, appellees filed a motion for summary judgment on the amended counterclaim contemporaneously with their motion to dismiss. The trial court, having granted the motion to dismiss, did not rule on this motion for summary judgment. We see no genuine issue of material fact as to the matters raised by the aforesaid pleading and believe that the last mentioned motion should have been granted. Accordingly, we reverse the order granting the motion to dismiss, and remand for consideration of the motion for summary judgment not inconsistent herewith.

AFFIRMED in part, REVERSED in part, and REMANDED.

BERANEK, HERSEY and GLICK-STEIN, JJ., concur.


author: HERSEY, Judge.

text:
    Harriett AULETTA and Harry Auletta, her husband, Appellants, v. Claire Gordon FRIED and Travelers Indemnity Company, a Foreign Corporation, Appellees.
    No. 79-236.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 1980.
    Rehearing Denied Oct. 28, 1980.
    Robert D. Peltz and Rossman & Baum-berger, P. A., Miami, for appellants.
    David F. Cooney and Gordon James, III of Grimmett, Scherer & James, P. A., Fort Lauderdale, for appellees.
   HERSEY, Judge.

Harriett Auletta was injured in an automobile accident involving a two car collision at an intersection. Appellee, Claire Fried, was the driver of the other vehicle involved and she and her insurance carrier were defendants below. Final judgment was entered for the defendants and a motion for a new trial by plaintiffs was denied.

This appeal by plaintiffs is based upon evidentiary rulings by the trial court each of which is alleged to constitute prejudicial error requiring a new trial.

There were no available eye-witnesses to the accident other than the participants. Each had her own version of the event.

Appellant testified that on the day of the incident she was proceeding westerly on Southeast Seventh Street in Dania, Florida. Upon approaching the intersection to U. S. Highway 1, she stopped behind two other vehicles waiting for a red light to change. In due course she proceeded into the intersection on a green light whereupon her vehicle was struck on the left side by the front of appellee Fried’s vehicle.

Appellee indicates that she was proceeding north on U. S. 1 at speeds between 30 and 35 miles per hour. She came to a stop at the stop bar just south of the intersection with Southeast Seventh Street; the light changed and she' started to go forward. She' observed appellant’s vehicle in the intersection just before impact.

Obviously one of the parties’ versions of the accident more nearly approximates what actually transpired than the other. The light could not have been green to westbound traffic and green to northbound traffic simultaneously. It was as a result of efforts to resolve this impasse that the evidence objected to became involved.

In an attempt to reconstruct the accident for the jury appellee offered expert testimony as to the vehicles’ relative speeds and their configuration and angulation at the time of impact. The opinion of the expert witness was based upon a written estimate of the property damage to appellee’s car, one photograph of the damage to appellant’s car, some scene measurements (not including distances travelled by the vehicles after impact and not including skid marks) and the location of accident debris. The expert witness testified that he relied most heavily on the first two factors.

The evidence as to the first factor, property damage to appellee’s car, was in the form of a written damage estimate presumably prepared shortly after the accident by an unidentified adjuster representing Travelers Insurance Company. This report was introduced into evidence, over objection, through the testimony of appellee’s husband, apparently on the basis of some exception to the hearsay rule. The witness, who was unable to testify with any degree of specificity from his own recollection as to items of damage, used the report to refresh his recollection and the report itself was thereafter admitted into evidence.

The rule in Florida is firmly established that unverified out-of-court writings attempted to be introduced for the purpose of establishing the truth of matters contained in the writings constitute hearsay in exactly the same manner as out-of-court oral declarations. Precisely on point here is the following observation of the court in Garrett v. Morris Kirschman & Company, Inc., 336 So.2d 566 (Fla. 1976):

As a corollary to the rules allowing such wide latitude in the choice of writings as mnemonic aids, the writings used to prompt recollection are not necessarily admissible in evidence themselves. If a writing is admissible independently, its use to spur a witness’ memory does not disqualify it, but it cannot come into evidence on the coattails of the testimonial recollection it sparks.

Here the report was not prepared by the witness and therefore does not represent past recollection recorded. To the extent that the report refreshed the witness’ present recollection, testimony as to the contents of the report was admissible. The report itself, however, constituted hearsay. Pickrell v. State, 301 So.2d 473 (Fla.2d DCA 1974). Its admission was therefore error.

The opinion testimony was based in great part on that hearsay. The expert witness, Dr. Fogarty, testified that his conclusions were derived from consideration of various specific items of damage and the fact that certain parts of the vehicle were not damaged, as well as the fact that some damaged items were repairable while others required replacement. The expert witness applied the energy absorption theory in rendering his opinion. He pointed out that the depth of penetration into one vehicle by the other (between 8 and 10 inches) was important. This us illustrative of the extent of minute detail required for the energy absorption theory to give reliable results. The witness, Fried, was unable to testify to these matters in detail; therefore, the necessary detail must have been gleaned from the report itself since the report constituted the only evidence of damage to appellee’s vehicle. Consequently, the opinion of the expert was tainted. Since it is impossible to determine to what extent the jury relied on the expert testimony in reaching its verdict, a new trial is required.

We have not necessarily concluded that the report, if admissible, furnished an adequate basis, taken in conjunction with the single photograph showing damage to appellant’s vehicle, upon which a reliable expert opinion could be based. That issue need not be reached.

Having determined that prejudicial error requires reversal and a new trial we do not treat the additional points raised by appellant.

We reverse the final judgment and remand the cause for a new trial.

REVERSED AND REMANDED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    P. S. D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-988.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

P. S. D., a fifteen-year-old boy, was adjudicated delinquent for theft of a firearm, carrying a concealed firearm, and theft of a moped. The only viable issue on this appeal is the legality of the seizure of the person of this juvenile, which inevitably led to the discovery of evidence upon which he was adjudicated.

