author: McCORD, Judge.

text:
    Fred CLARK, Appellant, v. STATE of Florida, Appellee.
    No. NN-312.
    District Court of Appeal of Florida, First District.
    Dec. 27, 1979.
    Rehearing Denied Feb. 21, 1980.

      James L. Harrison, Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was convicted of grand theft of a motor vehicle, the property of Charles Wayne Smith; armed robbery of Smith; and attempted first-degree murder with a firearm. He was acquitted of armed robbery of Robert Starling at Buy-Low Carpets, Inc., and armed robbery of Judith Littlefield at Buy-Low Carpets, Inc. He appeals the convictions. We affirm.

Evidence was presented that two men robbed Robert Starling and Judith Little-field at Buy-Low Carpets, Inc.; that upon leaving the Buy-Low Carpets store, they commandeered a truck owned by Charles Wayne Smith for their getaway and shortly thereafter robbed Smith and attempted his murder. Smith testified that following a visit to his doctor at Gateway Shopping Center, he was entering his truck when two black males suddenly appeared at the truck armed with pistols; that they forced him to enter the truck where he sat between them while one drove and the other held a gun pointed at him; that he believed he would be killed, and when the truck stopped at a traffic light, he reached across one of the men and threw the door open, shoving the man with the pistol to the ground; that he fell with the person, and when he arose, he was shot.

The evidence shows that Smith on several occasions prior to September 13, 1978, was shown groups of photographs of individuals suspected by the police to have been involved in the offenses. None of these sets of photographs contained the picture of appellant, though one or more of the sets contained a photograph of appellant’s co-defendant Prince, who was tried separately. Smith was unable to select Prince’s photograph as one of the perpetrators of the crime.

The state presented the testimony of Lt. Brian R. Mickler of the Jacksonville Sheriff’s Office, who testified that he placed Smith in a hypnotic state on September 13, 1978, during which Smith was instructed to recall the episode. After coming out of the hypnotic state, Smith selected both Clark’s and Prince’s photographs from a group of photographs shown to him and identified them as the two men who had perpetrated the crimes upon him. Smith also testified to the hypnosis and his identification thereafter of the photographs of appellant and Prince as the two perpetrators of the crime. He further identified appellant in the courtroom as the man who shot him.

Appellant contends that the court erred in admitting the testimony of the hypnotist, Lt. Mickler on the following grounds:

“1. Testimony regarding experiments conducted using hypnosis are not acceptable as evidence because the reliability of such' evidence has not been sufficiently established.
2. Mickler was not sufficiently qualified to testify regarding the hypnotic trance nor the procedures he had followed in hypnotizing Smith.
3. Mickler’s testimony had no probative value and only served to improperly bolster the testimony of Charles Smith creating a substantial prejudice to Clark.”

As to appellant’s first ground, he likens hypnosis to the admissibility of the results of polygraph tests, which Florida courts have repeatedly held have not been shown to be reliable for admission in evidence. Kaminski v. State, 63 So.2d 339 (Fla.1952); Codie v. State, 313 So.2d 754 (Fla.1975); Sullivan v. State, 303 So.2d 632 (Fla.1974); Dean v. State, 325 So.2d 14 (Fla. 1 DCA 1975). As to evidence obtained from hypnosis, appellant cites two opinions of our sister court of the Third District: Rodriquez v. State, 327 So.2d 903 (Fla. 3 DCA 1976), and Shoekey v. State, 338 So.2d 33 (Fla. 3 DCA 1976). These two cases did not deal with the situation presented here, however, but involved the admissibility of statements made by a person while under hypnosis —the Third District Court of Appeal ruling such statements to be inadmissible. Here, the trial court, before allowing the hypnotist’s testimony,' heard it on proffer and determined that it did not include any statements relating to the crime made by the victim while under hypnosis and that no post-hypnotic suggestions were made to him while he was under hypnosis. The hypnotist testified that he (the hypnotist) had no knowledge of the facts of this case prior to placing Smith under hypnosis; that he did not know who the suspects were and had no idea whether they were white males, black males, or were males or females. He testified that all he did was “relax Mr. Smith to the extent that outside stimuli coming in was reduced and he could solely concentrate and spend all his energy thinking of a particular incident that happened.” Along this same line, he testified further as follows:

“The purpose of placing Mr. Smith was to try to clear his mind and eliminate any distractions and see if we could get any cloud of stress away from him so that he could totally and fully concentrate on what happened and recall through the process of hypernesia.”

Defining hypernesia, he testified:

“That is total relaxation and removing all outside stimuli, even any distractions that your body might cause, kind of trance like state so that your sole concentration is on one particular thing.”

He stated that no one spoke to Smith while he was under hypnosis other than himself and that he did not at any time suggest to Smith who the perpetrators of the crime were. He testified that upon Smith coming out of the hypnotic state, he was present when the photographic display was presented to Smith and saw him pick out two individuals in that photographic display; that Smith was fully out of the hypnotic state when he made the selection. Smith testified to his identification of the two photographs after he came out of hypnosis, and he also identified appellant in the courtroom as the individual who shot him.

Testimony given by a witness after hypnosis, which he could not remember prior to hypnosis, was held admissible by the United States Court of Appeals, Ninth .Circuit, in Kline v. Ford Motor Co., Inc., 523 F.2d 1067 (9th Cir. 1975). There the court said:

“Competence refers to the condition of the witness at the time he or she is called to testify. Jacqueline was fully capable of expressing herself and understanding her duty as a witness to tell the truth. (E. g., Cal.Evid.Code §§ 405, 701 and annexed Comment (West 1966); B. Witkin California Evidence (2d ed. 1966) § 768, at 716.) She was present and personally saw and heard the occurrences at the time of the accident. She was testifying about her present recollection of events that she had witnessed. That her present memory depends upon refreshment claimed to have been induced under hypnosis goes to the credibility of her testimony not to her competence as a witness. Although the device by which recollection was refreshed is unusual, in legal effect her situation is not different from that of a witness who claims that his recollection of an event that he could not earlier remember was revived when he thereafter read a particular document. (Wyller v. Fairchild Hiller Corp. (9th Cir. 1974) 503 F.2d 506; Cal.Evid.Code § 771 (West 1966); B. Witkin, supra, § 1167, at 1080-81). Here, as in Wyller, ‘[w]e cannot accept [defendant’s] argument that [plaintiff’s] testimony was rendered inherently untrustworthy by [her] having undergone hypnosis. [Plaintiff] testified from [her] present recollection, refreshed by the treatments. [Her] credibility and the weight to be given such testimony were for the jury to determine.’ (503 F.2d at 509.)”

The. Court of Appeals of Oregon ruled to the same effect in State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312 (Ore.Ct.App. 1971). Also, the Court of Special Appeals of Maryland, in Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968), so ruled stating:

“The admissibility of Mildred Coley’s testimony concerning the assault with intent to rape case causes no difficulty. On the witness stand she recited the facts and stated that she was doing so from her own recollection. The fact that she had told different stories or had achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide. Borman v. State, 1 Md.App. 276, 229 A.2d 440, Carroll v. State, 3 Md.App. 50, 237 A.2d 535, Thompson v. State, 4 Md.App. 31, 240 A.2d 780.”

Likewise, the Supreme Court of North Carolina, in State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978), ruled as follows:

“We turn next to the defendant’s contention that it was error to admit the testimony of Barbara Kiser for the reason that it was the result of her hypnosis prior to trial. In this contention, we find no merit. The circumstance that this witness was hypnotized prior to trial would bear upon the credibility of her testimony concerning the occurrences at the Norris house at the time the two women were killed, but would not render her testimony incompetent. As above shown, the jury was fully advised that the witness had been so hypnotized. Her credibility, as a result of this circumstance, and of other matters bearing thereon, was for the jury. . . ”

We agree with the foregoing authorities. Smith’s identification was made not while in a hypnotic state, but from his present recollection refreshed by his having been put under hypnosis. The credibility thereof was for the jury to determine.

As to appellant’s second ground that Lt. Miekler was not sufficiently qualified to testify regarding the hypnotic trance nor the procedures he had followed in hypnotizing Smith, the record shows that he had undergone special training and had considerable experience in hypnotism and the use of hypnotism in criminal investigations. The trial judge heard a proffer of his testimony before it was presented to the jury and determined that his qualifications were sufficient for the testimony he gave. Whether or not he was shown to be sufficiently qualified was a matter for the trial judge’s determination in the exercise of his discretion. Gates and Sons, Inc. v. Brock, 199 So.2d 291 (Fla. 1 DCA 1967). We find no abuse of discretion.

As to appellant’s third ground that Mickler’s testimony had no probative value and only served to improperly bolster the testimony of Smith creating a substantial prejudice to appellant, we find no error. Smith’s identification of appellant and his co-defendant Prince coming only after he had been placed under hypnosis, it was entirely proper that the jury be given the details of the hypnosis in order that they might evaluate the credibility of Smith’s identification of appellant. The state was entitled to have the jury weigh all of the circumstances relating to the hypnosis in determining the credibility they would attach to the post-hypnotic identification.

We have considered the additional point raised by appellant and find it to be without merit.

AFFIRMED.

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


source: Caselaw Access Project

author: LARRY G. SMITH, Judge.

license: Public Domain

text:
    COMPASS LAKE HILLS DEVELOPMENT CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT of COMMUNITY AFFAIRS, DIVISION OF STATE PLANNING, Appellee.
    No. NN-458.
    District Court of Appeal of Florida, First District.
    Dec. 27, 1979.
    Rehearing Denied Feb. 21, 1980.

