author: HERSEY, Judge. PER CURIAM.

text:
    Jim F. LOPEZ, Appellant, v. LIFE INSURANCE COMPANY OF AMERICA, Appellee.
    No. 80-1808.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 30, 1981.

      Tomberg & Tomberg, P. A., Boynton Beach, and Thomas A. Hoadley of Hoadley & Gavigan, P. A., West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellee.
   HERSEY, Judge.

Jim F. Lopez appeals from an order dismissing his complaint with prejudice. Because of the unique circumstances involved in this case and the novelty of the legal issues raised, we set forth the complaint here in its entirety.

1. This is an action for damages in excess of Two Thousand Five Hundred ($2,500.00) Dollars.
2. At all times material hereto the Plaintiff was a resident of Palm Beach County, Florida; further at all times material hereto the Defendant was and is a foreign corporation, authorized and doing business in the State of Florida.
3. Between the years 1974 and 1977, the exact dates of which are unknown to Plaintiff but known to Defendant, the wife of the Plaintiff, to-wit: Gladys M. Lopez, contracted for life insurance coverage on her husband’s life with the Defendant for policies containing double indemnity clauses in the following amounts:
(a) Policy No. 1369397, face value $55,-000.00, double indemnity for accidental death;
(b) Policy No. 1499005, face value $50,-000.00, double indemnity for accidental death;
(c) Policy No. 1214017, face value $20,-000.00, double indemnity for accidental death; and
(d) Policy No. 1218774, face value $5,000.00, double indemnity for accidental death.
Therefore, the above policies had a face value of $130,000.00, but for an accidental death of the Plaintiff, the beneficiary, Gladys M. Lopez, would obtain the sum of $260,000.00. Gladys M. Lopez obtained the signature of her husband, the Plaintiff, on various applications by stating that she was obtaining accidental health insurance for him in case he would become injured, and the Plaintiff had no idea or suspicion that he was applying for life insurance.
4. At this time, the family net worth was zero and his income as a chef was approximately $9,000.00. The monthly premiums on the above life insurance policies amounted to about $622.00.
5. Several months prior to May 2, 1977, Mr. Lopez, the Plaintiff, overheard his wife and her brother-in-law plotting to kill him and he immediately called his insurance agent, who was an agent for the Defendant and reported overhearing a discussion about his death to collect the Life of Georgia life insurance and requested that any life insurance he might have had be cancelled.
6. The defendant negligently did not investigate these complaints and negligently failed to cancel the life insurance on the life of the Plaintiff.
7. On May 2, 1977, the Plaintiff was kidnapped by his wife, Mrs. Lopez, and her brother, James Miller, along with William R. Meloy and Henry A. Walters. These abductors took the Plaintiff in the back of the truck to near 20 mile bend and they bound his hands, forced whisky down his throat and were about to drown him when a deputy sheriff discovered him and rescued him prior to his death.
8. The defendant was negligent in writing an excessive amount of whole life insurance coverage plus double indemnity on the life of JIM F. LOPEZ considering the income of the family.
9. The Defendant did not make a proper investigation into the background and income of the Lopez family to determine whether or not they were financially able to carry such an excessive amount of insurance coverage and if they had exercised a reasonable caution in such an investigation, they would have learned that the premiums almost equalled the income of the family, which in turn should have made the Defendant suspicious that this excessive life insurance was done for the express purpose of killing Mr. Lopez and collecting his life insurance.
10. The Defendant further was negligent in failing to take any action to investigate the warning of the Plaintiff that the beneficiary of these policies was entering into a conspiracy to take his life to collect his insurance.
11. As a result of the attempt on his life on May 2, 1977, the Plaintiff was injured, necessitating medical expenses and a permanent injury.
12. Defendant’s conduct as aforede-scribed, was fraudulent, oppressive, malicious, and outrageous towards Plaintiff, with conscious disregard of Plaintiff’s safety and with the intention of benefiting Defendant financially and done with the intent of causing, or with willful disregard to the probability of causing, severe physical and emotional distress to Plaintiff.
13. The aforesaid acts of the Defendant did, in fact, cause Plaintiff to suffer great mental anguish, upset and harm.
14. As a direct and proximate result of the aforementioned acts of Defendant, Plaintiff became upset and nervous and disturbed in body and in mind. Plaintiff has also suffered great mental and physical anguish, all to their damage in excess of compensatory damages of Twenty Five Hundred ($2500.00) Dollars, plus punitive damages in excess of One Million ($1,000,-000.00) Dollars.
WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of Two Thousand Five Hundred ($2,500.00) Dollars, together with punitive damages in an amount on [sic] One Million ($1,000,000.00) Dollars, plus costs, interest and attorneys’ fees, and further, Plaintiff demands a trial by jury.

Before attempting to assess the actiona-bility vel non of the alleged acts and omissions of appellee, insurer, it seems appropriate to orient the issues within the applicable procedural law. In doing so, we dispose of several arguments advanced by appellee in support of its position.

A motion to dismiss for failure to state a cause of action is addressed solely to the allegations of the complaint. Geer v. Bennett, 237 So.2d 311 (Fla. 4th DCA 1970). Those allegations well pleaded must be taken as true for purposes of determining whether the motion should be granted. Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla.1973). The sole question to be determined by the trial court is whether or not the complaint states a cause of action. Rice v. White, 147 So.2d 204 (Fla. 1st DCA 1962). This is a question of law. Geer v. Bennett, supra.

The insurance company argues first that appellant’s wife had an insurable interest, that appellant consented to issuance of the insurance and that, consequently, it cannot be liable under these circumstances. The complaint, on the other hand, alleges in pertinent part: “the Plaintiff [Appellant/insured] had no idea or suspicion that he was applying for life insurance.” Whether appellant knowingly executed applications for life insurance, as suggested by appellee, or was misled by his wife to believe that he was applying for accidental medical health insurance, as suggested by the complaint, is a factual issue not properly before the court for determination on a motion to dismiss. For purposes of this appeal we are bound to assume that the insured was misled and that there was no consent to issuance of insurance on his life.

Appellee next argues that the intervening criminal act involved here was not foreseeable, “especially . . . when the insurer has used reasonable care in issuing the policy.” Reserving discussion of foreseeability for the present, we point out again that a factual determination is called for and assumed by appellee’s reliance on due care. The allegations of the complaint could, under no interpretation, be said to establish as a matter of law that the insurer proceeded with reasonable care under the circumstances.

We are thus led inexorably to the crucial issue involved in this appeal: whether the insurer owed a duty of care to the insured and whether that duty was breached to the damage of the insured. The presence and complexity of collateral issues will appear from our subsequent discussion of the central and determinative question.

The complaint alleges breaches of several duties. We find it necessary to examine only one.

Florida law requires that an individual contracting for insurance on the life of another have an insurable interest. § 627.-404 Fla.Stat. (1979). The obvious purpose of that requirement is to prevent so-called “wagering” contracts. It is assumed that the existence of such an insurable interest will counterbalance any temptation that might otherwise exist for a beneficiary to murder the insured for the insurance proceeds. That assumption may be ill-founded, however, if the amount of the proceeds vastly exceeds the value of the insurable interest. We find neither statute nor case law in Florida addressing the question of whether consent of the insured is a prerequisite to the obtaining of insurance by another having an insurable interest in the insured’s life. In view of the paramount interest of the insured in the continuance of his own life it would appear that obtaining his consent before issuing a policy that might well constitute a motive for murder would not be an unreasonable requirement. At least one jurisdiction has imposed such a condition precedent.