In March 1978, at about 8:00 p. m., Mr. Fernandez, an assistant manager of a Winn-Dixie grocery store, called the police. Police Officer Rudloff was immediately dispatched to talk to Fernandez. Fernandez briefly told Rudloff that he had been advised by a man whom he did not identify that two young black males were overheard saying, “We are going to take down the Winn Dixie store,” that both boys were wearing leather jackets, one was wearing a hat, and “they had left on a moped.”

Acting on this information, Rudloff, in his patrol car, circled the shopping center parking lot adjoining the store. Within about ten minutes, the officer spotted the appellant driving a moped, heading through the parking lot in the direction of Winn-Dixie. At about the same time, Rudloff saw another boy (later identified as George Norris) walking through the parking lot. The two boys met. Both were young and black; both were wearing three-quarter length leather jackets; Norris was wearing a hat; and, as stated, the appellant was driving a moped. Thus, in every respect the boys matched the description furnished to Rudloff. Rudloff approached them and told them to place their hands on his car with their feet back. They complied. As Rudloff began patting down Norris, he saw appellant put his hand in his belt and start to remove a revolver. The officer immediately grabbed the appellant, seized the weapon, and took the boys and the moped to the station. Subsequent investigation revealed that both the revolver and the moped had been stolen.

An anonymous tip may provide justification for a valid stop and frisk. Hetland v. State, 387 So.2d 963 (Fla.1980), adopting the opinion of the District Court in State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979); see also In the Interest of R, 387 So.2d 404 (Fla. 4th DCA 1980); Byrd v. State, 380 So.2d 457 (Fla. 1st DCA 1980). Our task is to evaluate the nature of the information contained in the tip along with the circumstances in the present ease to determine whether the anonymous tip contained sufficient indicia of reliability so as to credit the accuracy of its content and, if so, determine if it, along with other information which thereafter came to be known to the police officer, justified the stop.

In our view, the concurrence of the following factors requires us to conclude that the tip was reliable and the officer’s stop of the appellant justified: (1) the anonymous tip contained specific information and descriptions; (2) the information provided was fresh and immediately acted upon, see Lachs v. State, 366 So.2d 1223 (Fla. 4th DCA 1979); (3) the appellant and Norris met the descriptions given, were found within minutes at the location, and appellant was, as stated, on a moped, see Franklin v. State, supra; (4) the officer saw the appellant and Norris meet; (5) the information respected a prospective holdup and therefore gave rise to a founded suspicion of weapons being carried; and (6) the appellant and Norris were wearing leather jackets on a very warm night, which could serve to corroborate the suspicion that weapons were concealed and a holdup was intended. State v. Ramos, 378 So.2d 1294 (Fla. 3d DCA 1979); United States v. Mack, 421 F.Supp. 561 (W.D.Pa.1976), aff’d. 568 F.2d 77 (3d Cir. 1978). See generally In the Interest of R, supra; Franklin v. State, supra; Isham v. State, 369 So.2d 103 (Fla. 4th DCA 1979); State v. Hetland, supra. See also United States v. Legato, 480 F.2d 408 (5th Cir. 1973). The trial court correctly denied the appellant’s motion to suppress.

Affirmed.

      . We reject without further discussion appellant’s attack upon the insufficiency of the evidence to support a finding of guilt on the theft charges. § 812.022(2), Fla.Stat. (1977); State v. Young, 217 So.2d 567 (Fla.1968); Burroughs v. State, 221 So.2d 159 (Fla. 2d DCA 1969); Borghese v. State, 158 So.2d 785 (Fla. 3d DCA 1963).

      . Sometime after Officer Rudloff stopped the two boys, he learned of the informant’s identity.

      . In street jargon, hold up the store.

      . As we stated in Franklin v. State, 374 So.2d 1151, 1154 (Fla. 3d DCA 1979), the race of a person may be considered as an element of identification, but is surely not sufficient in itself to justify a stop.

      .Since a frisk of the appellant did not occur, we need not reach the question of whether it too would have been justified by the information known to the officer. See Lutz v. State, 354 So.2d 141 (Fla. 1st DCA 1978); cf. United States v. Pope, 561 F.2d 663 (6th Cir. 1977). It is our view, however, that a frisk of the appellant would have been justified in light of the nature of the intended crime and the unusual clothing worn by the appellant and Norris. See State v. Ramos, 378 So.2d 1294 (Fla. 3d DCA 1979). If that were insufficient, the movement of the appellant towards the revolver would have clearly cured the insufficiency. See State v. Francois, 355 So.2d 127 (Fla. 3d DCA 1978); United States v. Pope, supra. Of course, if the stop were unlawful, no lawful frisk can follow. United States v. Beck, 602 F.2d 726 (5th Cir. 1979).


author: HENDRY, Judge.

text:
    A & P BAKERY SUPPLY & EQUIPMENT COMPANY, a Florida Corporation, Appellant, v. Salameh K. HAWATMEH, Appellee.
    No. 79-1406.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Rehearing Denied Oct. 22, 1980.
    Greenfield & DuVal and Harvie S. Du-Val, North Miami, for appellant.
    Penzick & Parker, Rohan & Rohan and Lawrence J. Rohan, Miami, for appellee.

      Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

The parties entered into discussions regarding the sale to appellee of a damaged commercial oven owned by appellant. A jury found that those discussions culminated in a contract, which appellant breached by his sale of the oven to a third party. We are not disposed to reverse the findings of the jury in that regard. However, we reverse that portion of the verdict pertaining to appellee’s damages award, and remand for new trial on that issue.

When appellant sold the defective oven, and thereby breached his contract for sale to appellee, appellee covered his loss shortly thereafter by the purchase of a used oven for less than one quarter of the price which he had negotiated for the purchase of appellant’s equipment. It appears, and it is not disputed, that the oven ultimately purchased by appellee is the functional equivalent of the more expensive model.