      Richard E. Gentry, Jacksonville, Paul F. Hartsfield, Jr., of Watkins, Hill & Marts, Carl A. Bertoch, Tallahassee, for appellant.
    C. Laurence Keesey, Tallahassee, for ap-pellee.
   LARRY G. SMITH, Judge.

Compass Lake Hills Development Corporation appeals the Department of Community Affairs’ binding letter under Section 380.06, Florida Statutes, determining that Units Five and Six of Compass Lake Hills Subdivision, located in Jackson County, Florida, are developments of regional impact subject to the requirements of Section 380.06. We affirm in part and reverse in part.

This is a case of first impression, in which we are called upon to initially construe Section 380.06(12), Florida Statutes, which provides “vested rights”, or exemption from the requirements of Section 380.06, Florida Statutes, providing the developer can show authorization to commence the development upon which there has been a reliance, and a change of position, prior to July 1, 1973. The applicable subparagraph of the statute provides:

“Nothing in this section shall limit or modify the rights of any person to complete any development that has been authorized by registration of a subdivision pursuant to Chapter 478, by recordation pursuant to local subdivision plat law, or by a building permit or other authorization to commence development on which there has been reliance and a change of position, and which registration or recor-dation was accomplished, or which permit or authorization was issued, prior to the effective date of the rules issued by the administration commission pursuant to subsection (2). If a developer has, by his actions in reliance on prior regulations, obtained vested or other legal rights that in law would have prevented a local government from changing those regulations in a way adverse to his interests, nothing in this chapter authorizes any governmental agency to abridge those rights.”

The critical date for purposes of determining whether rights have been vested under the statute was established by promulgation of Chapter 22F-2, Florida Administrative Code, effective July 1, 1973.

The State Land Planning Agency, Department of Community Affairs is given statutory authority, upon application by a developer, to issue a binding letter of interpretation determining whether a proposed development would be a development of regional impact, and whether the developer’s rights have vested pursuant to subsection (12). Chapter 380.06(4)(a), Florida Statutes. In binding letter proceedings and vested rights determinations under the statute, only the Department and the developer are involved. South Florida Regional Planning Council v. Florida Division of State Planning, 370 So.2d 447 (Fla. 1st DCA 1979); South Florida Regional Planning Council v. State of Florida Land and Water Adjudicatory Commission, 372 So.2d 159 (Fla. 3rd DCA 1979).

The question for review before this court is whether the evidence presented to the Department by appellant was sufficient to show “authorization to commence development” (Section 380.06(12)), upon which a claim of vested rights may be based. Appellant did not contest nor does it here complain of the Department’s ruling that the development constituted a development of regional impact. (Section 380.06).

The Department’s order granted vested rights status as to Units One through Four, but denied vested status as to Units Five and Six, and provided that the developer would be required to comply with Section 380.06, Florida Statutes, as to those units. The order further directed appellant to comply with the review requirements of Section 380.06 prior to further development of those units, and to terminate sales in Units Five and Six until completion of the review and issuance of a development order in compliance with the statute.

Appellant claims vested rights status for Units Five and Six based upon a series of events occurring both before and after July 1, 1973. Appellant relies upon evidence tending to show that its predecessor in title apparently received “conceptual approval” for the development by the County Commissioners of Jackson County in 1971, and received further assurances in early 1972 when the subdivision plat for Unit One was presented and approved by the County Commission. The evidence also indicates that the developer acceded to the County’s demand for a minimum lot size of one acre; that the developer agreed to pave 3.5 miles of an existing county road running through or bordering the property; and that the county, on August 24, 1973, agreed to accept all roads in the subdivision constructed to Jackson County specifications, and agreed to accept road maintenance on January 1, 1983, or sooner, pending inspection and approval of all roads. Appellant acquired the entire property, consisting of over 10,000 acres, from the original developer, in May, 1972, with intentions of completing the development.

Subdivision plats for Units One, Two, Three and Four (embracing some 4,650 acres) were presented to and approved by the Jackson County Commission, prior to July 1, 1973.. Also, Units One through Four were registered with the Florida Division of Land Sales and Condominiums (under Chapter 478, Florida Statutes) prior to July 1, 1973. Appellant made expenditures for planning, platting and surveying of approximately $135,500.00 prior to July 1, 1973, and approximately $660,000.00 after that date. A subdivision plat of Unit Five was approved on July 24, 1973, and the plat for Unit Six was approved on February 26, 1974. Units Five and Six were registered with the Division of Land Sales on August 29, 1973, and October 7, 1974, respectively.

Appellant presented information showing expenditure of $1,125,000 for a down-payment to acquire the land, plus other expenditures before July 1, 1973, and claims expenditures in excess of $3,500,000 between July 1, 1973, and May, 1978, when appellant submitted its application for vested rights determination under Section 380.-06(12).

At the center of the controversy is the Department’s interpretation of Section 380.-06(12) and the sufficiency of the evidence relied upon by appellant to show “authorization” of the development by the County Commission of Jackson County. Appellant submitted several affidavits from former County Commissioners of Jackson County, a real estate broker, and the former President of appellant’s predecessor in title. The Department found that none of the affidavits state that a master plan received formal approval by resolution or vote of the County Commission in connection with the platting of Unit One in 1971, or thereafter. The Commissioners’ affidavits indicated only awareness that Unit One was part of a larger development totalling some 10,500 acres, to which they gave “conceptual approval”. The Department found there was no record showing that a master plan of development was formally presented or approved, or that any formal vote of approval was made by the County Commissioners.

We have examined the record and find no error in the Department’s conclusions. Further, it is clear from the record that appellant failed, after specific requests by the Department, to produce any evidence of official County Commission action by way of minutes or resolution, or any “master plan” disclosing the manner in which Units Five and Six were to be developed. No plan was produced by appellant, which was in existence prior to July 1, 1973, to which the purported “conceptual approval” of the County Commissioners could be related.

The proceedings before the Department fully complied with Section 120.-57(2), Administrative Procedure Act, and appellant was not entitled to a formal hearing under Section 120.57(1). General Development Corp. v. Division of State Planning, 353 So.2d 1199 (Fla. 1st DCA 1978). Appellant requested a formal hearing, but this request was withdrawn. We find no error in the Department’s denial of a second formal hearing request which was submitted after the issuance of the Department’s binding letter determining that Chapter 380 applied. Although this court has the prerogative to order a formal hearing, General Development Corp. v. Division of State Planning, supra, we find no justification for doing so, and no error on the part of the Department in refusing it, in view of the fact that appellant had ample opportunity to furnish the requested information, and has given no indication by means of its petition to the Department, or otherwise, that a master plan predating July 1, 1973, or any evidence of formal action by the County Commissioners prior to the same date, can be produced.

In determining whether rights have vested under Section 380.06(12), the existence of a development plan is of critical importance. The plan shows what the developer intends to do with the land, and once the development is approved, what he is permitted to do. Section 380.06(7Xe). It also serves as a basis for a ruling on any proposed modifications or changes. Section 380.06(4)(b) and (c). Without a plan, neither the Department nor the local government can determine what the developer has the right to do, nor can either determine later whether the vested plan is being carried out.

The Department points out that the County had no zoning ordinance at the time it gave its initial “conceptual” approval as contended by appellant. Section 286.011, Florida Statutes (1973) provided that all County Commission meetings shall be public meetings, and further, that “no resolution, rule, regulation or formal action shall .be considered binding except as taken or made at such meeting”. Section 286.011(1). The statute also required that the minutes of County Commission meetings “shall be promptly recorded” and open to public inspection. Section 286.011(2). The minutes of the board of County Commissioners has been held to be the best evidence of the official acts of the board. Kirkland v. State, 86 Fla. 64, 97 So. 502 (1923); Pooser v. Jackson County, 160 Fla. 71, 33 So.2d 602 (Fla.1948). Although administrative bodies are not generally bound by the strict or technical rules of evidence governing jury trials or other court proceedings (Administrative Procedure Act, Section 120.58(1)(a), Florida Statutes; 1 Florida Jur.2d, Administrative Law, § 80), the Department here correctly determined that appellant’s evidence was insufficient to show “authorization”, because it failed to show what was “conceptually approved” by the Board of County Commissioners.

Although we find no basis upon which to disturb the Department’s ruling denying vested rights status as to Units Five and Six, and we conclude that the Department correctly determined that these units are subject to the requirements of Section 380.-06, we are concerned about other aspects of the order. Appellant naturally desires to avoid the expense and inconvenience of complying with Section 380.06. However, the Department has proceeded under the only authorization available to it under the statute, and has determined that appellant must comply. The Department properly points out, as this court has held, that a developer who bypasses Section 380.06 “does so at its peril”, and that its construction may be enjoined under Section 380.11. General Development Corp. v. Division of State Planning, supra. Nevertheless, considering all the circumstances presented by the record before us, we must determine whether the action of the Department in calling a halt to any further development, and terminating sales in Units Five and Six until completion of the Section 380.06 review, is unreasonable or unwarranted.