In Ramey v. Carolina Life Insurance Co., 244 S.C. 16, 135 S.E.2d 362 (1964), an insured sued an insurer for injuries sustained when his wife attempted to murder him by arsenic poisoning. The insurer had issued a life insurance policy, without the insured’s knowledge or consent, naming the insured’s wife as beneficiary. The wife had forged the insured’s name on the application and such forgery was known to the insurer. In holding that the insured could maintain a cause of action for negligent issuance of the policy, the court stated that an insurer has a duty to use reasonable care not to issue a policy of life insurance in favor of a beneficiary who has obtained such policy without the knowledge or consent of the insured, regardless of the presence of an insurable interest. We expressly approve the rule enunciated in Ramey.

Thus, appellee had a duty, at the time application was made for insurance of appellant’s life, to use due care that such application was being made with the knowledge and consent of the insured. We take the term “knowledge and consent” to mean an informed consent by one who understands the nature of the entire transaction. Thus such factors as forged applications, signatures obtained under false pretenses and the like, become questions of fact to be determined at the appropriate stage of the litigation. At least in the present case the allegations of the complaint do not invite disposal of the issue on motion to dismiss.

Concluding this aspect of our examination of the issue we hold that an insurer has a duty to its insured not to issue a life insurance policy, even to one having an insurable interest, without the knowledge and consent of the insured.

Assuming, arguendo, that no breach of duty occurred at the time the life insurance policy was originally applied for and issued, there remains the issue raised by the allegation of a subsequent breach of that same duty.

A life insurance policy is void ab initio if it is shown that the beneficiary procured the policy with an intention to murder the insured. New England Mutual Life Ins. Co. v. Null, 605 F.2d 421 (8th Cir. 1979). Thus an insurer has the right to claim that a policy so procured is unenforceable, thereby avoiding payment of benefits. The logical correlative duty imposed on an insurer, if it later learns of the illegal purpose of the insurance contract, requires that the contract be immediately cancelled as being void and unenforceable so as not to be unjustly enriched by future premium payments and, more importantly, so as not to endanger the life of the insured.

Such circumstances are alleged in the complaint here. The finder of fact may ultimately determine that the insurer did not breach its duty in this regard because it took certain actions or because it could not legally cancel the policy on these facts or on some other basis, but these are not questions properly before the court on the motion to dismiss.

Appellee takes the position that even if the insurer has the duty we have discussed at length, the criminal actions which damaged appellant do not give rise to a cause of action against appellee for two reasons.

First, appellee contends that the intervening criminal act breaks the chain of causation between the original actor’s negligence and the resulting injury. This is seen as a function of foreseeability which, in turn, relates directly to proximate cause. Thus, if the criminal act of attempted murder was reasonably foreseeable as a consequence of issuance of the policy on appellant’s life without his knowledge and consent, then issuance of the policy was a proximate cause of appellant’s peril and consequent damages. The insurance company insists that the intervening criminal act was not reasonably foreseeable. Our previous discussion of policy and the allegations of the complaint would indicate to the contrary. Be that as it may, however, foreseeability is a question for the finder of fact not appropriately disposed of by motion to dismiss unless the allegations themselves are deficient in stating the cause of action. Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980).

Second, appellee relies on Claycomb v. Eichles, 399 So.2d 1050 (Fla. 2d DCA 1981) for the proposition that damages may not be recovered for mental anguish or physical injury resulting from emotional stress which is caused by negligence where there is no physical impact. We neither subscribe to nor repudiate that proposition here. We simply refer again to the complaint which alleges that appellant was tied up in the back of a truck while whiskey was poured down his throat. Either or both of those occurrences constitute a sufficient “physical impact” to sustain the complaint against attack on this basis.

Accordingly, we reverse the order which dismissed appellant’s complaint with prejudice and remand this cause for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

LETTS, C. J., and MOORE, J., concur.

ON REHEARING

PER CURIAM.

We adhere to our original opinion but certify to the supreme court the following question as one of great public interest:

Whether an insurer issuing a life insurance policy can be liable in tort to the insured where the policy beneficiary attempts to murder the insured in order to collect the policy benefits?

We pose the question in the language requested by counsel recognizing that it is overbroad, but confident that the language of our original opinion will bring it into appropriate focus.

LETTS, C. J., HERSEY and DELL, JJ., concur.


source: Caselaw Access Project

author: SHARP, Judge.

license: Public Domain

text:
    Clifford R. KUEHNER, Appellant, v. Henry Michael GREEN, individually, and the Aetna Casualty & Surety Company, a Connecticut corporation, Appellees.
    No. 80-546.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 17, 1981.
    Wooten, Honeywell, Rest & Martinez, Orlando, and L. Edward McClellan, Jr., of Pattillo, McKay & McKever, P. A., Ocala, for appellant.
    John G. Rooney, Rockledge, for appellees.
   SHARP, Judge.

Kuehner appeals from a final judgment denying him any recovery from Green, his karate “sparring” partner, for injuries Kuehner sustained when he fell as a result of a “leg sweep” performed by Green during a practice session. The case was tried before a jury which found Kuehner and Green both 50% responsible for the injuries. It also answered in the affirmative a special interrogatory establishing the defense of express assumption of risk. On the basis of Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), the trial court entered a final judgment for Green. We affirm, but certify the issue of whether or not Green’s defense of assumption of risk absolutely bars Keuh-ner’s recovery.

In Blackburn v. Dorta, the Florida Supreme Court ruled that the defense of “implied” assumption of risk, like contributory negligence, would no longer completely bar a plaintiff’s recovery in tort on the new litigation field of comparative negligence. However, with regard to “express” assumption of risk, the court refused to express any opinion:

It should be pointed out that we are not here concerned with express assumption of risk which is a contractual concept outside the purview of this inquiry, and upon which we express no opinion. . . . Included within the definition of express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the covenan-tee’s negligence as well as situations in which actual consent exists, such as where one voluntarily participates in a contact sport.

348 So.2d at 290. On the basis of this dicta, we have held that express assumption of risk remains an absolute bar to recovery. Strickland v. Roberts, 382 So.2d 1338 (Fla. 5th DCA 1980).

Kuehner argues that the jury’s finding that he was aware of the danger of “leg sweeps” in karate practice and that he voluntarily assumed the risks of injury resulting therefrom is not supported by the evidence. We have reviewed the record, and find there is conflicting testimony as to whether “leg sweeps” should be done on concrete floors, as occurred here, and whether Kuehner realized Green might “sweep” him without catching him, in the practice session. The conflict was resolved against Kuehner by the jury and we cannot interfere with its conclusion. This finding, for purposes of this case, established Green’s defense of express assumption of risk. See Bartholf v. Baker, 71 So.2d 480 (Fla.1954); Alexander v. 50th St. Heights Co., 324 So.2d 161 (Fla. 3d DCA 1976). Further, the testimony did not indicate that Green willfully or deliberately harmed Kuehner, or that the leg sweep was performed in violation of recognized or formal karate rules designed to protect the participants.

Accordingly, we affirm the lower court, but certify the following question to the Florida Supreme Court, pursuant to Article V, Section 3(b)(4), Florida Constitution as a matter of great public importance:

DOES EXPRESS ASSUMPTION OF RISK ABSOLUTELY BAR A PLAINTIFF’S RECOVERY WHERE HE ENGAGES IN A CONTACT SPORT WITH ANOTHER PARTICIPANT WHO INJURES HIM WITHOUT DELIBERATE ATTEMPT TO INJURE?

AFFIRMED and QUESTION CERTIFIED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Green caught Kuehner’s right foot in mid-air and swept Kuehner’s left leg from under him, causing Kuehner to fall backwards.