Although the trial judge warned the jury that their damages award should not be based upon speculation or conjecture, he allowed, with that caveat, their consideration of the issue of lost profits stemming from appellant’s breach. This was error.

The law regarding damages for loss of profits has been clearly fixed: Although

[t]he well-recognized general rule in this state is that anticipated business profits are too remote, speculative and contingent to warrant a judgment for their loss, ....

Touchette v. Bould, 324 So.2d 707 (Fla. 4th DCA 1975), nevertheless,

[i]n Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936), the Supreme Court held that “if prospective profits form an elemental constituent of the contract, their loss, the natural result of its breach, and the amount can be established with reasonable certainty, such certainty as satisfied the mind of a prudent and impartial person, they are allowed. The requisite to their allowance is some standard, such as regular market values, or other established data, by reference to which the amount may be satisfactorily ascertained.” [Emphasis supplied]

Welbilt Corp. v. All State Distributing Co., 199 So.2d 127 (Fla.3d DCA 1967).

Appellee’s business venture was in its inception at the time of appellant’s breach, and therein lies the trial court’s error: Proof of profits for a reasonable time anterior to the breach is required to establish lost profits. New Amsterdam Casualty Co. v. Utility Battery Manufacturing Co., 122 Fla. 718, 166 So. 856 (1936); Innkeepers International, Inc. v. McCoy Motels, Ltd., 324 So.2d 676 (Fla. 4th DCA 1975), cert. denied 336 So.2d 106 (Fla. 1976); Conner v. Atlas Aircraft Corp., 310 So.2d 352 (Fla.3d DCA 1975), cert. denied 322 So.2d 913 (Fla. 1975); Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla.3d DCA 1972), cert. denied 285 So.2d 18 (Fla. 1973). Where a record of past profitability is unavailable to inform a jury’s deliberations, any finding it might make regarding lost profits must be purely speculative. Since appellee cannot establish past profits, he cannot claim lost profits resulting from appellant’s breach.

On remand, damages should be determined in accordance with Section 672.-712, Florida Statutes (1979):

(2) The buyer may recover from the seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages . . . but less expenses saved in consequence of the seller’s breach.

The trial court should ensure that the issue of lost profits is not submitted to the jury.

Reversed and remanded.


text:
    Guillermina J. LAUREDO, Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 79-2434.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Rehearing Denied Oct. 27, 1980.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellant.
    Victor J. Dirse, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The appellant, plaintiff in the trial court (Guillermina J. Lauredo), brings this appeal from a final summary judgment in favor of the defendant (appellee herein), Fidelity & Casualty Company of New York.

The appellant was injured while driving her 1970 Ford van (a commercial vehicle) when she was struck by a motor vehicle. The Ford van and a 1971 Chevrolet (also owned by the appellant) were both insured under separate policies by the appellee. Because the Ford van was a commercial vehicle its policy did not contain PIP coverage, but the policy for the Chevrolet did contain PIP coverage with a $5,000.00 limit. Accordingly, the appellant sought recovery under the PIP coverage under her Chevrolet policy. Following the appellant’s notice and proof of claim, the insurance company denied coverage and refused to pay her medical expenses. Because of this denial, Ms. Lauredo instituted a declaratory action to determine her rights under the policy covering her Chevrolet. From cross-motions for summary judgment, the trial court granted the motion of the insurer and entered a final summary judgment for Fidelity, ruling that there was no coverage under the subject policy. This appeal ensued. We affirm.

The appellant seeks PIP coverage because she was injured while occupying a “commercial vehicle” and not a “motor vehicle”. However, the appellant overlooks the wording of the “no-stack” statute [Section 627.4132, Florida Statutes (1976)] to the effect that “. . . the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident.” Accordingly, even though the appellant was not the occupant of a “motor vehicle”, she was the occupant of a “vehicle”. See: State Farm Mutual Auto Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), for the proposition that the “no-stacking” statute has the twofold purpose of prohibiting stacking of coverages and restricting coverage to that contained in the policy covering the vehicle the claimant was occupying at the time of the accident.

Therefore, the final summary judgment here under review be and the same is hereby affirmed.

Affirmed.


author: SHARP, Judge.

text:
    George A. FERBER and Lillian Ferber, his wife, Appellants, v. ORANGE BLOSSOM CENTER, INC., et al., Appellees.
    No. 79-210.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.

      ■ Ronald H. Walker, Orlando, for appellants.
    Reinald Werrenrath, III, Orlando, for ap-pellees.
   SHARP, Judge.

George and Lillian Ferber sued Orange Blossom Center, Inc., the owner of a shopping center, another owner, and Orange Blossom’s liability insurer for injuries suffered by George when he tripped and fell on a ramp leading from the parking area to the sidewalk in front of the Pantry Pride store in the center. Ferber worked at Pantry Pride as a meat cutter. At the close of the plaintiffs’ case the trial court granted the defendants’ motion for a directed verdict, and entered a judgment for the defendants. We reverse and remand this matter for trial because there was evidence which would have supported a verdict for the plaintiffs. Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980).

The evidence in this case established that Orange Blossom owned and leased the shopping center and, under the lease, was obligated to keep the sidewalk, ramp, and curb in “good repair.” The ramp where Ferber fell was in extremely'poor condition. There were chips and cracks in the cement surface, and holes where the surface had chipped away, particularly in the seam between the ramp and the sidewalk. The condition of the ramp had deteriorated over a four year period, and the landowner failed to repair or maintain the ramp during that period of time. Other persons slipped and fell on the ramp, and Pantry Pride received accident reports of such incidents. Ferber himself had slipped on the ramp and he had seen others fall on it. He testified his foot slipped on some loose flaky material near the top of the ramp, although he was not able to pinpoint the exact item that caused his to lose his footing.