A development of proportions such as this one could hardly go unnoticed in Jackson County. At least one State agency, the Florida Division of Land Sales and Condominiums, was specifically advised of the development, beginning in 1972, by virtue of appellant’s compliance with the registration requirements of Chapter 478, Florida Statutes. Notwithstanding this, it was not until July, 1977, that the development apparently came to the attention of the Department. After an exchange of letters, appellant proceeded to apply for a determination of its vested status under Section 380.06(12). Appellant filed an official application in May, 1978, and thereafter continued to supplement the application with other pertinent facts and documents. It its initial application appellant advised the Department that the improvements were “substantially completed”, and indicated that the development would be fully completed by the middle of June, 1978. Appellant represents to the court in this proceeding that the development is “100% completed”. This case therefore presents somewhat of a dilemma in that the review process of Section 380.06, with which appellant has been ordered to comply is directed entirely toward the ultimate issuance of a development order, which presumably will spell out what development shall be permitted. Here, the development not only has been completed, but appellant further advises that it has sold 1,305 lots of a total of 1,892 in Unit Five, and that it has sold 913 of a total of 1,651 lots in Unit Six. In addition, we cannot overlook the fact that appellant acted under at least “colorable” authority during the lengthy period of purchase, planning and developing the property-

The stated purpose of Chapter 380 is to protect the natural resources and environment of the State, preserve water resources, and facilitate orderly and well planned development. Section 380.021, Florida Statutes. In Sarasota County v. Beker Phosphate Corporation, 322 So.2d 655 (Fla. 1st DCA 1975), this court held:

“The entire scheme of Chapter 380 carefully preserves the rights of local governments to the maximum extent possible in ‘zoning’ property within its boundaries; the rights of the regional area by requiring a regional impact study in appropriate cases; the rights of the state by authorizing its land planning agency or the regional planning agency to seek review of local governmental action; and the rights of the landowner, including a specific timetable compelling expeditious action in order to quickly resolve the question of governmental dictates as to the use of his land.” (id. at page 658) (emphasis supplied)

The role of the State land planning agency (Department of Consumer Affairs) is one of supervision and enforcement, adoption of rules of procedure for comprehensive development, uniform procedural review of developments of regional impact, and other rules necessary to carry out the act, as well as to adopt specific guidelines and standards to be recommended to the Administration Commission for determining whether particular developments shall be “presumed” to be of regional impact. Section 380.032; 380.06(5)(c); 380.06(2)(a); 380.-06(7)(d); 380.06(13)(c), and 380.06{14)(a). The agency also may appeal any development order by local government to the Florida Land and Water Adjudicatory Commission (Section 380.07), and is authorized to bring an action for injunctive relief against any person or developer who violates the act, or any rules, regulations or orders issued under it. Section 380.11. No penalties for violations are imposed under Chapter 380, in contrast with other related statutes, for example under Chapter 373 “Florida Water Resources Act of 1972”. Section 373.336, Florida Statutes.

Upon a review of the foregoing statutory provisions concerning the purpose of the Act, the role of the Department, and statutory provisions for enforcement, as applied to the factual circumstances present here, we have difficulty in reconciling the rights of the appellant with the rather drastic results which would follow from application of the Department’s order requiring a termination of sales pending review. Our difficulty is compounded because, although we agree with the Department’s position that appellant has not acquired vested rights status under the statute based upon the theory of estoppel, the same factual circumstances could, and very likely would, be considered as strong arguments for application of equitable estoppel in event of court action against appellant by local government or the agency seeking to enjoin the maintenance of improvements already constructed, or to enjoin further sales of lots pending Section 380.06 review. Tillman v. City of Pompano Beach, 100 So.2d 53 (Fla.1958); Lobean v. Trustees of Internal Improvement Fund, 118 So.2d 226 (Fla. 1st DCA 1960), cert. dis. 127 So.2d 98 (Fla. 1961); Metropolitan Dade County Water and Sewer Board v. City of North Miami, 213 So.2d 482 (Fla. 3rd DCA 1968); Town of Largo v. Imperial Homes Corporation, 309 So.2d 571 (Fla. 2nd DCA 1975); 12 Fla.Jur., Estoppel and Waiver, §§ 82, 83, 84.

There is no indication or suggestion by the Department that any facet of the development in question runs afoul of the purposes sought to be accomplished by Chapter 380. In its brief, the Department states:

It is conceivable, perhaps even likely, that the appellant will be able to develop Units Five and Six exactly as he presently intends after the DRI process is completed.

It appears to us to be an unwarranted and unreasonable exercise of the Department’s jurisdiction and discretion, under the circumstances presented here, to administratively enjoin sales by the developer. This can have no useful purpose other than to serve as a punitive measure. The Department contends that its order does no injury to appellant because it does not down-zone the property, decrease the number of lots, or affect in any way the eventual use of the property. We disagree. The order terminates sales, thus depriving appellant of the only practical use it has for the property, and destroys the only means appellant has of recapturing the millions of dollars invested in the development.

A developer who fails to comply with Chapter 380 should not be rewarded. However, any measures taken by the Department as a consequence of such failure should bear some reasonable relation to the practicalities of the situation, and the purposes to be accomplished. By requiring appellant to comply with the review procedures of Section 380.06 the ends and purposes of the statute can be accomplished, because the course of future developments will be brought under control, and present developments may be reviewed and examined to determine what, if any, changes are considered necessary and, at this stage of the development, are within the authority of local government or the reviewing agency to require. If in the judgment of the Department or of the local government any more drastic measures are deemed advisable during the period required for review and approval, these entities may avail themselves of their statutory authority under Section 380.11 to seek injunctive relief in the local circuit court. Furthermore we see no reason why the expense and effort required to bring this development into compliance with Chapter 380 cannot be minimized under the broad authority given to the Department to enter into agreements with any landowner, developer, or governmental agency as may be necessary to effectuate the provisions of the act. Section 380.032(3).

The provisions of the Department’s order requiring review and approval, and terminating any further developments until completion of the process are affirmed; and that portion of the order requiring termination of sales pending the review process is reversed.

McCORD and SHIVERS, JJ., concur.

      . The Division of State Planning, within the Department of Administration, was the state land planning agency having these responsibilities under Chapter 380, until July 1, 1979, when pursuant to Section 49 of Chapter 79-190, Laws of Florida, these duties were assigned to The Department of Community Affairs.

      . The Department points out that the statute imposes no affirmative duty upon the land planning agency to “seek out” developments in progress in the state; that absent such a duty it cannot be held to be negligent, or barred by laches, for failure to act. City of Winter Haven v. State, 125 Fla. 392, 170 So. 100 (1936). So far as the “vested rights” provision is concerned, it is clear that the agency has no duty to inform a developer one way or the other until a request for a binding letter is submitted under Section 380.06(4)(a).

      . The order prohibiting further development without approval does not appear to be unreasonable.


author: PER CURIAM.

text:
    Loye C. BRYANT et al, Appellant, v. Johnny L. BRYANT et al, Appellee.
    No. OO-324.
    District Court of Appeal of Florida, First District.
    Dec. 27, 1979.
    Rehearing Denied Feb. 20, 1980.

      Thomas W. Brown of Brannon, Brown, Norris, Voeelle & Haley, Lake City, for appellant.
    William R. Slaughter, II, Live Oak, Harry Reid, Sr. and Harry T. Reid, Jr., of Reid & Drury, Jasper, for appellee.
   PER CURIAM.

J. Buford Bryant, since deceased, executed a warranty deed in January 1975 to his son, Johnny, conveying 318 acres of land for $79,500. The land was subsequently appraised at a fair market value of $145,-150. The terms of the mortgage, moreover, allowed Johnny Bryant to pay an amount that was less than the yearly interest, so that the principal would never be paid out.

After decedent’s death, appellants sued to cancel the deed. The trial court quieted title in appellee/Johnny Bryant, and this appeal followed. We reverse.

Buford Bryant was in poor health when he executed the deed and had been in the hospital 16 of the 19 days immediately preceding the transaction. He had been taking about a dozen different medications which could alter his mental ability. He was 71 years old and illiterate. Many of these facts were established by medical testimony. Just prior to the transaction, Johnny Bryant moved in to live with his father.

Here there was an obvious confidential relationship between the father and his son. That fact, as well as the inadequate consideration and medical testimony as to decedent’s mental state, mandates reversal:

[Inadequacy of consideration, coupled with such a degree of mental weakness as would justify the inference that advantage had been taken of that weakness, [would] furnish sufficient ground for equitable interference.

Douglas v. Ogle, 80 Fla. 42, 85 So. 243, 244 (1920). See Hartnett v. Lotauro, 82 So.2d 362 (Fla.1955).

The beneficiary of a will is faced only with the burden of coming forward with a reasonable explanation for his actions vis-a-vis the decedent. In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971). This rule applies to transactions other than testamentary ones. Pate v. Mellen, 275 So.2d 562 (Fla. 1st DCA 1972); Majorana v. Constantine, 318 So.2d 185 (Fla.2d DCA 1975). Johnny Bryant, however, called only one witness, the attorney who handled the transaction for him. The attorney’s statements amounted to no more than that, having talked briefly a few times to Buford Bryant, he thought the decedent knew what he was doing. In light of the confidential relationship, the inadequate consideration, and testimony by the treating physician that decedent displayed “continuing evidence of brain dysfunction” at the time the deed was executed, Johnny Byant failed to meet his burden.

The trial court must also be reversed in part as to another of his rulings, which involved Buford Bryant’s bank account. Four days before the deed was executed, decedent allowed Johnny Bryant’s name to be added to his checking account, which at the time had an $18,000 balance. Over the next twelve months, decedent wrote one $6,000 check to Johnny Bryant, and the latter withdrew $15,000 himself.

The judge ordered Johnny Bryant to return the $15,000 he had withdrawn but allowed him to keep the $6,000 from the check decedent wrote. The trial judge was correct as to the $15,000, but erred regarding the $6,000; if decedent lacked mental capacity to execute the deed, he lacked capacity to change his bank account and write the check.

We reverse in part and remand to the trial court for proceedings consistent with this opinion. The deed should be vacated and the $6,000 returned, but the trial judge may consider whether Johnny Bryant is entitled to an offset for any payments he may have made for the property.