      . The jury answered a special interrogatory that Kuehner did “know of the existence of the danger complained of, realize and appreciate the possibility of injury as a result of such danger; and, having a reasonable opportunity to avoid it, voluntarily and deliberately exposed himself to the danger complained of.”

      . Williston v. Cribbs, 82 So.2d 150 (Fla.1955); Keith v. Amrep Corp., 312 So.2d 234 (Fla. 1st DCA 1975).

        .See McAdams v. Windham, 208 Ala. 492, 94 So. 742 (1922); Tavernier v. Maes, 242 Cal.App.2d 532, 51 Cal.Rptr. 575 (1966); Nabozny v. Barnhill, 31 Ill.App.3d 212, 334 N.E.2d 258 (1975); Griggas v. Clauson, 6 Ill.App.2d 412, 128 N.E.2d 363 (1955); Bourque v. Duplechin, 331 So.2d 40 (La.App.), cert. denied, 334 So.2d 210 (La.1976); Averill v. Luttrell, 44 Tenn.App. 56, 311 S.W.2d 812 (1957); Restatement (Second) of Torts § 496B, Comments a, d (1965).


author: GRIMES, Judge.

text:
    Gary Lynn DEAN and Tommy Dean, Appellants, v. STATE of Florida, Appellee.
    No. 81-186.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1981.
    Rehearing Denied Dec. 8, 1981.

      Ernest M. Jones, Jr., of Jacobs, Valentine, Groseclose & Miller, P. A., Lakeland, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from convictions for possession of marijuana. Gary Dean challenges the trial court’s failure to suppress the marijuana while Tommy Dean questions the sufficiency of the evidence.

Officer Reaume of the Lakeland Police Department was monitoring events in the parking lot at the Lakeland Civic Center during a rock concert. Through his binoculars, he saw three men leave the building about half way through the concert and get into an automobile. He observed the two in the front seat begin fumbling on the floorboard for a minute or so and then saw what appeared to be a cigarette lit and passed among the occupants. He suspected that the cigarette was marijuana, and so he called a backup unit. He then saw the driver go to the trunk of the car, open it and place a brown shopping bag inside it. Thinking that the bag contained marijuana and fearing that the suspects were about to depart, he approached the vehicle and ordered the occupants to keep their hands in plain view. He caught the three men by surprise, but he did not observe any marijuana inside the vehicle. However, he did detect the odor of burning marijuana coming from the front passenger’s window.

Believing that the smell of the marijuana smoke gave him probable cause to search the vehicle, Officer Reaume obtained the car keys from the driver and unlocked the trunk where he saw a closed brown paper bag. He opened the bag and saw what he suspected were nine baggies of marijuana and two unsmoked marijuana cigarettes. He and another officer who had recently arrived at the scene then arrested the three men. The driver of the automobile was identified as Gary Dean and the person in the back seat was identified as Tommy Dean.

Subsequently, the state filed informations against both Gary and Tommy Dean charging them with possession of more than twenty grams of marijuana. They both filed motions to suppress the marijuana. The court initially ruled that only Gary Dean had standing to challenge the legality of the search of the automobile, and it eventually denied the motion to suppress as to both of the Deans. After trial, a jury found Gary Dean guilty of possession of more than twenty grams of marijuana. The court withheld adjudication and placed him on three years probation with the condition that he spend one year in county jail. The jury found Tommy Dean guilty of the lesser included offense of possession of not more than twenty grams of marijuana, and the court sentenced him to one year in county jail.

We will consider first the questions concerning the legality of the search and seizure of the paper bag containing marijuana. As a preliminary matter, the state challenges the standing of both of the Deans to contest the validity of the search and seizure. At oral argument, Tommy Dean conceded that he did not have standing, and thus we need not further consider the correctness of the court’s order denying his motion to suppress. We think, however, that Gary Dean did have standing. The test for standing is whether the defendant had a legitimate expectation of privacy in the area searched. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); State v. Hutchinson, 404 So.2d 361 (Fla.2d DCA 1981). Here, Gary Dean clearly had a legitimate expectation of privacy in the trunk of the automobile. Although the car belonged to his father, he had the use of it with his father’s permission. In fact, he drove his father’s car most of the time because his own vehicle was disabled. Moreover, he was the only one present who had a set of keys to the car, and there was no evidence that he had allowed anyone else to use the trunk.

Gary Dean does not argue that the police had no probable cause to search the automobile. He simply contends that they could not open the closed paper bag in the trunk without first obtaining a search warrant. It is true that the “automobile exception” to the warrant requirement of fourth amendment jurisprudence allows police officers to search a vehicle without a warrant when they have probable cause. However, that search may not extend to any closed opaque containers not otherwise identifiable as contraband which are found within the trunk of the vehicle until such time as the officers have obtained a search warrant. Robbins v. California, - U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981). Thus, Officer Reaume did not have the right to search the closed paper bag into which he could not see without first obtaining a warrant.

We will next consider Tommy Dean’s arguments concerning the sufficiency of the evidence. He contends that the state did not produce sufficient evidence upon which to convict him of possessing the marijuana in the paper bag. We agree. Possession of a controlled substance where the defendant is not in actual physical possession of the substance may be proved by showing constructive possession. However, constructive possession exists only when the defendant knows of the presence of the controlled substance and has the ability to maintain control over it or reduce it to his possession. Spataro v. State, 179 So.2d 873 (Fla.2d DCA 1965). Where there is joint possession of the premises on which the controlled substance is found, the accused’s knowledge of the presence of the substance on the premises and his ability to maintain control over it must be established by proof and may not be inferred. Hall v. State, 382 So.2d 742 (Fla.2d DCA 1980); Taylor v. State, 319 So.2d 114 (Fla.2d DCA 1975). Under these standards, the state did not prove that Tommy Dean had possession of the marijuana in the paper bag. None of the evidence presented by the state showed .that he had the ability to control the bag or even know what it contained. In addition, there was no evidence that he had access to the trunk of the car once his brother placed the bag there.

Although Tommy Dean could not be convicted of possessing the marijuana found in the trunk, we affirm his conviction for misdemeanor possession of marijuana. Officer Reaume had substantial experience in narcotics investigation and was trained to recognize marijuana. His testimony that he saw all three occupants of the car smoking a cigarette in a manner commonly used in smoking marijuana coupled with his statement that he smelled a strong odor of marijuana smoke coming from the car immediately thereafter provided sufficient evidence for the jury to find, as it did find, that Tommy Dean had possessed not more than twenty grams of marijuana. The introduction of the contraband or the production of a chemical analysis is not always essential to a conviction for possession of a controlled substance. State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA, 1981). See Sommers v. State, 404 So.2d 366 (Fla.2d DCA 1981).

What then should be the disposition of the case against Gary Dean? The only rational explanation for the verdict against Tommy Dean is that the jury concluded that he did not have constructive possession of the bag of marijuana but that he was guilty of misdemeanor possession because he smoked a marijuana cigarette. Yet, if Tommy was guilty of misdemeanor possession of marijuana for smoking the cigarette, Gary was equally guilty because he smoked the same cigarette. When the evidence does not prove the offense of which the defendant was convicted but does establish his guilt of a lesser included offense, an appellate court should enter judgment for the lesser offense. § 924.34, Fla.Stat. (1979). Gary’s felony conviction cannot stand since the search of the paper bag should have been suppressed, but the evidence supports a conviction for possession of a misdemeanor quantity of marijuana. Blair v. State, 384 So.2d 685 (Fla. 4th DCA 1980).

We affirm the conviction of Tommy Dean. We reverse the conviction of Gary Dean but remand the case to the trial court with directions that it reduce the judgment against him to possession of not more than twenty grams of marijuana and enter an appropriate sentence upon that judgment.