A person like Ferber, clearly a “business invitee,” who is injured by a hazardous condition existing on land owned by another is no longer barred from recovery because of his equal or even superior knowledge of the hazard, where the landowner knew or should have known of the condition and failed to keep the premises in good repair. Pittman v. Volusia County; Zambito v. Southland Recreation Enterprises, Inc., 383 So.2d 989 (Fla. 2d DCA 1980); Bennett v. Mattison, 382 So.2d 873 (Fla. 1st DCA 1980); Metropolitan Dade County v. Yelvington No. 79—1588 (Fla. 3d DCA May 13, 1980). The degree to which Ferber caused his own injuries because of his awareness of the hazardous ramp is an issue of comparative negligence, to be determined by the jury.

We reject the defendants’ argument that Ferber failed to present sufficient evidence that the hazardous condition of the ramp caused his fall. Only when the record conclusively shows an absence of facts or inferences from facts to support a jury verdict is a directed verdict proper. Hernandez v. Motrico, Inc., 370 So.2d 836 (Fla. 3d DCA 1979); Balart v. Michel’s Kartway, Inc., 364 So.2d 90 (Fla. 3d DCA 1978).

Ferber testified his foot slipped on something hard and loose underneath, at the top of the ramp but he was unable to identify the exact object. The pictures in evidence show the ramp was replete with cracks and crumbling matter particularly at the top where Ferber fell. They also show chips of yellow painted concrete lying on the dark asphalt at the base of the ramp. A jury could have concluded Ferber slipped on crumbling concrete at the top of the ramp, and his inability to locate the particular offending crack or crumble is not fatal to his case.

REVERSED and REMANDED for new trial.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: GREEN, OLIVER L., Associate Judge.

text:
    FLORIDA JAI ALAI, INC., a Florida Corporation, Appellant, v. SOUTHERN CATERING SERVICES, INC., a Florida Corporation, Appellee.
    No. 79-1825/T4-729.
    District Court of Appeal of Florida, Fifth District.
    Sept. 24, 1980.
    Richard G. Garrett and Sue M. Cobb of Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff, P. A., Miami, for appellant.
    Sam Daniels of Daniels and Hicks, Miami, and Pitts, Eubanks & Ross, Orlando, for appellee.
   GREEN, OLIVER L., Associate Judge.

This appeal is from a final judgment resolving disputes between the parties relating to past business dealings and also providing for a permanent injunction against the appellant, Florida Jai Alai, Inc., from terminating a concession agreement with the appellee, Southern Catering' Services, Inc. We affirm the portion of the final judgment which resolves past disputes between the parties. We reverse the portion of the final judgment which imposes a permanent injunction against the appellant, Florida Jai Alai, Inc.

The appellant, Florida Jai Alai, Inc., (defendant below) and the appellee, Southern Catering Services, Inc., (plaintiff below), entered into a concession agreement in 1972, whereby Southern Catering Services, Inc. agreed to supply automobile parking, dining room, lounge, and vending concession services in the fronton business place owned by Florida Jai Alai, Inc., at the Orlando-Seminole Jai Alai Fronton. The concession agreement gave Southern Catering Services, Inc., the exclusive right to supply these concessions and also provided that Southern Catering Services, Inc. was to have the right of first refusal in the event that the fronton business was sold. In 1977, the Board of Directors of Florida Jai Alai, Inc., voted to terminate the concession agreement with Southern Catering Services, Inc. The grounds for such termination included several allegations that Southern Catering Services, Inc. had breached the concession agreement by failing to perform in accordance with its terms. The appellee, Southern Catering Services, Inc. filed a complaint against Florida Jai Alai, Inc., for declaratory and supplemental relief, and also for a permanent injunction to enjoin the termination of the concession agreement.

An extended trial was held resulting in several findings by the trial judge. It was determined that no breach had occurred by the appellee, Southern Catering Services, Inc., and that based on an accounting ordered by the court, Southern Catering Services, Inc. was entitled to receive a stated sum of - money from the appellant, Florida Jai Alai, Inc.

We find no error in the trial judge’s disposition of these matters. We affirm the trial court’s holding that the concession agreement filed in evidence constituted the agreement of the parties. We affirm the portion of the final judgment finding that no breach had been committed by Southern Catering Services, Inc., and otherwise adjusting the property rights of the parties, including the net payment of $17,519.30 by the appellant, Florida Jai Alai, Inc., to the appellee, Southern Catering Services, Inc.

Paragraph one of the final judgment herein appealed provides as follows:

The ‘Temporary Injunction Order’ rendered herein on August 10, 1978, is made permanent. Defendant, FLORIDA JAI ALAI, INC., its agents and representatives, and all persons acting in concert or participating with it, are permanently enjoined from terminating SOUTHERN CATERING’S rights under the ‘Concession Agreement,’ on the grounds of breaches of defaults occurring prior to May 22,1979, and are further enjoined on the grounds of said past defaults or breaches from in anywise interfering with the operation of the concessions of SOUTHERN CATERING SERVICES, INC., at the Jai-Alai Fronton in Fern Park, Seminole County, Florida, and from interfering with any other of Plaintiff’s rights under the ‘Concession Agreement’ dated June 26, 1972.

Paragraph five of the final judgment contains several instructions to the parties regarding the management of their future business dealings, pursuant to paragraph one of the final judgment. Inasmuch as we determine that the trial court erroneously concluded that a permanent injunction was appropriate, it will not be necessary to discuss the provisions of paragraph five dealing with the execution of the portion of the final judgment in directing that a permanent injunction be observed.

There is some question as to whether the appellant, Florida Jai Alai, Inc. adequately preserved the issue of mutuality of remedy with regard to the injunctive relief granted below. The appellant, Florida Jai Alai, Inc. objected to appellee’s, Southern Catering Services, Inc. request for an injunction on the ground that an adequate remedy at law existed. We determine that, although no outright termination of the agreement has been committed by Florida Jai Alai, Inc., these two issues are closely related so that a determination by this court of the permanent injunction is appropriate. It is noted that the appellant, Florida Jai Alai, Inc. terminated the agreement based on an alleged breach by the appellee, Southern Catering Services, Inc.