McCORD, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    VANDERBILT TOWERS, UNIT ONE OF NAPLES, INC., a nonprofit corporation, Appellant, v. SUMMIT PROPERTIES, an Ohio Trust, Appellee.
    No. 78-2189.
    District Court of Appeal of Florida, Second District.
    Dec. 28, 1979.
    Rehearing Denied Jan. 30, 1980.
    John R. Asbell, of Asbell, Hains & Doyle, Naples, for appellant.
    James H. Seals, of Moorey, Seals & Gar-vin, Fort Myers, for appellee.
   PER CURIAM.

This case involved complicated factual and legal issues which need not be outlined here. Upon review of the record and briefs and after hearing oral argument, we have concluded that the trial court correctly ruled that the lease agreement was sufficiently ambiguous to permit the introduction of parol evidence to aid in its interpretation. Furthermore, the evidence supports the court’s conclusion that paragraph 22(c) should not be read to limit the application of both paragraphs 22(a) and 22(b) to those occasions in which there has been a substantial change in use or improvements on the land. However, there was no basis for the court to strike paragraph 22(c) in its entirety. Accordingly, paragraph 22(c) is modified to read as follows:

(c) The amount of the rentals due as determined by the alternate provision as set forth in paragraph 22(b) shall only be used if and in the event of a substantial change in use or improvements on the land.

The lease agreement as modified comports with reason and common sense and more nearly reflects the intentions of the parties at the time the lease was entered into.

Otherwise, the final judgment is AFFIRMED AS MODIFIED.

GRIMES, C. J., and BOARDMAN and RYDER, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    JOHN STEPP, INC., Appellant, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF MIAMI, Charles J. Kedl, Jr., and Elena A. Kedl, his wife, et al., Appellees.
    No. 78-414.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 1980.
    Rehearings Denied Feb. 26, 1980.

      Harry G. Carratt, of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, and Grimditch, Bentz, Witte & Wunker, Pompano Beach, for appellant.
    Phillip G. Newcomm, of Shutts & Bowen, Miami, for appellee, J. Ervin Lewallen.
   DOWNEY, Chief Judge.

The issue involved on this appeal is appellant’s right to exercise an equity of redemption after a judicial sale but prior to confirmation thereof.

The Kedls owned a parcel of residential real estate upon which appellee, First Federal Savings and Loan Association, held a mortgage. When the Kedls failed to make the mortgage payments First Federal filed suit to foreclose. The Kedls defaulted; final judgment was entered; the property was sold on January 9, 1978, to Lewallen for $66,000 and a certificate of sale was issued on that date.

On January 6, 1978, appellant acquired title to the property by warranty deed from the Kedls and recorded said deed on January 9, 1978, after the judicial sale of the property was concluded. On January 16, 1978, Charles C. Hibbs, president of appellant, paid into the Registry of the Court $55,800.35, the amount required to redeem the property. Simultaneously, Hibbs filed a motion for redemption signed by the Kedls. The motion was signed by the Kedls because the deputy clerk advised Hibbs that the motion should bear the Kedls’ names since they were the defendant-mortgagors. On January 20, 1978, four days after the motion for redemption was filed, Lewallen filed a motion to confirm the sale. Several notices of hearing on this motion for confirmation were given to the Kedls but they refused to appear in support of the motion. No notice was given to appellant or Hibbs because their names did not appear on any pleadings.

On February 9, 1978, the trial court entered an order confirming the sale. On February 16, 1978, appellant learned of the confirmation and immediately filed motions for rehearing and for leave to intervene, which were denied. Said motions alleged that appellant had purchased the property from the Kedls on January 6, 1978, and received a. Warranty Deed therefor; that negotiations had taken place with the mortgagee for appellant to reinstate the mortgage, but insufficient time to examine the title indicated the better procedure was to redeem the property by paying the entire mortgage; that on January 16, 1978, appellant’s president had tendered into the Registry of the Court the sum of $55,800.35 and filed a motion for redemption of the property signed by the Kedls because the deputy clerk had advised them that was the way to handle it; that it was not until February 16, 1978, that appellant learned of the confirmation of the sale or any other proceedings connected therewith.

Essentially the trial court held that the deposit into the Court Registry made by Hibbs was made by a stranger to the proceeding; that no payment had been made by the defendants-Kedls, and that the motion for redemption “constitutes a subversion of the sale procedure authorized by statute, and in reality, is an unlawful attempt to benefit other than the defendants.”

It was conceded at oral argument that the real party in interest on this appeal is Lewallen, and he makes a very persuasive argument in support of the trial court’s decision. The contention is that Lewallen must prevail because he relied upon the record title which gave only the Kedls the right to redeem; the Kedls did not pay the redemption price; did not pursue their motion for redemption and thus the trial court cannot be faulted for confirming the sale. While conceding the logic and technical nicety of appellees’ position, we feel it favors form over substance and fails to recognize that the law favors redemption by anyone who has an interest in the mortgaged premises who would be a loser by foreclosure. Dundee Naval Stores Co. v. McDowell, 65 Fla. 15, 61 So. 108 (1913); 22 Fla.Jur., Mortgages, § 406.

Although at the time of the order of confirmation the trial court did not have all of the pertinent information before him, he did so when he ruled upon appellant’s motions for rehearing and for intervention. At that point the court was apprised of the fact that within the time allowed by law, i. e., anytime prior to an order of confirmation, appellant, through its president, Hibbs, had deposited the requisite amount of money for redemption into the Court Registry and that a timely motion for redemption had been filed, albeit signed by the Kedls. He was further advised that the Kedls signed this motion in compliance with the Clerk’s specific instructions to Hibbs, appellant’s agent.

We know that a mortgagor’s equity of redemption is an estate in land; that the right of redemption is an incident of all mortgages and cannot be extinguished except by due process of law; and that the right belongs to the mortgagor and those claiming under or through him. In Allstate Mortgage Corp. of Florida v. Strasser, 286 So.2d 201 (Fla.1973), the court held that the right of redemption continues to exist until the foreclosure sale has been confirmed by the court, or if no objection, then until issuance of the certificate of title.

The actual facts of this case are that before the sale was confirmed the mortgagors, Kedls, conveyed their interest in the property to appellant. Appellant paid the redemption price into the Registry of the Court through its president. The appellant filed a motion for redemption, albeit signed by the Kedls as the Clerk directed. In substance, all things necessary to be done were completed prior to confirmation, coupled with the fact that Lewallen purchased the property knowing redemption by the Kedls or their grantee was always a possibility. Since appellant held legal title, it was no stranger to the property. In our view the real problem was created here by the motion for redemption’s being filed in Kedls’ name instead of the motion’s being filed by appellant setting forth the ownership, payment of the money into Court Registry and request for redemption. Had this been before the court at the time of Lewal-len’s motion for confirmation, we feel the trial court would have been compelled to deny confirmation. Further, the true factual situation having been presented to the court via the petition for rehearing, we feel the trial court erred in not granting rehearing and setting aside the order of confirmation.

Accordingly, we reverse the order denying appellant’s petition for rehearing and remand the cause to the trial court with directions to grant the motion for redemption in favor of appellant.

REVERSED AND REMANDED, with directions.

LETTS and BERANEK, JJ., concur.

      . Hoffman v. Semet, 316 So.2d 649 (Fla. 4th DCA 1975).

      . Quinn Plumbing Co. Inc. v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690 (1930).

      . Robbins v. Blanc, 105 Fla. 625, 142 So. 223 (1932).


author: SCHWARTZ, Judge.

text:
    ALLAPATTAH COMMUNITY ASSOCIATION, INC. OF FLORIDA, a Non-profit Corporation, and Martin Spellman and Patricia Spellman, his wife, residents and taxpayers of the City of Miami, Appellants, v. CITY OF MIAMI, Florida, a Municipal Corporation, Appellee.
    No. 79-1190.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 1980.

      John Lazarus, Miami, Legal Services of Greater Miami, for appellants.
    George F. Knox, Jr., City Atty., and G. Miriam Maer, Asst. City Atty., for appellee.
    Before HAVERFIELD, C. J., and SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

Notwithstanding the strong recommendation of its planning department and a 4-1 decision of the Planning Advisory Board to the contrary, and over the vigorous objections of the vast majority of the residents of the affected area, the City of Miami Commission changed the zoning of a portion of the Allapattah community from residential (R-3, R-4) to commercial (C — 5) usage. We find that the rezoning was not based upon any factually supported or legally cognizable ground which could serve to justify that action and was therefore not “fairly debatable.” Since the court below held otherwise, we reverse the judgment under review.

The property which was the subject of the rezoning is located on the north side of N.W. 23rd Street between 17th and 25th Avenues, to a depth of 175 feet. It is indicated by the cross-hatching on the map which is reproduced below:

In keeping with the existing R-3 and R-4 zoning (low and medium multiple residential use, respectively), the north side of N.W. 23rd Street is now overwhelmingly residential in character. In addition to many private homes, a HUD public housing development and a high school, among other structures, face directly on the street. On the other hand, the south side of the street, which forms a part of what is known as the Allapattah Industrial area, is zoned C-5 (liberal commercial). Consistent with that classification, it is almost entirely commercial and contains warehouses, automobile repair facilities and the like. To the south of this area, 1-1 (light industrial) zoning extends to N.W. 20th Street.

One of the commercial establishments on the south side of 23rd Street is a large meat packing plant operated by Northwestern Meat, Inc. In late 1977, that company, desiring to expand its operation, applied to the Miami Zoning Board for the rezoning of four lots on the north side of 23rd, across the street from its plant. The Zoning Board denied the application on the stated ground that such a change would result in undesirable “spot zoning” of the area. Northwestern then appealed to the Commission, which requested the professional staff of the city’s planning department to undertake a “broader study of the area” and to make recommendations accordingly. During this period, the time limitation for the presentation of Northwestern’s “appeal” from the Zoning Board expired, and the Commission therefore took no formal or final action upon it.