SCHEB, C. J., and SCHOONOVER, J., concur.


author: DANIEL S. PEARSON, Judge.

text:
    AGB OIL COMPANY, a Florida General Partnership between Guy B. Bailey and Areca S. Bailey, Guy B. Bailey and Areca S. Bailey, Appellants, v. CRYSTAL EXPLORATION AND PRODUCTION COMPANY, a Florida Corporation, Appellee.
    No. 80-2451.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 1981.
    Rehearing Denied Dec. 18, 1981.

      Bailey & Dawes and Jesse C. Jones, Miami, for appellants.
    Steel, Hector & Davis and William L. Courshon, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1974, AGB Oil Company and Crystal Exploration and Production Company entered into a Colorado limited partnership (Caloosa 1974) in which AGB would be a limited partner and Crystal the general partner. As part of this agreement, AGB retained The David Gracer Company, Inc. as its consultant. Gracer’s fees were to be paid out of AGB moneys being held by Caloosa. In 1976, in the United States District Court for New Jersey, Gracer sued Caloosa for fees allegedly due it. Caloosa, acting by its general partner Crystal, brought a third-party complaint against AGB, seeking an adjudication that any sum due Gracer would be paid solely out of property of AGB then or thereafter in the hands of Crystal. A default judgment was entered in favor of Crystal against AGB. Thereafter, Crystal settled the suit with Gracer and consented to the entry of a judgment against it in the amount of $260,-000, which, of course, meant that that sum would be paid out of AGB’s property. AGB moved to set aside the default judgment under Federal Rule of Civil Procedure 60(b). Its motion was denied and the United States Court of Appeals, Third Circuit, affirmed the denial without opinion.

Three years later, AGB sued Crystal in the Dade County Circuit Court. The trial court dismissed with prejudice one count of AGB’s multi-count complaint on the grounds that the claim stated therein was barred by res judicata. This appeal is taken from that dismissal.

The count in question essentially alleges the history of the Federal Court action and, pertinent here, says that Crystal, by consenting to the entry of a default judgment, (a) violated a controlling provision of the Colorado Limited Partnership Act, which prohibits a general partner from consenting to a judgment against the limited partnership without the written consent of the limited partner, and (b) willfully interfered with AGB’s efforts to settle the Gracer claim, presumably under more beneficial terms than the ultimate settlement agreed to by Crystal. We affirm the dismissal of this count.

Rule 60(b) of the Federal Rules of Civil Procedure, under which AGB sought to set aside the Federal Court default judgment, authorizes relief from a final judgment, order or proceeding on, inter alia, the following grounds:

“(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
“(6) any other reason justifying relief from the operation of the judgment.” (emphasis supplied).

AGB’s allegations in the court below that Crystal breached its fiduciary duties in consenting to the entry of judgment constitute not only “other misconduct of an adverse party,” an available basis for relief from a judgment under Rule 60(b)(3), but also constitute “any other reason justifying relief from the operation of the judgment,” an available basis for relief under Rule 60(b)(6). Thus, AGB’s present claim that Crystal breached its fiduciary duties could have been raised as grounds for relief under Federal Rule of Civil Procedure 60(b) in the Gracer lawsuit.

The law is well settled that when a fact, an issue, or a cause of action has been decided by a court of competent jurisdiction, neither of the parties involved shall be allowed to call into question and relitigate the thing decided, so long as the judgment or decree stands unreversed. Gordon v. Gordon, 59 So.2d 40 (Fla.1952); Simco Operating Corporation v. City National Bank of Miami Beach, 341 So.2d 232 (Fla.3d DCA 1977). This principle of res judicata applies as well to default judgments, Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926), and to issues raised as a defense, Butler v. Richard Bertram & Co., 281 So.2d 227 (Fla.Sd DCA 1973).

More important for present purposes is that res judicata applies to matters raised by motion. See Castro Convertible Corporation v. Castro, 596 F.2d 123, aff’d on rehearing, 600 F.2d 545 (5th Cir. 1979) (motion to intervene); see also Brotherhood of Locomotive Firemen and Engineermen v. Seaboard Coast Line Railroad Co., 413 F.2d 19 (5th Cir.), cert. denied, 396 U.S. 963, 90 S.Ct. 432, 24 L.Ed.2d 426 (1969); Hann v. Carson, 462 F.Supp. 854 (M.D.Fla.1978); Volkswagen Insurance Company v. Taylor, 201 So.2d 624 (Fla. 1st DCA 1967) (motions for summary judgment); Malicoat v. LaChappelle, 390 So.2d 481 (Fla. 4th DCA 1980) (order denying motion to set aside default judgment is res judicata and bars subsequent motion to set aside the default and to vacate the final judgment brought on virtually the same grounds as the original motion). See also Sottile v. Gaines Construction Company, 281 So.2d 558 (Fla.3d DCA 1973).

In the present case, the issue of breach of fiduciary duty could have been raised by AGB, if, indeed, it was not, as a ground for its motion to set aside the default judgment entered against it in the Federal Court. Although the question has never been directly addressed in Florida, courts elsewhere have consistently held that issues determined on a motion to set aside a default judgment or to vacate a final judgment are res judicata. See, e.g., American Surety Company v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231 (1932); Sabin v. Home Owners’ Loan Corporation, 151 F.2d 541 (10th Cir. 1945), cert. denied, 328 U.S. 840, 66 S.Ct. 1011, 90 L.Ed. 1615 (1946); Kithcart v. Metropolitan Life Insurance Co., 119 F.2d 497 (8th Cir. 1941), cert. denied sub nom., United States ex rel. Kithcart v. Gardner, 315 U.S. 808, 62 S.Ct. 793, 86 L.Ed. 1207 (1942); Reeves v. Hutson, 144 Cal.App.2d 445, 301 P.2d 264 (1956); Kamp Implement Co. v. Amsterdam Lumber, Inc., 166 Mont. 435, 533 P.2d 1072 (1975); Wilson-Harris v. Southwest Telephone Co., 193 Okl. 194, 141 P.2d 986 (1943); Brett v. Fielder, 136 Okl. 222, 277 P. 216 (1929); Spokane Merchants Association v. First National Bank of Coleville, 86 Wash. 367, 150 P. 434 (1915). See also Iacaponi v. New Amsterdam Casualty Co., 258 F.Supp. 880 (W.D.Pa.1966); Joe Walsh Advertising, Inc. v. Phillips Tire and Supply Company, 498 P.2d 1391 (Okl.1972). Since the doctrine of res judicata applies not only to issues raised and decided, but also to every matter which might have been raised, Gordon v. Gordon, supra; Hay v. Salisbury, supra; Wise v. Tucker, 399 So.2d 500 (Fla. 4th DCA 1981); Floyd v. Roberts, 331 Mich. 687, 50 N.W.2d 184 (1951), AGB is barred by the doctrine from relitigating the matters contained in the dismissed count of its complaint.

It otherwise appearing that the allegations on the face of the disputed count of AGB’s complaint demonstrate the existence of the necessary elements of the defense of res judicata, see Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla.3d DCA 1979), and that therefore the defense is cognizable on a motion to dismiss, the order of the trial court is

Affirmed.

      . This count alleges a cause of action distinct and separate from the other counts of the complaint, and we thus have jurisdiction over this appeal. Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

      . Crystal contends that the facts belie AGB’s claim that Crystal consented to a judgment against AGB. It is irrelevant to this appeal whether Crystal’s consent to a judgment against Caloosa was the equivalent of a consent to judgment against AGB.

      . As Justice Black stated in Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949), in interpreting Rule 60(b)(6):
      “In simple English the language of the ‘other reason’ clause; for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.”