An injunction against the breach of a contract is a negative specific performance of a contract, and the power and duty of a court of equity to grant the former is governed by the same rules as its power to grant the latter. Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 128 So. 821 (1930); Thompson v. Shell Petroleum Corp., 130 Fla. 652, 178 So. 413 (1938). Hence, since the instant injunction requires continued performance of the agreement, it is essentially a grant of specific performance and the rules governing specific performance are applicable. See Burger Chef Systems Inc. v. Burger Chef of Fla., Inc., 317 So.2d 795 (Fla. 4th DCA 1975).

One of these rules is that mutuality of remedy must exist for specific performance to be proper. Calumet Co. v. Oil City Corp., 114 Fla. 531, 154 So. 141 (1934). We are inclined to believe that it would be difficult to find a mutuality of remedy based on the agreement in this case, however, we determine that the permanent injunction must be reversed for an additional reason, and that is, the impropriety of projecting the judiciary into overseeing the specific performance of the subject agreement ad infinitum. It is noted that the agreement in this ease is perpetual. The permanent injunction is likewise perpetual. The subject agreement is not appropriate for equitable enforcement since under this decree, the court would assume an endless duty inappropriate to its function. Collins v. Pic-Town Water Works, Inc., 166 So.2d 760 (Fla. 2d DCA 1964); Bach v. Friden Calculating Mach. Co., 155 F.2d 361 (6th Cir. 1946); Bethlehem Engineering Export Co. v. Christie, 105 F.2d 933 (2d Cir. 1939); Chase Marketing Group LTD. v. Chris-Craft Industries, Inc., U.S.Dist.Ct. 79-6449-Civ-ALH, (S.D.Fla.1980).

It is evident that the court below foresaw many problems regarding the execution of its permanent injunctive order. Extensive directives are included in the final judgment dealing with an endless regulation of the parties in their business dealings under the concession agreement. We are not aware of any authority which would support endless injunctive relief of this sort.

We note in passing that even the concession agreement provision regarding the right of the appellee, Southern Catering Services, Inc., to have first refusal in the event of a sale of the fronton by Florida Jai Alai, Inc., does not alter our conclusion. It is entirely possible that Florida Jai Alai, Inc. will choose to continue with the concession agreement rather than suffer whatever damages may result because of an unjustified termination of the concession agreement by them. Suffice it to say no such issue is now before the court.

In conclusion, we affirm enumerated paragraphs 2, 3 (insofar as paragraph 3 is consistent with this opinion), 4, 6, 7, 8, 9 and 10 (insofar as paragraph 10 is consistent with this opinion) of the final judgment herein on appeal, with directions consistent with this opinion.

AFFIRMED in part and REVERSED in part and REMANDED.

ORFINGER and COBB, JJ., concur.


text:
    The BROWARD COUNTY CLASSROOM TEACHERS ASSOCIATION, INC., FTP-NEA, and the Florida Teaching Profession, NEA, Appellants, v. The SCHOOL BOARD OF BROWARD COUNTY, Florida, and the Florida Public Employees Relations Commission, Appellees.
    No. 79-2277.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 1980.
    Rehearing Denied Oct. 30, 1980.

      Mark F. Kelly of Law Offices of Frank, Chamblee & Kelly, P. A., Tampa, for appellants.
    Gordon D. Rogers of Muller, Mintz, Kornreich, Caldwell & Casey, P. A., Miami, for appellee School Bd. of Broward County.
   PER CURIAM.

AFFIRMED. We find no error in the trial court’s decision that the issues raised by appellant’s action had become moot. See Butler v. Lomelo, 355 So.2d 1208 (Fla. 4th DCA 1977).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


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

text:
    DEPARTMENT OF REVENUE, Appellant, v. RENEL CONSTRUCTION, INC., and Miami-Dade Water and Sewer Authority, Appellees.
    No. SS-261.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.
    Jim Smith, Atty. Gen., and David K. Miller, Asst. Atty. Gen., Tallahassee, for appellant.
    Brian T. Hayes, Monticello, Robert G. Worley and C. Jan Strayhorn, Miami, for appellees.
   ROBERT P. SMITH, Jr., Judge.

The Department of Revenue appeals from a circuit court judgment holding that appellees’ several construction contract transactions — contractor Renel’s agreement to build a courthouse for Broward County and several contractors’ agreements to build sewer systems for Miami-Dade-are not “lump sum” construction contracts under Rule 12A-1.51(2)(a), Fla.Admin. Code, but are instead subsection (d) contracts to sell specifically described and itemized materials and supplies at an agreed price and to complete the construction work for an additional agreed price.

The trial court’s classification of these contracts causes the sales tax prescribed by Chapter 212, Florida Statutes (1979), to fall on the contractors’ “sale” of the public work to the owner, rather than on the prior sale of the construction components to the contractor. The last sale in these instances are tax exempt because the owner of the work, the subject of the construction agreement, was a public body exempt from the sales tax. Whatever may have been the case were these transactions judged exclusively by the language of Section 212.08(6), the Department has interpretive authority and has interpreted the statute, by the subject rule, in a restrictive but permissible way. Unless and until the Rule is changed we should defer to the interpretation it expresses. The exhibited contracts obviously were drawn with precise attention to and compliance with the interpretive language of the Rule which taxes the sale to the contractor when the contractor contracts with the owner as described in subpara-graph (a) and which taxes the sale by the contractor (unless the owner is exempt) when the construction contract is as described in subparagraph (d):

(a) Contracts in which the contractor or subcontractor agrees to furnish materials and supplies and necessary services for a lump sum;
(d) Contracts in which the contractor or subcontractor repairs, alters, improves or constructs real property and wherein he agrees to sell specifically described and itemized materials and supplies at an agreed price or at the regular retail price and to complete the work either for an additional agreed price or on the basis of time consumed.