Under the city code, Northwestern’s request for a rezoning of the four lots in question could not have been renewed for one year. The Commission, however, submitted to the city’s Planning Advisory Board a proposal to rezone to C-5 the entire strip of the residential property on the north side of N.W. 23rd Street — of course including the four lots with which Northwestern was concerned. It was this proposal which was eventually adopted and which is now before us.

Pursuant to the commission’s request, the Planning Advisory Board held an extensive hearing, the transcript of which has been made a part of the record on appeal. Several residents of the area appeared, including one of the present appellants, Mrs. Patricia Spellman, who owns a home in the strip in question at the corner of 23rd Street and 24th Avenue. Many of them had lived in the area, one of Miami’s oldest and most traditional residential neighborhoods, for periods ranging from 10 to 30 years. With perhaps one exception, all expressed both their desire to continue to reside in the area as it was, and their concern that commercial zoning would severely harm, if not destroy its still-viable residential nature. No residents of the area north of 23rd Street, either before the Board or, later, before the Commission, ever expressed any dissatisfaction with the neigh'borhood whether because of the traffic on 23rd Street or for any other reason. They wished only to preserve its character and therefore, virtually unanimously, were in opposition to the proposed rezoning.

At both the Planning Board and the Commission hearings, the Planning Department presented the results of the study requested by the Commission. Its professional recommendation was unreservedly against the proposal. Its conclusions were stated as follows:

There is no justification for the rezoning of the residential area along the north side of NW 23rd Street between 17th and 27th Avenues. The basis for this recommendation is as follows:
Comprehensively, there is no justification for additional commercial zoning, due to the fact that ample properly zoned land (1-1) exists in near proximity to the subject area which is vacant or underutilized (presently occupied with low density residential wood structures in various states of disrepair). As indicated on the attached map titled ‘Allapattah Industrial Area,’ and as reported by the Miami Comprehensive Neighborhood Plan studies, sufficient land is available, based on recent trends, to accommodate commercial and industrial expansion in this area for the next 12 to 15 years.
Any change to commercial zoning would not be consistent with the existing established land use pattern of the area.
The proposed change would not be in accord with the proposed Miami Comprehensive Neighborhood Plan which recommends low-moderate density residential land use for the north side of 23rd Street.
If zoning changes occur the impact on the abutting residential development would be greater than the impact upon the existing residential development facing the existing commercial development. Close proximity of commercial development (10' rear setback) could affect the quality of life more than facing commercial uses due to the street’s spatial quality, and scheduled landscaping and buffering improvement.
The encroachment of additional commercial activity into the residential area could have a negative impact with respect to the stability of the residential area to the north. Efforts such as the ‘Comprehensive Neighborhood Rehabilitation Program’ which promotes investments and interest in existing housing stock could likewise be adversely impacted.
A change as proposed would increase auto and truck traffic on 23rd Street and could introduce additional commercial traffic into the residential area between 23rd and 28th Streets.

After the Planning Board voted 4-1 to recommend that the proposal be rejected, the City Commission proceeded to consider the rezoning at its meeting of September 28, 1978. As they had before the Planning Board, the planning department and representatives of the residents presented their opposition. As at the Advisory Board level, three types of argument were presented on the other side:

(a) A non-resident of the area, who happened to be the architect for Northwestern Meat, stated his opinion that the commercial traffic on N.W. 23rd Street was too heavy, too dangerous, and incompatible with the residential character of the north side of the street.
(b) Several persons, all non-residents of the area, and three of whom were associated with Northwestern Meat, stated their conclusion that the area should be rezoned so as to attract new business and industry to the city.
(c) Statements were made by various persons at the meeting, notably including the attorney for Northwestern Meat and the city commissioner who moved for the adoption of the ordinance, that it was “poor planning” to permit a street to serve as a dividing line and buffer zone between two zoning districts.

At the conclusion of its meeting, the commission voted 3-2 to adopt the proposal by enacting ordinance No. 8862, which provided as follows:

WHEREAS, the City Commission, notwithstanding the recommendation of denial by the Miami Planning Advisory Board, and after careful consideration and due deliberation of this matter, deems it advisable and in the best interests of the City of Miami and its inhabitants to amend said Ordinance as hereinafter set forth;
NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA:
Section 1. Ordinance No. 6871, the Comprehensive Zoning Ordinance for the City of Miami be, and the same is hereby amended by changing the zoning classification of the north side of N.W. 23rd Street generally to a depth of 175', from 364.5' west of N.W. 17th Avenue to N.W. 25th Avenue, from R-3 (Low Density Multiple) and R-4 (Medium Density Multiple) to C-5 (Liberal Commercial); .

The Allapattah Community Association, Inc., and Martin and Patricia Spellman sought review of the ordinance in the Dade County Circuit Court. The appellate division of the lower court affirmed on the simple statement that it found the measure to be “fairly debatable.” The Spellmans and the Association then took certiorari, which we have treated as an appeal, to review the Circuit Court decision.

It is axiomatic that no zoning regulation may be sustained unless it bears a substantial relation to the public health, safety, morals, or welfare. E. g., City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953); Town of Belleair v. Moran, 244 So.2d 532 (Fla. 2d DCA 1971) and cases cited. It is required that those who, like the appellants in this case, seek to set aside a particular zoning decision clearly demonstrate that it is not even “fairly debatable” that no such relationship exists. City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968). That heavy burden has been successfully carried here.

We start by stating the rule that those who own property and live in a residential area have a legitimate and protecta-ble interest in the preservation of the character of their neighborhood which may not be infringed by an unreasonable or arbitrary act of their government. See City of Miami v. Zorovich, 195 So.2d 31, 37 (Fla. 3d DCA 1967), cert. denied, 201 So.2d 554 (Fla.1967), and cases cited. As the court stated in Watson v. Mayflower Property, Inc., 223 So.2d 368, 373 (Fla. 4th DCA 1969), cert. discharged, 233 So.2d 390 (Fla.1970):

It is self-evident that the general welfare of a community demands that in some part or parts of its land area citizens may develop their homes without fear of losing a substantial segment of their economic investment or the comfort and enjoyment of their homes by the encroachment of commercial developments.

The record, read in the light of the applicable law, provides not even an arguable basis for the severe compromise of the residential character of the area north of 23rd Street effected by the ordinance under review. None of the grounds asserted by the city for the contrary contention that the ordinance is related to the public health, safety and welfare has merit, or, as this court put it in Dade County v. Beauchamp, 348 So.2d 53, 55 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 512 (Fla.1978), “makes sense:”

(1) There is nothing whatever to the claim that the rezoning is necessary to safeguard the neighborhood from the dangers of heavy traffic on 23rd Street. Compare, e. g. Watson v. Mayflower Property, Inc., supra. The only portion of the record which might support this conclusion, is the suspiciously altruistic statement of Northwestern’s architect concerning a condition of which those supposedly affected did not themselves complain. His opinion, however, was a mere non-expert conclusion which is therefore devoid of any evidentiary value whatever. See Katz v. Dade County, 367 So.2d 277, 279 (Fla. 3d DCA 1979), cf. South Central Association of Neighbors, Inc. v. Lindsey, 21 Or.App. 578, 535 P.2d 1381 (1975). This is particularly the case when the only competent evidence in the record — the expert opinion of the planning department based upon a Dade County Traffic Department survey — is completely to the contrary. The planning department’s representative before the Commission, Mr. Whipple, characterized the traffic on 23rd St. as “minimal;” its report states both that N.W. 23rd is considered to be “a local service street with light traffic,” and that traffic problems would come into existence only if the proposed rezoning is accomplished. It is thus to stand reality on its head to attempt to justify the action taken by the commission by asserting that it will serve to alleviate an existing traffic hazard.

(2) The statements in the record that the rezoning is needed to promote the commercial development of the city are similarly subjective and conclusory, and thus similarly valueless. See Katz v. Dade County, supra; South Central Association of Neighbors, Inc. v. Lindsey, supra. Once again, the planning department found, on the basis of its objective survey, that “ample properly zoned land exists in near proximity to the subject area which is vacant or underutilized . . [Sufficient land is available, based on recent trends, to accommodate commercial and industrial expansion in this area for the next 12 to 15 years.” Thus, it clearly appears that any paucity of commercial or industrial enterprises in the area has nothing at all to do with an insufficiency of appropriate zoning. The following statement in Kennedy v. City of Evanston, 348 Ill. 426, 181 N.E. 312, 314 (1932), which invalidated a zoning amendment permitting apartments in a formerly single-family neighborhood, is entirely apropos:

No showing has been made why the vacant and poorly improved land in the B use district cannot be used for apartment houses before it is necessary to encroach on the A territory. At the rate at which apartment buildings have been erected in the B territory south of Keeney street since 1921, there are enough vacant lots to take care of the growth for many years. Appellants, at the time they bought their homes, had a right to rely upon the classification of the property in question which then existed and upon the rule of law that the classification would not be changed unless the change was required for the public good.