      . The grounds actually raised by AGB in its motion to set aside the default judgment are not before us. Although AGB concedes in its brief that its motion alleged that Crystal breached its fiduciary duty by settling with Gracer, the face of its complaint merely states that it filed all appropriate motions for relief. Since this is an appeal from a dismissal, only those matters appearing on the face of the complaint can be considered by us. See Frank v. Campbell Property Management, Inc., 351 So.2d 364 (Fla. 4th DCA 1977). But because it is apparent from the complaint that the grounds for relief which AGB now raises could have been raised in its motion to set aside the default judgment, we need not concern ourselves with what was actually raised.

      . AGB correctly points out that the doctrine of collateral estoppel requires that the prior issues be actually raised and determined. See, e.g., Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla.3d DCA 1979). But Crystal’s argument below and here is based on res judicata, the conditions of which are harder to meet, but the reach of which is far broader.

      . In Floyd v. Roberts, supra, the plaintiff brought an action for breach of a real estate sales contract and obtained a default judgment. Defendant moved to set aside the default on the sole ground that she did not receive service of process. The motion was denied. Plaintiff later sued in aid of an execution, and defendant filed a counterclaim for damages alleging fraud. The court held that while the defendant did not assert the claim of fraud in her motion to set aside the default, she could have done so, and had she not defaulted in the original action, she could have asserted fraud as an affirmative defense. The court concluded that res judicata barred defendant’s counterclaim for damages on the grounds of fraud. Id. at 186. Accord, McInerney’s Inc. v. Dunford, 341 Mich. 477, 67 N.W.2d 727 (1954); 7 Moore’s Federal Practice 60.40, at 664 (2d ed. 1979) (“a federal judgment rendered in a [Rule] 60(b) motion proceeding is res judicata of the matters therein adjudged or which were fairly open to judgment”).

        . In Caputo v. Globe Indemnity Company, 41 F.R.D. 239 (E.D.Pa.1966), it was held that an independent action to set the default judgment aside will not be dismissed on res judicata grounds where a previous motion under Rule 60(b)(1), Federal Rules of Civil Procedure, to vacate the default judgment was rejected as untimely. The court’s rationale was that Capu-to’s claim that his failure to timely file under Rule 60 was a result of excusable neglect had never had been considered, and if such claim were established, the independent action would provide Caputo’s first opportunity to attack the default. Without first deciding the excusable neglect claim, the court could not determine whether the grounds asserted for vacating the default judgment could have been raised under Rule 60, and therefore could not dismiss on the basis of res judicata. Later, however, finding that Caputo’s neglect was not excusable the court entered judgment against Caputo, holding that since he should have timely filed a Rule 60 motion, his independent action to set aside the default judgment was barred by res judicata. Caputo v. Globe Indemnity Company, 41 F.R.D. 436 (E.D.Pa.1967). Of course, in the present case where AGB’s Rule 60 motion was timely made so that its denial constituted a ruling on the merits, dismissal on res judicata grounds is appropriate.


author: PER CURIAM.

text:
    John MERRILL, Appellant v. STATE of Florida, Appellee.
    No. 80-579.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 1981.
    Rehearing Denied Jan. 7, 1982.
    Nelson E. Bailey of Bailey & Jordan, P. A., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen. Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm the convictions but vacate the sentence and remand for resentencing in conformance with Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla. 1981).

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


author: JOANOS, Judge.

text:
    Joseph DELMARCO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. XX-76.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Rehearing Denied Dec. 23, 1981.
    John Yetter, Tallahassee, and Robert G. Kerrigan of Kerrigan, Estess & Rankin, Pensacola, for appellant.
    Jim Smith, Atty. Gen., Gregory C. Smith, Carolyn M. Snurkowski, Asst. Attys. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Delmarco advances a number of arguments for reversal of his conviction on two counts of unlawful possession of codeine and diazepam, and one count of introducing those substances into the Escambia County jail. Having reviewed the appellant’s lengthy brief and having heard oral argument, we affirm. We feel it is of value to address only one argument raised by appellant’s counsel, and we also feel it necessary to comment upon the remarks of the assistant attorney general at oral argument which had no foundation in the record before us at the time.

Delmarco contends the trial judge committed reversible error by failing to conduct an inquiry into possible prejudice caused by an alleged discovery violation by the prosecutor. If a trial judge becomes aware that the State has breached the discovery provisions of the Florida Rules of Criminal Procedure, he must conduct an inquiry into the circumstances surrounding the breach, he must ascertain the degree of prejudice to the defense, and he must determine the appropriate sanction. Richardson v. State, Fla., 246 So.2d 771 (1971). Therefore, Delmarco asserts, because a discovery violation occurred and the judge did not make an inquiry, the conviction must be reversed.

We affirm because the record does not indicate the trial judge was put on notice that a discovery violation occurred, so the requirements of Richardson do not apply. Delmarco’s trial argument on this point, did not sufficiently apprise the trial court of a discovery violation. The trial judge was never called upon to decide the point. We will not be persuaded to extend the Richardson reasoning to require that the trial judge act as the defendant’s advocate.

Further, we wish to note that at oral argument, the State’s counsel argued that certain depositions made clear that no discovery violation had occurred below; however, those depositions were not in the record on appeal, nor did they appear in designations or directions to the court reporter or clerk. Such argument is improper.

We grant the motion, belatedly filed by the State shortly after oral argument, to supplement the record with those depositions. Delmarco’s attorney on appeal has used his response to the motion as an opportunity to address the substantive issue raised by the State in connection with the depositions, mitigating the possible prejudicial effect of admitting the depositions at this point. In fact, Delmarco contends that certain material contained in the depositions actually supports his position. However, because our rejection of appellant’s argument based on the Richardson case is for the reasons expressed above, the depositions have had no effect on the disposition of this appeal.

AFFIRMED.

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

      . § 893.13(l)(e) Fla.Stat.

      . § 951.22 Fla.Stat.


author: McCORD, Judge.

text:
    Howard W. ADAMS and Randy D. Ward, Appellant, v. STATE of Florida, PROFESSIONAL PRACTICES COUNCIL, Appellee.
    No. YY-304.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.

      Philip J. Padovano, Tallahassee, and Ronald G. Meyer, Tampa, for appellants.
    James D. Little, Gen. Council, State Board of Ed., Tallahassee, for appellee.
    Harry A. Blair, Fort Myers, for amicus curiae School Bd. of Lee County, Fla.
   McCORD, Judge.

Appellants Adams and Ward appeal from appellee State of Florida Professional Practices Council’s orders revoking their teaching certificates pursuant to § 231.28, Florida Statutes. The basis of the certificate revocation proceedings is that appellants were found to be in possession of 52 marijuana plants on April 1, 1979. The grounds set forth by the Council for revocation are that appellants “are guilty of acts involving moral turpitude, that as a result of the commission of these acts their effectiveness in the Lee County School System has been seriously impaired, and that they have failed to provide leadership and direction for others by appropriate example.” We affirm.

As their first point, appellants contend that the warrantless seizure of the marijuana cannot be justified under the plain view exception to the search warrant requirement and, therefore, the marijuana evidence should have been suppressed. The marijuana plants were discovered when a police officer, in response to a call from one of appellants’ neighbors was pursuing two young vandals. In his pursuit, the officer was informed by the neighbor that the two vandals had proceeded in the direction of appellants’ backyard. In his effort to apprehend the vandals, the officer crossed appellants’ backyard and, in the process, saw two silhouettes in a greenhouse in the yard. He stopped at the open door to the greenhouse to inquire of the people therein about the vandals. As he looked inside the greenhouse, he observed the 52 marijuana plants. He thereafter seized the plants.