The trial court’s judgment is

AFFIRMED.

BOOTH and SHAW, JJ., concur.


text:
    J. Grady HOLLAND et al., Appellants, v. STATE of Florida, Appellee.
    No. UU-166.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1980.

      T. A. Leonard, Jr., and Roy V. Andrews, of Lindsay & Andrews, Milton, for appellants.
    Jim Smith, Atty. Gen., and Susan F. Gamble, Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The grantors of a 1969 warranty deed in the form prescribed by Section 689.02, Florida Statutes (1969), (1979), conveying a strip

of Santa Rosa County land to the State, appeal from a circuit court order dismissing with prejudice their second amended complaint and their claim against the State that the deed conveyed no rights to subsurface oil and gas. On this record we sustain the deed against appellants’ varied attack, and we therefore affirm.

Appellants first urge that the exhibited deed is ambiguous on its face concerning the extent of the estate conveyed, so permitting clarification by parol evidence. The deed in statutory form operated to convey the fee simple title in the absence of words of limitation or other expressions of a contrary intention in the instrument. Section 689.10, Florida Statutes (1969), (1979); Bronstein v. Bronstein, 83 So.2d 699 (Fla.1955). The reference in a corner of the deed to State Road S-178 and other notations showing that the acquisition was for road right of way purposes do not render the deed ambiguous on the issue of whether the estate conveyed was an easement or the fee simple title. Robb v. Atlantic Coast Line R.R. Co., 117 So.2d 534 (Fla.2d DCA 1960).

Secondly, we cannot agree with appellants that this deed may be likened to one absolute on its face but given for security, therefore as a mortgage. In such a case parol evidence is received to show connected elements of a single transaction, or to show “the object of the parties in executing and receiving” the deed as security rather than as an absolute conveyance. E, g., First Nat’l Bank v. Ashmead, 23 Fla. 379, 385, 2 So. 657, 659 (1887). Here appellants propose improperly to impeach “the language of which the instrument is the repository.” Ibid. That language expresses the estate conveyed. Section 689.10.

Finally, because the State had power to buy and appellants had power to sell (for a negotiated price) and by warranty deed to convey fee simple title to land deemed necessary for road right of way purposes, Section 337.25, we decline to impeach the parties’ 1969 transaction, now that oil has been found, upon a theory that the State could not have shown a necessity for acquisition of subsurface rights if that had appropriately been challenged in eminent domain proceedings. Article X, Section 6, Florida Constitution; Canal Authority v. Miller, 243 So.2d 131 (Fla.1970). The time for appellants to have declined voluntary relinquishment of subsurface mineral rights was when the fee simple sale was bargained and consummated, averting condemnation proceedings in which appellants might have challenged the public necessity for the taking.

Appellants’ second amended complaint contains no allegations of fraud, overreaching, or mutual mistake which may conceivably have justified reforming or can-celling the deed, which was not prayed for, and there is no contention on this appeal that appellants were improperly denied further leave to amend. The order appealed is therefore

AFFIRMED.

BOOTH and SHAW, JJ., concur.


text:
    Maynard F. TAYLOR and Cooke & Taylor, Medical Doctors, P. A., Appellants, v. Francis N. COOKE et al., Appellees.
    No. 79-2400.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Rehearing Denied Oct. 22, 1980.
    Jepeway & Jepeway and Louis M. Jepe-way, Jr., Miami, for appellants.
    George & Thompson and Charles K. George, Miami, for appellees.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The judgment below is affirmed with the sole exception of the provisions which declared the three named plaintiffs-appellees a legally cognizable class and accordingly assessed attorney’s fees against the defendant-appellant Taylor. None of the prerequisites for such a determination were present in this case. See, Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1976); Harrell v. Hess Oil and Chemical Corp., 287 So.2d 291, 293-94 (Fla.1973); Fla.R.Civ.P. 1.220.

Affirmed in part, reversed in part.


text:
    STATE FARM AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. James M. WALTER, etc. et al., Appellees.
    No. 79-249.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 1980.
    Rehearing Denied Oct. 14, 1980.
    Thomas G.. Kane of Discoll, Langston, Layton & Kane, P.A., Orlando, for appellant.
    David M. Hammond of Meyers, Mooney & Adler, P.A., Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

State Farm Mut. Auto. Ins. Co. v. Bergman, 397 So.2d 494 (5th DCA 1980) [1980 FLW 1641],

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    Joe Henry FLACK and Julian Arnold, Appellants, v. Grace Klein FLACK, Appellee.
    No. 79-1571.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Edward C. Vining, Jr., Miami, for appellants.
    Alfred Gustinger, Jr., Coral Gables, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

This is an appeal from a final judgment assessing attorneys fees and costs against appellant Julian Arnold for his failure to comply with discovery requests. Appellant assigns several errors, but we note only one, as it requires reversal of the award; there is no merit to the other assignments of error.

The present proceeding arose out of a dissolution of marriage action. Appellant Arnold, president and stockholder of Arnold & Watts, Inc., was subpoenaed, duces te-cum, to appear for deposition and produce all books, records, data and memoranda concerning the respondent/husband Joe Flack, an employee and stockholder of the corporation. After numerous unsuccessful attempts to depose appellant and inspect the records in his possession, the trial court granted petitioner Grace Flack’s Motion to Compel Discovery on April 19, 1976. The court was then required to intervene once more before appellant’s deposition was finally taken on September 21, 1976. Three days later appellee filed a Motion to Assess Costs and Attorneys Fees.

The Flacks’ marriage was dissolved on September 13, 1977. Paragraph seven of the final order provided that

this court specifically retain jurisdiction with respect to consideration of the Petitioner’s motion to require Arnold & Watts, Inc. to pay the costs incident to its refusal to make discovery in this cause.