(3) Lastly, both the law and common sense entirely disprove the suggestion that it is somehow improper for N.W. 23rd Street to serve as the divider between the residential zone on the north and the commercial area to the south. Because, as the courts have repeatedly said, boundary lines between zoning districts necessarily have to be placed somewhere, it is not only not “poor planning,” it is entirely appropriate for the divider to be a street. See City of Miami Beach v. Wiesen, 86 So.2d 442 (Fla. 1956); Dade County v. Miller, 325 So.2d 418 (Fla. 3d DCA 1976); Town of Surfside v. Skyline Terrace Corp., 120 So.2d 20 (Fla. 3d DCA 1960), cert. denied, 123 So.2d 675 Fla. 1960). The fallacy underlying the city’s contention on this issue is best illustrated by the effect of the very ordinance in question, which is a classic case of the prescribed cure being far worse than the supposed disease. Instead of the entire width of N.W. 23rd Street acting as a buffer for the zone, commercial usage has been permitted to intrude directly into the residential area itself, with only a 10' set back requirement intervening between the commercial development and the still-existing R-3, R-4 zoning to the north of the dezoned strip. Since, under the city’s reasoning, this is all-the-more-obviously insufficient, there would be no basis for resisting future inroads into the block north of 23rd Street until 24th Street became the dividing line— and then crossing that street on the same theory asserted to support the present action. Thus, the entire Allapattah residential community — and, for that matter, every residential area in the city — would be defenseless against the advance of commercial or industrial development imposed merely by the fiat of the commission. As our supreme court wisely observed may years ago in City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, 366 (1941);

At the juncture of these streets property which may be devoted to business abruptly ends and that which may be used for hotels and apartments as suddenly begins but there must be a line of demarcation between them somewhere. See State ex rel. Townsend v. Farrey, 133 Fla. 15, 182 So. 448; Zahn v. Board of Public Works, 195 Cal. 497, 234 P. 388. The fact that his land is situated across the street from that on which commercial enterprises may be operated was not alone enough to support plaintiff’s position that he should be given the same latitude in the use of his property. Were this the case it would be but a matter of time before alterations of the whole scheme by successively liberalizing the use of abutting property would result in disintegration and disappearance of the whole plan of zoning, [e. s.]

We reject, therefore, the idea that an appropriate way to correct supposedly improper planning is to make it worse.

Thus, there is nothing of a competent, substantial nature to contradict or impeach the conclusive showing made by the planning department, by the contents of the proposed Comprehensive Development Plan, and by the present appellants and those they represent, that Ordinance No. 8862 is not reasonably related to the public welfare. Dugan v. City of Jacksonville, 343 So.2d 103 (Fla. 1st DCA 1977); Rural New Town, Inc. v. Palm Beach County, 315 So.2d 478, 479 (Fla. 4th DCA 1975); South Central Association of Neighbors, Inc. v. Lindsey, supra; compare Miles v. Dade County, 260 So.2d 553 (Fla. 3d DCA 1972). Rather, an analysis of the record reveals that, the window dressing aside, the only and real reason for the rezoning was that Northwestern Meat wanted to use the north side of 23rd Street for commercial purposes, and a majority of the Commission wished to grant it that right. The law, however, will not and cannot approve a zoning regulation — or any governmental action adversely affecting the rights of others — which is based on no more than the fact that those who support it have the power to work their will. As the Supreme Court of Illinois stated in Kennedy v. City of Evanston, supra, at 181 N.E. 314-315:

Appellee insists that the fact that a majority of the property owners in and adjoining the district in question want the change is proof, of the changing condition of the territory. The power to amend is not arbitrary. It cannot be exercised merely because certain individuals want it done or think it ought to be done. The change must be necessary for the public good.
Appellee contends that the zoning commission was in error in the classifications of 1921 and 1927, and that the purpose of the statute is to enable the amendment of zoning classifications not only to take care of readjustments called for by the changing character of neighborhoods, but also to remedy particular errors or hardships. The evidence does not show that the zoning commission and the city council were in error in the original classification. The action of the zoning commission in recommending the amendment in the fall of 1928 after having denied a similar petition earlier in the same year might be attributed to the fact that certain property owners agreed to the widening and paving of the streets provided the reclassification was made. These agreements not only fail to show that the amendments to the ordinance were passed for the public good, but they tend to show that they were passed in deference to the wishes of certain individuals. The ordinance of 1929 cannot be sustained under the law and the evidence, . . . [e. s.]

See also South Central Association of Neighbors, Inc. v. Lindsey, supra; Davis v. Nolte, 231 S.W.2d 471 (Tex.Civ.App.1950).

Finding, for these reasons, that the zoning enactment challenged in this proceeding bears no reasonable relation to the health, safety, morals or welfare of the public, and that it is therefore arbitrary and unreasonable, we reverse the judgment under review and remand the cause with directions that City of Miami Ordinance No. 8862 be quashed.

Reversed and remanded.

      . Under the scheme established in the code, the Zoning Board considers applications for variances or changes in zoning as to particular parcels, such as that embodied in Northwestern’s initial request; while the Planning Advisory Board is concerned with proposals which deal with the planning and zoning of larger areas, like the commission’s suggestion that the entire strip on the north side of 23rd street be rezoned.

      . Many of the residents who were elderly, and on fixed incomes, expressed the now-familiar concern that real estate taxes would rise because of the increased value caused by the commercial zoning and that they would therefore be forced to move from their homes.

      . The department noted, among other things, that a large amount of money had been expended specifically to safeguard the residential nature of the north side of 23rd Street. Its report stated:
      The third year Community Development Program has allocated $250,000 for street repair, construction of curb, gutter and sidewalks where needed, and landscaping of NW 23rd Street, between 17th and 27th Avenues. This activity is but a small part of the total Community Development effort in the Alla-pattah area. During the first three years of Community Development funding, allocations were made to improve all the edges of this neighborhood including NW 23rd Street. The two main reasons for the beautification and improvement of NW 23rd Street are to protect and encourage the confinement of the residential neighborhood by creating a buffer zone between the liberal commercial and residential development through landscaping and improved parking facilities. The other objective is to improve the visual character of the street through the channelization of traffic movements, defining of parking and access points and landscape screening and beautification in front of existing development.

      .The city did not raise the issue of standing either in the Circuit Court or in this one. It might be observed, however, that, although the status of the Community Association is at least doubtful, there can be no question of the standing of the Spellmans, who own property within the very area which was rezoned over their objection, to challenge that action. See Hemisphere Equity Realty Co., Inc. v. Key Biscayne Property Taxpayers Ass’n, 369 So.2d 996, 1001 (Fla. 3d DCA 1979). There is thus no obstacle to our consideration of the case on its merits.

      . See United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979).

      . While almost all of the cases which speak of this interest deal with the “usual” situation in which a governmental unit resists, in the name of neighborhood integrity, an attempt to liberalize the zoning of residential property, the principle is equally applicable when, in the converse situation presented here, a city seeks to justify an encroachment of its own upon the existing nature of the area in question.

      . The term “required for the public good” appears to be equivalent to the Florida test of relationship to the public health, safety and welfare.

      . Northwestern Meat actually owns property, presently zoned 1-1 and C-5, south of its existing facility. Its president stated, however, that, because it was easier to cross 23rd St. to the north than the railroad tracks to the south, it was more convenient to expand his business into the residential area. Thus, the rezoning was not even required, but was merely preferred, by the private entity to which it was granted. But see South Central Association of Neighbors, Inc. v. Lindsey, supra.

      . There is a further reason why the ordinance should not be upheld. It seems clear that the Zoning Board was correct in rejecting Northwestern’s original application for the commercial use of four lots on the north side of 23rd Street as impermissible “spot zoning” in the residential area. E. g., Parking Facilities, Inc. v. City of Miami Beach, 88 So.2d 141 (Fla. 1956); County of Brevard v. Woodham, 223 So.2d 344 (Fla. 4th DCA 1969), cert. denied, 229 So.2d 872 (Fla.1969); 7 Fla.Jur.2d Building, Zoning, and Land Controls § 110 (1978). Plainly an action which purports to obviate this problem by changing the zoning of the entire area cannot be upheld. If it is improper to create a spot in a neighborhood, it is even more plainly unacceptable entirely to obliterate it.


author: BAKER, JOSEPH P., Associate Judge.

text:
    In the Interest of S. B. B., a Dependent Child.
    No. 78-256.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 25, 1980.

      Jeanne E. Faiks, Fort Lauderdale, for the natural parents, appellants.
    Harold L. Braynon, Fort Lauderdale, for the Department of Health & Rehabilitative Services, appellee.
   BAKER, JOSEPH P., Associate Judge.

This is an appeal from an order permanently committing a child to the Florida Department of Health and Rehabilitative Services for subsequent adoption and depriving the natural and.legal parents of all parental rights.

History of the Case

At age two and a half S.B.B. was declared a dependent in November 1973. The original order- finding dependency was based on the inability of the mother and natural father to provide support; and there being no relatives willing to assume responsibility for Sharon, she has lived continuously since then in state protective custody. During that time this child has been moved from one shelter or foster home to another about once a year. S.B.B. is now nine years old.

The order finding S.B.B. dependent was reviewed and the placement of her in state custody was continued by the circuit court in 1975 and again in 1977. Shortly after the review in 1977, S.B.B.’s case worker petitioned the circuit court to sever parental rights preliminary to placement for adoption, and the order granting the petition was entered in September 1977. The parents of S.B.B. then appealed that decision to this court.

The Child’s Family

The natural mother and father hold themselves out in their community as a married couple using the names, “Mr. and Mrs. Nice.” In fact, they are both married and have been married for many years, but not to each other. Mrs. Nice (as she will be called hereafter) had been separated from her legal husband five years .when S.B.B. was born. Mr. Nice is the natural father, and he has a legal wife and family elsewhere. At the time of the original dependency order Mr. Nice had gone back north in very bad health and had been hospitalized with a heart attack. Mrs. Nice was left destitute, homeless and unable to cope alone with the responsibility for her child, S.B.B. Shortly after S.B.B. was placed in state protective care in 1973, the Nices reunited and have remained together ever since.