The officer’s warrantless seizure of the plants falls clearly within the “plain view” exception to the search warrant requirement. Compare Ensor v. State, 403 So.2d 349 (Fla.1981). In Ensor, the court defined the “plain view doctrine” as follows:

In this situation, an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband also in the protected area. It - is this situation for which the United States Supreme Court created the “plain view doctrine” in Coolidge and held that an officer could constitutionally seize the contraband in “plain view” from within this protected area. We emphasize that it is critical under this doctrine for the officer to be already within the constitutionally protected area when he inadvertently discovers contraband.

In the instant case, the officer, being in hot pursuit of the two vandals, was legally within the constitutionally protected area of appellants’ backyard when he inadvertently discovered the contraband. Therefore, the marijuana evidence was properly admissible in the revocation proceedings.

Appellants further contend that the evidence is insufficient to establish that they engaged in an act of immorality. Section 231.28(1) provides that a teacher’s certificate may be revoked if it can be shown that the teacher

.. . has been guilty of gross immorality or an act involving moral turpitude, . . . or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provisions of law ... or has refused to comply with the regulations of the state board of education or the school board in the district in which he is employed. (Emphasis supplied.)

Appellants argue that possession of marijuana is not an inherent wrong and, therefore, cannot be classified as gross immorality or “moral turpitude” for purposes of the revocation proceedings. Appellants rely upon Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), and certain California cases. The Pearl case involved the suspension of a realtor’s license by the Florida Board of Real Estate because he pled guilty to possession of marijuana. The court ruled that “possession of a controlled substance does not establish moral turpitude within the purview of Section 475.25(l)(e).” In our view, however, the moral standard to be upheld by teachers is different from that of realtors, since teachers are charged by §§ 231.09 and 231.-28(1) with providing leadership and maintaining effectiveness as teachers. By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community. See Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3d DCA 1962). Further, the record contains substantial evidence that appellants’ possession of marijuana received widespread newspaper publicity in the Lee County area and that many people were aware of the facts involved. The evidence indicates that possession of marijuana is considered a very serious and morally wrong offense in the Lee County Community and that appellants’ involvement with marijuana had seriously impaired their abilities to remain effective teachers. The Council was justified in determining that, by being in possession of 52 marijuana plants, appellants had not fulfilled their duties of providing leadership and had lost their effectiveness as teachers. The Council did not err in revoking appellants’ certificates.

AFFIRMED.

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


author: ERVIN, Judge.

text:
    Essie WOODS, Appellant, v. GREATER NAPLES CARE CENTER and R. P. Hewitt & Associates, Appellees.
    No. YY-377.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1981.
    Rehearing Denied Dec. 23, 1981.

      Jack H. Cohen of Law Office of David Goldman, Miami, for appellant.
    T. Rankin Terry, Jr., of Terry & Terry, Fort Myers, for appellees.
   ERVIN, Judge.

Woods, the claimant below, raises six points on appeal. We reverse the deputy’s order and remand with instructions on three points of the six points raised and affirm the case on the remainder.

First, Woods contends that the deputy erroneously found that the claimant reached MMI on November 21, 1979, because the only competent evidence supporting this finding was Dr. Hussey’s opinion that MMI ultimately occurred on August 26, 1980. We agree with appellant that based on the unrefuted opinion of Dr. Hus-sey and the deputy’s other findings, the claimant could not have reached MMI until August 26, 1980. The deputy’s order is internally inconsistent. It found MMI occurred on November 26,1979; yet it accepted Dr. Hussey’s 15% PPD rating given on August 26, 1980, which was a 10% increase over Dr. Hussey’s earlier rating given on November 21, 1979. This increase in disability belies the deputy’s MMI date.

The employer/carrier argues, however, that the claimant should be bound by her pretrial stipulation entered into on February, 1980, when she stipulated that MMI actually occurred on November 21, 1979. Nevertheless, the record shows that the claimant’s injuries worsened after that date. A stipulation cannot be extended to embrace matters not included in the stipulation. See Metz Package Store v. Ransom, IRC Order 2-2625 (May 29, 1974). Moreover, the employer/carrier did not object to the claimant presenting evidence at the compensation hearing as to the MMI date. A deputy should not bind himself to a stipulation if facts presented at the hearing are at variance with, and show good cause for modification of the stipulation. See Delta Drilling Co. v. Wells, IRC Order 2-3708 (February 22, 1979) (cert. den. 379 So.2d 204 (Fla.1979)); Baird-Ray Datsun v. Butler, 400 So.2d 1038 (Fla. 1st DCA 1981) (Ervin, J., concurring in part and dissenting in part).

Because MMI, in this case did not occur until August 26, 1980, the claimant may possibly be entitled to additional temporary total and/or temporary partial disability benefits. However, we caution that “there is no automatic relationship between temporary total disability and the achievement of maximum medical improvement. The key is capacity to return to work.” T. G. Lee Foods, Inc. v. Walker, 395 So.2d 252 (Fla. 1st DCA 1981). Accordingly, the deputy’s finding of MMI on November 21,1979, is reversed and the case is remanded with directions for August 26, 1980 to be entered as the correct date of MMI, and for a determination as to whether the claimant was TTD and/or TPD between November 21, 1979 and August 26, 1980. Also, on remand, the deputy should award the claimant’s attorney’s fees and costs (Points II and III) should the deputy enter such temporary award.

Affirmed in part, reversed in part, and remanded for further consistent proceedings.

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


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Loren Michael FACKLER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1428.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 1981.
    Rehearing Denied Dec. 17, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a conviction for first degree murder and a sentence of life imprisonment.

We find no harmful error and affirm. The only point raised which merits discussion is whether the trial court erred in failing to conduct a Richardson hearing prior to permitting a witness to testify where the necessity for calling such witness occurred as a result of unforeseen circumstances which developed during trial.

At trial, the defense, in its case in chief, called Marie Odom, appellant’s mother. On cross-examination, the state tried to impeach her with a statement made when she was deposed. Ms. Odom testified she did not remember the contents of her deposition and after unsuccessfully trying to refresh her memory, the following took place:

[PROSECUTOR]: May at this time the State recess its cross-examination of this witness and call a witness to establish some matters affecting her cross-examination?
THE COURT: Yes.
[DEFENSE COUNSEL]: Judge, we would oppose that, of course, at this juncture.
THE COURT: Your basis?
[DEFENSE COUNSEL]: If it’s to be done it’s not done before I have an opportunity to recross, redirect a witness.
THE COURT: They have not concluded their cross-examination.
[DEFENSE COUNSEL]: Well, even up to the point where we are now I think I’d be entitled to recross, redirect.
THE COURT: What would this witness be proposed to call?
[PROSECUTOR]: Karen Jones.
[DEFENSE COUNSEL]: We would object. Her name has not been furnished on the witness list.
THE COURT: I will overrule the objection.
[DEFENSE COUNSEL]: I’d like an opportunity to take her deposition before she testifies.
[PROSECUTOR]: Your Honor, a copy of this was furnished to Mr. Kirkland and it has her name right on it.

Ms. Jones was then called and testified that she was a court reporter and had transcribed Ms. Odom’s statement. She further testified that the document showed to Ms. Odom was an accurate portrayal of what was said during the deposition.

Appellant argues that since Ms. Jones’ name was not on the state’s witness lists, under Richardson v. State, 246 So.2d 771 (Fla.1971), the trial court was required to make an inquiry as to whether appellant was thereby prejudiced in his preparation for trial. Since no such inquiry was held, appellant argues that under Richardson and its progeny, reversal of his conviction is required. See Kilpatrick v. State, 376 So.2d 386 (Fla.1979); Smith v. State, 372 So.2d 86 (Fla.1979).