On February 2, 1979, the court awarded to Alfred Gustinger, Jr., as attorney for Grace Flack, the sum of $1,000.00, to be paid by appellant. The instant appeal followed.

Appellant correctly points out that in the dissolution order the lower court retained jurisdiction to assess costs over the corporation Arnold & Watts, Inc.-not over the individual Julian Arnold. The court was thus without jurisdiction to render its final judgment assessing costs against appellant Arnold in his individual capacity.

The order granting attorneys fees is reversed.

Reversed.


author: SCHWARTZ, Judge. DANIEL S. PEARSON, Judge,

text:
    PUBLIC HEALTH TRUST, Richard Auclair, M.D., and Glenn Salkind, M.D., Appellants, v. Susan BROWN, Appellee.
    No. 79-2069.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Rehearing Denied Oct. 24, 1980.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Miami, for appellants.
    Mandina & Lipsky and Michael A. Lipsky, Miami, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

This case of first impression in the Florida appellate courts presents the fascinating question of whether the cost of raising a previously unwanted but healthy and normal child is a recoverable element of damages in a so-called “wrongful birth” case. We conclude that it is not.

The issue comes to us in a pristine legal form, uncluttered by any procedural or factual complexity. A jury found that physician-employees of Jackson Memorial Hospital had negligently performed a tubal ligation on Susan Brown, with the result that she became pregnant and delivered her sixth child, Lamont. She was awarded $10,837 for the medical expenses, lost wages and pain and suffering caused by the undesired pregnancy and the process of childbirth. The appellants challenge neither the liability finding nor the award of these items of damages. Their sole appellate point concerns the inclusion in the final judgment of $19,500 which, in a special verdict, was assessed for the past and discounted future

“reasonable costs of raising Lamont Brov/n to age 18, offset by the value of his love and affection, companionship and the other mother-child relationships.”

In holding that such a claim should not be recognized, we align ourselves with a clear majority of courts in other jurisdictions which have decided the identical question. Coleman v. Garrison, 349 A.2d 8 (Del.1975); Wilczynski v. Goodman, 73 Ill.App.3rd 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Berma n v. Allan, 80 N.J. 421, 404 A.2d 8 (1979); Sala v. Tomlinson, 73 A.D.2d 724, 422 N.Y.S.2d 506 (1979); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App.1973), cert, denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co. of Fort Wayne, Ind., 64 Wis.2d 514, 219 N.W.2d 242 (1974); see, Shaheen v. Knight, 6 Lycoming Rptr. 19, 11 Pa.D. & C.2d 41 (1957); Ball v. Mudge, 64 Wash.2d 247, 391 P.2d 201 (1964); contra, Stills v. Gratton, 55 Cal.App.3d 698, 127 Cal.Rptr. 652 (1976); Custodio v. Bauer, 251 Cal.App.2d 303, 59 Cal.Rptr. 463 (1967); Anonymous v. Hospital, 33 Conn.Sup. 126, 366 A.2d 204 (1976) (relying on Delaware lower court decision reversed in Coleman v. Garrison, supra); Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn.1977); but see, Bishop v. Byrne, 265 F.Supp. 460 (S.D.W.Va.1967); Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976). See generally, Annot., Tort Liability for Wrongfully Causing One to Be Born, 83 A.L.R.3d 15 (1978); ' Comment, Wrongful Conception: Who Pays for Bringing up Baby?, 47 Fordham L.Rev. 418 (1978); Kashi, The Case of the Unwanted Blessing: Wrongful Life, 31 U.Miami L.Rev. 1409 (1977).

There is no purpose to restating here the panoply of reasons which have been assigned by the courts which follow the majority rule. See especially the comprehensive discussions in Wilczynski v. Goodman, supra and Berman v. Allan, supra. In our view, however, its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child. Even the courts in the minority recognize, as the jury was instructed in this case, that the costs of providing for a child must be offset by the benefits supplied by his very existence. Stills v. Gratton, supra; Anonymous v. Hospital, supra; Troppi v. Scarf, supra; Sherlock v. Stillwater Clinic, supra. See, Restatement (Second) of Torts § 920 (1979). But it is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable “benefits” of parenthood far outweigh any of the mere monetary burdens involved. See, Shaheen v. Knight, supra; Terrell v. Garcia, supra. Speaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the “unwanted” child for adoption. See, e. g., Sha-heen v. Knight, supra; Rieck v. Medical Protective Co., supra. On a more practical level, the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster. Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law. It is a rare but happy instance in which a specific judicial decision can be based solely upon a reflection of one of the humane ideals which form the foundation of our entire legal system. This, we believe, is just such a case.

The judgment under review is reduced by $19,500 and, as so modified, is affirmed.

Affirmed in part, reversed in part.

DANIEL S. PEARSON, Judge,

dissenting.

I respectfully dissent. I am confident that the majority recognizes that any decision based upon a notion of public policy is one about which reasonable persons may disagree. Any doubt I might have is dispelled by the fact, as evidenced in the majority opinion, that there exists substantial disagreement among the courts of other states which have heretofore been called upon to decide whether public policy prevents a parent from recovering damages attendant upon the rearing of a child.

Because I am of the view that judges are more to be trusted as interpreters of the law than as expounders of what is called public policy, Re Mirams, 1 Q.B. 594, 595 (1891), I cannot join in the majority’s declaration that, as a matter of public policy, and therefore as a matter of law, the benefits derived from parenthood exceed any damages which will be incurred in raising an unplanned child whose birth comes about through the negligence of another. I am persuaded that a jury properly instructed, as was the jury in the present case, that it could award damages for the

“cost of raising the child ... in the future, offset by the value of his love and affection, companionship and the other mother-child relationships . ...”

will better express the view and conscience of the community, can measure on a case-by-case basis the enormously varied claims which may arise, and can assess the extent to which the benefits of parenthood should reduce the costs of raising a child.