Mr. Nice is over seventy years old and he continues to have medical problems, especially his heart condition. He receives a social security check and works part time in a service station providing the only income for the family.

Mrs. Nice is thirty-five and has a history of problems of her own. Her overriding problem is a phobia against traveling in automobiles that Mr. Nice says began following a serious automobile accident that she was involved in at around the same time S.B.B. was adjudicated a dependent child. As a result of this phobia she has not been able to hold a job. A social worker testified that her investigation of the mother’s background indicated that the mother is retarded, although this apparent retardation could also be explained as a reflection of Mrs. Nice being very withdrawn and extremely introverted. Mrs. Nice did not attend any of the hearings in court. Mr. Nice said this was because of her previously mentioned phobia, and the record indicates that she was very fearful of a confrontation such as occurs in a courtroom.

Neither the mother nor the natural father have visited the child while she has been in state custody, and the child would not recognize them at this point. Mr. Nice testified that parental visitation with the child was so restricted by representatives of the Department of Health and Rehabilitative Services that neither he nor Mrs. Nice was able to visit the child.

Four months before the hearing in 1977 where parental rights were severed, Mrs. Nice’s two teenage sons by her legal husband came to live with the Nices. These two boys had been dependent children in their home states before coming to Florida.

Department Policy

The Department of Health and Rehabilitative Services made a “contract” with Mr. and Mrs. Nice, shortly after the child was placed in department custody. This “contract” was a list of conditions that must be met by the Nices regarding their employment, housing, provisions for day care and medical care for their child, transportation, visitation and counseling, among other things, before they could have their child back. The conditions laid down by the Department for this case were not significantly different from the conditions required of other parents whose children have been adjudicated dependent and placed in state custody.

Mr. and Mrs. Nice complied with some, but not most, of the conditions. It was argued on behalf of the parents that the medical conditions of the father and the problems of the mother made them unable to perform as the Department required in the “contract” without support and help-from somebody, but that support and help were not available.

Legal Counsel

The parents did not have any legal counsel until the hearing on severance of parental rights in 1977. Their present counsel have undertaken to represent them in the trial court and on appeal out of concern, with little expectation of receiving a fee. The Department’s counsel filed a brief in this appeal but did not appear for oral argument.

A Pattern

Although • the facts of this case are unique, they conform to a pattern that is common in dependency cases. The pattern begins with the coupling of two individuals who can barely subsist alone, and they get together with an equivocal commitment to each other. Their marginal existence together becomes submarginal when a child is born. Then, a crisis arises requiring them to give up the child; and lacking volunteers among their relatives, the state takes custody of the child. The parents later reconcile and manage to subsist without the child in their home, but they are never able to meet the standards required by the state for return of the child. The child, meanwhile, lives in surrogate families, changing homes many times. Visitation of parents and child is infrequently permitted by the Department, and those visits permitted are not regularly exercised.

Perhaps their counsel is right in arguing that Mr. and Mrs. Nice are more to be pitied than caluminated, and perhaps this is true of many marginal parents who are unable to provide for their young, but no one can be satisfied at the plight of S.B.B., in whose interest this proceeding was begun over six years ago.

Holding

The order of permanent commitment for adoption is affirmed.

Comment

This baleful story of the life of S.B.B. calls attention to an all too common problem of dependent children who grow up without ever knowing a permanent family. What is clearly needed is a much earlier determination that the natural parents are inadequate and unable to provide a home for their child. More frequent reviews of such cases are now mandated by statute [§ 409.168, Fla.Stat. (1978)], and that is an improvement. Another reform that is needed is for the state to take an active role in trying to return the child to the natural parents to see if they can reassume their parental duties, rather than a passive role of laying down conditions that the parents must meet and waiting to see if the parents can do it on their own.

That is not to say the problem can be laid off by the judiciary entirely on the department of Health and Rehabilitative Services. Legal proceedings do not lend themselves easily to resolving child dependency cases. The legal system is going to have to take account of the special problems of these cases and adapt itself. One thing we should do is to recognize that dependency cases are legal proceedings, and extremely important ones as far as all of the interested persons are concerned. To provide legal counsel early on for the parents in dependency cases would be one way to be sure that the parents knew all along of their duties to care for the child and the' consequences of their failure to do so. Legal counsel for the parents would also make the discussions between the state and the parents on visitations and the conditions for return of the child more nearly negotiations, rather than having the terms dictated by the child welfare worker regardless of the special needs of the parents.

By statute now the parents and the children are said to have a right to counsel in dependency cases [§ 39.406, Fla.Stat. (1978)], but to my knowledge the only lawyers available in most places are those who are willing to contribute their services, which is not a reliable source of competent lawyers for such sensitive cases. In this case the volunteer lawyers for the parents of S.B.B. did a thoroughly professional and competent job at the commitment hearing and on appeal, but they came into the case very, very late, and after their clients’ cause was lost. See In the Interest of R.W.H., 375 So.2d 321 (Fla.2d DCA 1979).

If there is a kind of case that cries out for expedited handling, it is this kind of dependency case involving placement of children for adoption. Whatever the judicial resolution of these cases turns out to be, to a child in state custody a judicial decision delayed is justice denied.

Accordingly, as noted supra, the order of permanent commitment for adoption is affirmed.

ANSTEAD, J, and CROSS, SPENCER C., Associate Judge, concur.


author: ANSTEAD, Judge.

text:
    Roger Ray PUGH, Appellant, v. STATE of Florida, Appellee.
    No. 79-325.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1980.
    Rehearing Denied Feb. 27, 1980.

      Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from a judgment of conviction and sentence of five years imprisonment after appellant’s probation was revoked. At issue is the appellant’s claim that he was sentenced in violation of a negotiated agreement entered into by himself and the state and approved by the court.

On June 7, 1978, appellant was charged with delivery of cannabis. After negotiations with the state the appellant agreed to enter a plea of guilty:

the terms of the negotiations being a cap of one year with credit for time served, probation and adjudication up to the court.

In addition the state agreed to and did dismiss another case pending against appellant. The trial court accepted the terms of the plea negotiations and allowed appellant to change his plea to guilty. Subsequently, appellant was adjudicated guilty and placed on probation for a term of five years with the condition that he spend 100 days in the county jail. Appellant was specifically advised by the trial court concerning the potential jail time involved:

THE COURT: You realize I can put you in jail for one year, giving you credit for time served?
MR. PUGH: Yes.
THE COURT: Also, put you on probation for a period of five years. If you violate that probation, I can put you in jail for an additional four years. Do you understand that?
MR. PUGH: Yes.

No objection was made to the terms of the order of probation.

On January 22, 1979, appellant’s probation was revoked and he was sentenced to five years imprisonment with credit for time served. Again, no objection was raised by appellant as to his sentence. However, on January 24 the appellant filed a motion to “correct” his sentence alleging that the trial court was without authority to sentence him to more than the one year stipulated to in the original plea negotiations. Upon hearing, that motion was denied. This appeal followed.

In Mulder v. State, 356 So.2d 870 (Fla. 4th DCA 1978), this court, citing Section 948.06(1), Florida Statutes (1975), held that upon revocation of probation a trial court is free to impose any sentence of imprisonment up to the statutory maximum regardless of whether the original guilty plea and order of probation were entered pursuant to plea negotiations contemplating a maximum amount of imprisonment that could be imposed at the time of the original plea. In Mulder the defendant had negotiated for a two year maximum. Instead he was placed on probation for three years and upon revocation was sentenced to three years imprisonment.

In Segarra v. State, 360 So.2d 79 (Fla. 3d DCA 1978), on facts somewhat distinguishable from those involved herein, it was held that a defendant whose plea was subject to an agreement that the maximum sentence he could receive would be five years in prison, could not thereafter, upon revocation of probation, be sentenced to more than five years. The Segarra court noted that probation was not contemplated by the plea negotiations and it does not appear that the defendant was specifically advised that upon revocation of his probation he could be sentenced to more than five years.

In Kord v. State, 361 So.2d 800 (Fla. 3d DCA 1978), the court reduced a five year sentence to two years on the basis of an explicit agreement among the defendant, the state, and the trial court that it would be a condition of appellant’s probation that should he violate probation he would be sentenced to two years imprisonment.

In Mayo v. State, 346 So.2d 98 (Fla. 3d DCA 1977) it was held that a trial court was not bound by an agreement originally made to limit appellant’s sentence to a term certain upon violation of a specific condition of probation, because later, when the defendant was found in violation of the specific condition, the trial court did not revoke his probation but rather continued his probation. Later, when probation was revoked, the trial court sentenced the defendant to a term in excess of the original agreement. The Third District held that the original agreement had become “inoperative” by reason of the trial court’s order continuing the defendant on probation despite an established violation.

We believe the trial court acted well within its authority under the circumstances presented here. Appellant’s agreement specifically contemplated a term of probation. When probation is imposed, the potential consequences of a violation of probation are an implicit part of the arrangement. Here the appellant was specifically advised that the trial court had authority to sentence him to a total of five years imprisonment possibly in the form of a one year sentence forthwith, and another four years should he violate his probation. Hence, his later sentence of five years with credit for time served was not in violation of the agreement approved.by the court.

At the time of the first sentencing hearing, under the agreement involved herein, the trial court could not have sentenced appellant to any more than one year in prison. However, the trial court was free to place the appellant on probation for any period within the maximum term provided. The appellant cannot now complain because he then received less jail time than originally contemplated. The trial court expressly complied with the plea agreement by imposing only 100 days jail time, substantially less than one year, as a condition of probation. The trial court in fact displayed more leniency toward appellant than was required under the terms of the agreement.