In Richardson, the court declared that the rule requiring witness disclosure “was designed to furnish a defendant with information which would bona fide assist him in the defense of the charge against him. It was never intended to furnish a defendant with a procedural device to escape justice.” 246 So.2d at 774. The court, in discussing the nature of the inquiry, stated “[w]ithout intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.” (emphasis added) Id. at 775.

In C.A.W. v. State, 295 So.2d 329 (Fla. 1st DCA 1974), an extremely narrow exception to Richardson was recognized. In C.A.W., the defendant, on cross-examination of the arresting officer, sought to question him regarding events which occurred after the defendant was arrested. The trial court sustained objections to this line of questioning, on the ground that the questions where beyond the scope of direct examination. After the state rested, the defendant sought to call the officer as his own witness but the trial court sustained the state’s objection on the ground that the officer’s name had not been furnished to the state on the defense witness list.

On appeal, the First District Court of Appeal reversed, declaring:

[T]he rule [requiring exchange of witness lists] has a laudable purpose and should be complied with. However, when, as here, the opposing party is fully acquainted with the witness and with his anticipated testimony, thus where there can be no surprise, and where the necessity for calling the witness occurs as a result of unforeseen circumstances which developed during the trial. . . and where it is apparent that no prejudice can result as a result of the failure to list the witness, then, under such circumstances, the rule should not be blindly followed. The purpose of the rules, indeed the purpose of the law, is to achieve justice not frustrate it.

295 So.2d at 331.

While the facts of this case are distinctly different, the principles of C.A.W. apply. Appellant knew Ms. Jones and the nature of her testimony. The necessity of calling her occurred as a result of unforeseen circumstances which developed during the trial and the brief and ministerial nature of her testimony indicates that no prejudice was visited upon appellant by calling her. To require the trial judge to conduct a formal Richardson inquiry under the factual circumstances of this ease when the parties and the court knew the witness who was accessible to both the state and defendant and the nature and extent of her testimony would serve no purpose.

AFFIRMED.

COBB and COWART, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: BOOTH, Judge.

text:
    John R. SPEY, Blanche Wenzel, William R. Leibold, James Yealy, William J. Hord, Donald F. Elwell, Arthur J. Bogan and Marian Harris, Appellants, v. Hayward T. HAYES, Dee Parkton, Bob L. Echols, Michael M. Mitchell and Moe Hersh, individually and as County Commissioners of Okaloosa County, Florida, W. C. Jones and Walton Grocery Company, Inc., Appellees.
    No. PP-48.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Rehearing Denied Nov. 30, 1981.
    D. Michael Chesser of Selby, Chesser, Wingard, Barr & Jones, Fort Walton Beach, for appellants.
    James E. Moore of Moore, Anchors & Reid, Niceville, for appellees W. C. Jones and Walton Grocery Company, Inc.
    John R. Dowd, Fort Walton Beach, for appellee Okaloosa County Commissioners.
   BOOTH, Judge.

This cause is before us on appeal from a final judgment denying a mandatory injunction sought by plaintiffs, appellants' herein, to require removal of improvements allegedly constructed in violation of the Santa Rosa Island Protective Covenants and Restrictions. Plaintiffs, residents and leaseholders on Santa Rosa Island, contended below that the improvements violated setback line (yard) requirements, were not “affiliated services” as authorized in the B2 area classification, and were constructed across lot lines without approval.

Defendants, appellees, are Walton Grocery Company, leaseholder of Lots 363 and 364; W. C. Jones, primary shareholder of Walton Grocery Company; and the Okaloo-sa County Commission. The subject lots are located within the B2 zone as set forth in the protective covenants and subject to the following restrictions:

Zone B2 — Apartment, Hotel Court, and Hotel Areas—
Uses — Within any B2, Apartment, Hotel Courts and Hotels areas, no building, structure or premises shall be used or arranged or designed to be used in any part except for one or more of the following uses in addition to the uses permitted in B1 Private Residential Area:
(1) Duplex residence-apartment
(2) Hotels
(3) Tourist or hotel courts
(4) Apartment house
(5) Affiliated services built in conjunction with, and within the same plan as (2), (3) and (4) above, such services being as newsstands, barber shops, beauty shops, dining rooms, drug shop, rental boat basins, delicatessens, filling stations, variety shops, clothing shops, flower shops and other shops as may be deemed necessary and proper by the Authority and the Project Architect, from time to time, to serve the needs of tourists and vacationists. Exterior display or advertising signs for such facilities shall be in accordance with the lease form for the property in question. In no instance shall there be more than one sign per project.

The improvements built by appellees, and subject to the dispute herein, are: (1) a seven-eleven-type convenience store, with gas pumps, located on Lot 363, completed in April of 1976 as a free-standing structure; (2) a shopping area constructed in 1978 on Lot 364, consisting of a gift shop and a combination beach supply, gift shop and pinball alley; and (3) several efficiency apartments added on top of the commercial strip. The entire development contains approximately 9,000 square feet. The ground-level, devoted to commercial use, occupies 7,000 square feet; the upper level residential-type occupies 2,000 square feet. There are four separate signs identifying the various commercial establishments on the first floor.

In December, 1975, the County Commission purported to amend the covenants applicable to Lots 363 and 364 by deleting the “affiliated service” requirement, quoted above, so as to allow the construction of a free-standing commercial use and issued building permits for the construction of the convenience store. Litigation by Santa Rosa leaseholders to prevent construction of the convenience store was timely commenced; but the construction continued and the convenience store was completed in April of 1976. That suit culminated in the opinion of this court rendered August 11, 1978, in Okaloosa Island Leaseholders’ Association v. Hayes, 362 So.2d 101 (Fla. 1st DCA 1978), holding that the Board of County Commissioners could not amend the covenants in contravention of the valid contract rights of leaseholders and that the Commission had no greater powers than its predecessor, the Island Authority. The lower court’s decision, that the covenants and restrictions, following the enactment of Chapter 75-456, Laws of Florida, become effective as a zoning ordinance, was reversed. This court held that the restrictive covenants could not be revised or amended without the written consent of the majority of the lessees in the area, as provided in the restrictive covenants.

During the pendency of that prior appeal, appellee built, in 1978, an additional shopping facility, adding 5,000 square feet for commercial use which was physically attached to the existing 2,400-square-foot convenience store on the adjoining lot. Some 2,000 square feet of residential area was constructed on the eastern end of the roof of the shopping facility.

Following rendition of the decision in Okaloosa Island Leaseholders’ Association v. Hayes, supra, appellants filed the instant suit seeking injunctive relief to enforce the leaseholders’ contract rights. A hearing was held, and the trial court entered the order herein sought to be reviewed, in pertinent part as follows:

1. The improvements constructed on Lots 363 and 364, Santa Rosa Island Subdivision, Okaloosa County, Florida, do not violate the “yard” requirements (set-back lines) as set forth in Part D of the Protective Covenants. Subject building “fronts” on Santa Rosa Boulevard and is at least 30 feet from said street line. The building is at least 15 feet from Porpoise (side yard) and there is no “rear yard” requirement in the Protective Covenants applicable to the building as it relates to Nautilus Court.
2. Said improvements are now within the enumerated, affiliated services as set forth in Part D, and the County Commission had deemed such construction to be necessary to serve the needs of the tourists and vacationists.

Therefore, the trial court found that, even without the amendment to the covenants, the improvement met the applicable restrictions.

The question now before this court is whether the trial court erred in finding that appellees’ improvements did not violate the B2 classification or the setback and yard requirements applicable to the property under the covenants. We accept the trial court’s determination that no violation of the yard or setback requirements occurred. See, Orange Gardens Civic Association v. Harris, 382 So.2d 1340 (Fla. 5th DCA 1980). However, as to the “affiliated service” requirement, we must reverse the judgment below.