A judicial declaration of pre-emptive public policy should express the manifest will of the people. Troppi v. Scarf, 31 Mich.App. 240, 187 N.W.2d 211 (1971). The majority’s conclusion that the benefits of parenthood in every case outweigh the costs of raising a child is totally inconsistent with the manifest will of, at least, the six jurors who decided the present case. I regard the jury’s decision as a far more accurate declaration of the will of the people than the majority’s decision.

The majority arrives at its assessment of the will of the people by positing that “it is a matter of universally shared emotion and sentiment that the intangible but all-important, incalculable but invaluable ‘benefits’ of parenthood far outweigh any of the mere monetary burdens involved.” It is this very same emotion and sentiment that leads a parent to say that he or she would not part with the child for any price and would not consider placing the unplanned child for adoption. But this response, psychologically and socially compelled, and con-cededly based on emotion and sentiment, cannot be given an arbitrary value which will always exceed the cost of raising a child, and thereby be used to fashion a rule which precludes recovery of proximately caused and foreseeable damages.

There is a bitter irony in the rule of law announced by the majority. A person who has decided that the economic or other realities of life far outweigh the benefits of-parenthood is told by the majority that the opposite is true. Yet if we cannot interfere with an individual’s choice to forego the benefits of parenthood, see, e. g., Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), by what reasoning can the majority arrive at a rule, based on public policy, which effectively nullifies the individual’s choice?

I have previously admitted that I have no special capacity to intuit, and am possessed of no extensive empirical evidence from which I can infer, the manifest will of the people. The majority, I submit, has failed to observe the caveat that public policy “.. . is a very unruly horse, and when once you get astride it, you never know where it will carry you. It may lead you from the sound law.” Richardson v. Mellish, 2 Bing. 229, 252 (1824), quoted with approval in Story v. First National Bank and Trust Company in Orlando, 115 Fla. 436, 156 So. 101 (1934). Having, in my view, been led from the sound law, the majority couches its result as humane. I dissent from that as well. I firmly believe that the result reached by the majority in the name of humaneness is, unwittingly, inhumane. I see nothing humane in denying a parent the wherewithal which might save a child from deprivation or, in many cases, abject poverty. I see nothing humane in a rule of law that could enhance the already dire need of parents and existing siblings. I see nothing humane in a decision which effectively immunizes physicians from their negligence and victimizes a mother who sought to relieve herself and her family from the additional burden of another child. I would affirm the decision below.

      . The damage issue was specifically reserved in Jackson v. Anderson, 230 So.2d 503 (Fla.2d DCA 1970), which was the first Florida decision to recognize the right to recover for a negligent sterilization which does not achieve the desired result. Cf., Aronoff v. Snider, 292 So.2d 418 (Fla.2d DCA 1974) (no cause of action in siblings of “wrongfully bom” child). In Bradian v. Baliton, 48 Fla.Supp. 201 (Fla. 19th Cir. Ct. 1979), a Florida trial court struck the damage element involved in this case.

      . Mrs. Brown stated that Lamont, who was almost two at the time of trial, was a fine and healthy little boy whom she loved very much-just as she did her other children. While she had considered an abortion, she was glad that she had decided against it.

      . Because the issue is not before us, we do not decide nor intimate a view as to the recovera-bility of the costs involved in treating and raising an abnormal or unhealthy child. Compare, Sala v. Tomlinson, supra (no recovery for healthy child); Shaheen v. Knight, supra (same); Terrell v. Garcia, supra (same); and Rieck v. Medical Protective Co., supra (same); with Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978) (recovery permitted for costs required for abnormal child); Speck v. Finegold, - Pa.Super. -, 408 A.2d 496 (1979) (same); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975) (same); Dumer v. St. Michael’s Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975) (same); and Berman v. Allan, supra (no recovery for raising either healthy or abnormal child); with Bowman v. Davis, supra (recovery permitted for raising both healthy and abnormal child).

      . We note that, under the contrary view, an unhandsome, colicky or otherwise “undesirable” child would provide fewer offsetting benefits, and would therefore presumably be worth more monetarily in a “wrongful birth” case. The adoption of that rule would thus engender the unseemly spectacle of parents disparaging the “value” of their children or the degree of their affection for them in open court. It is obvious, whether the conclusion is phrased in terms of “public policy,” see, Raisen v. Raisen, 379 So.2d 352 (Fla.1979), or otherwise, that such a result cannot be countenanced.

      . This instruction follows the view expressed in Section 920, Restatement (Second) of Torts (1979), which provides:
      “Where the defendant’s tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable.” (emphasis supplied).

      . The same might be said to deny government sponsored financial aid to parents who are unable to provide for their children. It would seem that the public policy expressed in the welfare programs is to place no financial value on these “benefits.”

      . “Many parents feel a moral sense of obligation to bring up as best they can a child unwanted at the time of conception.” Stills v. Gratton, 55 Cal.App.3d 698, 707, 127 Cal.Rptr. 652, 658 (1976) (emphasis supplied).

      . The argument has been made that since, under Restatement (Second) of Torts, see n. 1, supra, the benefit to be considered in mitigation must be “to the interest which is harmed,” emotional rewards cannot mitigate injured financial interests. The services which a parent can expect a child to render, upon which a financial value can be placed, are largely illuso,ry.

      . “It is no answer to say that a result which [the plaintiff] specifically sought to avoid might be regarded as a blessing by someone else.” Rivera v. State, 94 Misc.2d 157, 162, 404 N.Y. S.2d 950, 954 (Ct.Cl.1978).

      . I am content to keep my response within the parameters of the majority opinion. The various arguments in favor of and against the rule adopted by the majority are found in the cases cited in the majority opinion.