In accordance with the above, we find no violation by the trial court of the terms of the plea agreement. Accordingly, the judgment of conviction and sentence of appellant are hereby affirmed.

LETTS and GLICKSTEIN, JJ., concur.

      . Fla.R.Crim.P, 3.172(c)(i) and (vii).


author: HOBSON, Judge.

text:
    Patrick J. FEARICK, Appellant, v. The SMUGGLERS COVE, INC., a Dissolved Florida Corporation, et al., Appellees.
    No. 79-113.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1980.

      H. Stephen Frank, Fort Myers, for appellant.
    Robert P. Rosin of Rosin, Abel, Band, Rosin & Brown, Sarasota, for appellees.
    C. Michael Jackson of Stewart, Stewart, Jackson & Keyes, Fort Myers, for appellees, Parsons, Wood and Shapiro.
    Steven L. Studybaker, Cape Coral, for appellees, Outer Island Development of Florida, Inc., and Robert Hollopeter.
   HOBSON, Judge.

Appellant, a licensed real estate broker, appeals the dismissal with prejudice of his fourth amended complaint. In five counts, he sought to recover a brokerage commission for services allegedly performed in connection with the sale of certain property owned by Smugglers Cove, Inc.

The factual allegations in appellant’s complaint state that he and Bauer, the president of Smugglers Cove, orally entered into an exclusive listing agreement in August of 1973 for the sale of property owned by the corporation. The sale price was set at $925,000, with the purchaser to assume a $200,000 mortgage, and appellant was to receive a 6% commission if he procured a ready, willing and able purchaser. Thereafter, appellant undertook certain steps to advertise and sell the property, including placing signs on the property.

Although the purchase price had twice been reduced, the property remained unsold as of early February, 1976, resulting in a further reduction to $750,000. Thereafter, appellant contacted Hollopeter, president of Outer Island Development of Florida, Inc., which was in the process of developing a tract of land adjacent to the property. Hol-lopeter was informed that appellant was the exclusive broker and of the terms and conditions of the sale. After appellant had had several meetings with Hollopeter and had informed Bauer that a potential purchaser had been located, Bauer contacted another broker and offered him $4,000 if he would arrange an introduction with Hollo-peter and if a sale resulted. Thereafter, Hollopeter told appellant that he was no longer interested in purchasing the property.

On July 1, 1976, the shareholders of Smugglers Cove consented to dissolution of the corporation, pursuant to Section 607.-254, Florida Statutes (1975), and executed articles of dissolution pursuant to Section 607.267. After the filing of the articles of dissolution, a quit-claim deed was executed on July 7, 1976, transferring the subject property to the shareholders of the corporation. The property was then sold to Outer Island for $650,000. Appellant alleges that he demanded payment of his commission, but received only $2,500 for his services.

Appellant filed a complaint against appel-lee in February, 1977; the fourth amended complaint was filed in September, 1978, and dismissed with prejudice in January, 1979. Count I of the complaint is an action against Smugglers Cove for the real estate commission; Count II is against Bauer individually for entering into an unauthorized contract on behalf of the corporation; Count III is a claim against Bauer and Erb as trustees for payment of corporate debts in their capacity as directors; Count IV is an action against the shareholders of Smugglers Cove for the real estate commission; and Count V is an action against Hollopeter for tortious interference with the contract for the real estate brokerage commission.

We agree with the trial judge’s dismissal of Counts II, and IV; however, we find that there was error in his dismissal of Counts I, III and V.

The question presented is essentially a question of pleading, /. e., whether the appellant’s fourth amended complaint states causes of action against the defendants; “whether, in other words, if the allegations of the amended complaint were proved, the defendant[s] would be liable to the [plaintiff] for damages.” Wiley v. Dow, 107 So.2d 166, 168 (Fla. 1st DCA 1958). See also Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956). In testing a complaint on a motion to dismiss, all facts properly pleaded are deemed admitted. On an appeal from a final judgment dismissing the complaint, it is irrelevant whether or not the appellant would have been able to present sufficient evidence to prevail on the merits. Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); Connelly v. Merritt, 273 So.2d 7 (Fla. 1st DCA 1973).

Count I of appellant’s fourth amended complaint alleges facts which, if proven, will entitle him to his brokerage commission from Smugglers Cove, Inc. The parties had orally entered into an exclusive listing (agency to sell) agreement. Under such an agreement, the owner retains the right to sell the property independently of the broker. However, if the sale is to a ready, willing and able purchaser procured by the broker, the owner is liable for the broker’s commission. Nicholas v. Bursley, 119 So.2d 722 (Fla. 2d DCA 1960).

Whether a broker is a procuring cause is a question of fact to be determined from the surrounding circumstances. Wilkins v. Tilton Real Estate & Ins., Inc., 257 So.2d 573 (Fla. 4th DCA 1971); National Airlines, Inc. v. Dooly Associates, Inc., 160 So.2d 53 (Fla. 3d DCA 1964). Generally, to be the procuring cause of a sale, “a broker must show that he called the potential purchaser’s attention to the property and that it was through his efforts that the sale . was consummated.” B & B Super Markets, Inc. v. Metz, 260 So.2d 529, 531 (Fla. 2d DCA 1972). If the broker locates a purchaser, inaugurates negotiations with him, and so informs the seller, he is the procuring cause and is entitled to his commission even though the seller interrupts the negotiations and sells to the purchaser at a price lower than the one which the broker was authorized to accept. Estes v. Moylan, 94 So.2d 362, 365 (Fla.1957); Taylor v. Dorsey, 155 Fla. 305, 19 So.2d 876 (1944); 7 Fla. Jur.2d, Brokers §§ 92, 99.

A broker was found to be the procuring cause in a case factually similar to the instant case. Realty Marts, Inc. v. Barlow, 312 So.2d 544 (Fla. 1st DCA 1975); Realty Marts, Inc. v. Barlow, 348 So.2d 63 (Fla. 1st DCA 1977). There, as here, the broker found a customer who was ready, willing and able to purchase and showed him the property. The customer rejected a sales contract submitted by the broker and initiated negotiations directly with the seller. Finding that the broker had done all that was required under an oral open listing agreement, and was, therefore, the procuring cause, the court held that “an owner is liable for a commission where, with the knowledge of pending negotiations between the broker and the purchaser, the owner completes the sale of which the broker is the procuring cause. (12 C.J.S. Brokers § 93 b.)” 348 So.2d at 64.

Count III also states a cause of action against Bauer and Erb, who were the directors at the time of dissolution of Smugglers Cove, in their capacity as trustees for property owned by the dissolved corporation. See Sections 607.144, 607.297 and 607.301, Florida Statutes (1975). The allegations of Count III are sufficient to support the theory that the sale to Outer Island was contemplated when the corporation was dissolved, and that the directors could have reasonably anticipated that appellant would be making a claim for his commission. Cf. Neville v. Leamington Hotel Corp., 47 So.2d 8 (Fla.1950), construing a prior statute to permit suit against the dissolving directors within the three-year prolongation period.

Finally, the facts alleged in Count V also state a cause of action against the purchaser for the tortious interference with the contract between the broker and seller. The elements of this tort are threefold: the existence of a business relationship under which the plaintiff has legal rights; an intentional and unjustified interference with that relationship by the defendant; and damage to the plaintiff as a result of the breach of the business relationship. Azar v. Lehigh Corp., 364 So.2d 860 (Fla. 2d DCA 1978), citing Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (Fla. 4th DCA 1971).

The business relationship need not be founded on an enforceable contract. Franklin v. Brown, 159 So.2d 893 (Fla. 1st DCA 1964). A business relationship may be established if a commission was discussed by the broker and seller and the latter was aware that the broker was rendering services on his behalf. Mead Corp. v. Mason, 191 So.2d 592 (Fla. 3d DCA 1966). Such a relationship was alleged to have existed here.

The purchaser was informed by the broker that he had an exclusive listing with the seller. Nonetheless, the purchaser broke off negotiations with the broker and dealt directly with the seller after an introduction by another broker. This would supply the element of intent. Sutton v. Stewart, 358 So.2d 119 (Fla. 1st DCA 1978). There is no doubt that the broker suffered damage as a result of the purchaser’s conduct.

For the foregoing reasons, we find that the trial judge erred in dismissing Counts I, III and V of appellant’s fourth amended complaint. Accordingly, we reverse and remand with directions that those counts be reinstated.

GRIMES, C. J., and OTT, J., concur.

      . Such agreements need not be in writing. Kerdyk v. Hammock Oaks Estates, Inc., 342 So.2d 833 (Fla. 3d DCA 1977); Realty Marts, Inc. v. Barlow, 312 So.2d 544 (Fla. 1st DCA 1975).

      . The fact that the broker has a cause of action against the seller does not deprive him of a cause of action against the purchaser if the latter helped induce the breach. Mead Corp. v. Mason, 191 So.2d 592 (Fla. 3d DCA 1966); Oro Verde Groves, Inc. v. Fuchs, 136 So.2d 12 (Fla. 3d DCA 1962); Pokress v. Southern Hotel Corp., 42 So.2d 166 (Fla.1949).


author: PER CURIAM. BOOTH, Judge,

text:
    RAULERSON & SONS, INC. and Florida Farm Bureau Insurance Company, Appellants, v. Gilbert G. DAVIS, Appellee.
    No. QQ-413.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1980.
    John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Miami, for appellants.
    Ted L. Wells, Tampa, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and ERVIN, J., concur.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.