The parties assert conflicting property rights: appellants seek to preserve and maintain the value of their respective leaseholds by requiring appellees’ compliance with covenants governing the use of appel-lees’ property, while appellees claim the right to make commercial use of their lots.

Covenants restricting free use of private property must be strictly construed in favor of the property owner. Washingtonian Apartment Hotel Company v. Schneider, 75 So.2d 907 (Fla.1954). However, where the intent of the parties, as shown by the document as a whole, is reasonably clear, such restrictions will be enforced, including the removal or alteration of the offending structures. Barrett v. Leiher, 355 So.2d 222 (Fla. 2d DCA 1978); Moore v. Stevens, 90 Fla. 879, 106 So. 901, 43 A.L.R. 1127 (1925); Daniel v. May, 143 So.2d 536, 538 (Fla. 2d DCA 1962); 20 Am. Jur.2d Covenants, Conditions and Restrictions, §§ 185-87.

In the instant case, the protective covenants plainly indicate that B2 areas are intended to be primarily residential with subsidiary or “affiliated” commercial use permitted. An affiliated service is one which is dependent on, and provided in connection with, a primary or predominant use of the property. Commercial services and facilities which are associated with and incidental to the residential use must be of a size and nature to serve tenants of the residential facility, although general public access need not be denied. The interpretation urged by appellees would eliminate the distinction between Zones B2 and B3 and allow the construction of a shopping center in a B2 zone, provided a token apartment area was annexed.

In the instant case, the relative size of the residential and the commercial areas, the sequence of events leading to the construction of the various portions of the development, as well as the actual use of the commercial portions and lack of use of the residential portion are evidence that the residential use is far from the predominant or primary use of the property. Appellee Jones testified that the construction on the two lots was to be “a commercial building” and that the apartments were added so as to obtain approval for the commercial building, as follows:

Q Is there any question but that the primary intention of these plans and of the structure that is located on those two lots is to be a commercial building?
[Jones] A It was to be a commercial building, yes.
Q And that the apartments were added merely to attempt to comply with those covenants?
A Added for that purpose only? When it was brought to my attention that we would have to have apartments in connection with the commercial building, whatever that time was, not remembering dates, then I instructed the builder to have the plans drawn up.
Q And, you submitted the plans for the apartments because you felt that was necessary to get the commercial building in place?
A To the best of my knowledge that is correct.

In addition, the owner testified that no exterior sign identified the apartments and that they had never been occupied or advertised for rent.

The trial court, in the final judgment herein sought to be reviewed, ruled:

The evidence reflects that these improvements were constructed during that period of time when interpretation of the protective covenants and restrictions were the subject of hotly contested litigation in the courts of this county, which litigation had been previously initiated as the result of the commencement of this construction. Continued development was certainly with actual notice that it was doing so at its own peril, [emphasis supplied]

The foregoing determination by the trial court supports appellants’ right to equitable relief. However, the relief to be granted was not an issue reached below because of the trial court’s ruling that the covenants were not violated.

We hold that appellants are entitled to relief in this ease. However, the relief to be afforded involves factual matters, equitable considerations and the exercise of judicial discretion. Obviously, something less than the destruction of the improvements can be required and a reasonable time for conversion to permitted uses allowed.

Accordingly, the judgment below is affirmed in part, reversed in part, and the cause remanded for further proceedings consistent herewith.

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

      . Most, if not all, of the privately owned property on the Island is held under long-term leases. See, Straughn v. Camp, 293 So.2d 689 (Fla.1974), for history and background of Santa Rosa Island.

      . Litigation was commenced January 6, 1976, within ten days after commencement of construction on Lot 363.

      . Barrett v. Leiher, 355 So.2d 222, 225 (Fla. 2d DCA 1978):
      Florida adheres to the general rule that a reasonable, unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms. If it is necessary to construe a somewhat ambiguous term, the intent of the parties as to the evil sought to be avoided expressed by the covenants as a whole will be determinative. Only where intent cannot be ascertained will the covenant not be enforced, [citations omitted]

      . See, City of Miami Beach v. Uchitel, 305 So.2d 281 (Fla.3d DCA 1974); see, generally, 101 C.J.S. § 176, 101A C.J.S. §§ 148, 149.

      . The covenants and restrictions set up four classifications, to-wit;
      Zone B1 — Private Residential Areas;
      Zone B2 — Apartment, Hotel Court, and Hotel Areas;
      Zone B3 — Light Commercial and Concession Areas; and
      Zone B4 — Parks, Beaches and Freeway Areas.


text:
    William J. HARTNETT, Sr., Appellant, v. DEPARTMENT OF INSURANCE, Appellee.
    No. PP-224.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1981.
    Robert J. Kelly and Kenneth H. Hoffman, of Rogers, Towers, Bailey, Jones & Cay, Tallahassee, for appellant.
    S. Strom Maxwell, Tallahassee, for appel-lee.
   PER CURIAM.

Hartnett appeals an order of the Insurance Commissioner which revoked his licenses and eligibility to hold the licenses of ordinary life including disability, general lines, surplus lines, and disability. Hartnett urges the Commissioner erred in concluding that he had violated Sections 626.621(2) and 626.611(10), Florida Statutes (1975). We reverse.

Hartnett was charged with violations of the insurance code in six different counts. After an administrative hearing, the hearing officer entered an order finding that the evidence sustained Counts I and VI and recommending that Hartnett’s licenses and his eligibility to hold the licenses be suspended for a period of six months. The Insurance Commissioner adopted the hearing officer’s findings of fact and conclusions of law, but rejected the hearing officer’s recommended penalty and instead ordered that Hartnett’s licenses be revoked.

Hartnett was president of Southern American Fire Insurance Company (Southern American). Although he did not hold a 220 general lines license with the company, Hartnett served as its general agent. As general agent, Hartnett had the power to appoint sub-agents who were licensed by the company. North Star Agency of Hollywood (North Star) was established as a sub-agency of Southern American.

Count I alleged that Hartnett had violated numerous provisions of the insurance code, particularly Sections 626.621(2) and 626.957, Florida Statutes (1975), by submitting to the Department two quarterly financial statements of Southern American which listed as admitted assets agents’ balances which were over ninety (90) days old and due from agencies owned, controlled, or directed by Hartnett. At the hearing, it was stipulated that the March 31, 1975, and the June 30, 1975, quarterly statements of Southern American filed with the Department reflected a substantial amount of agents’ balances which were over ninety (90) days old which balances were due from agencies in which Hartnett had an interest as an officer, director, or stockholder. It was further stipulated that the elimination of these agents’ balances would have left Southern American impaired under usual insurance accounting practices. The quarterly statements were signed by Hartnett in his capacity as president of Southern American.

The hearing officer found, upon conflicting evidence, that in 1969 various officials of the Department had discussions with Hartnett regarding agents’ balances which were over ninety (90) days old. Conflicting evidence, the hearing officer also found that Hartnett, in 1972, had instructed Mr. Huard, the Assistant Treasurer of Southern American who had prepared the quarterly statements in question, not to show the over ninety-day old balances on the workup sheet which was prepared in order to compile the quarterly statements.. The hearing officer also found that the workup sheets had been approved by Hartnett.

Section 626.621(2) authorizes the discretionary suspension or revocation of the license of any agent where the Department finds that the licensee has “[violated] . . . any provision of this code or of any other law applicable to the business of insurance' in the course of dealing under the license .. . . ” Section 624.424(1), Florida Statutes (1975), requires insurers to annually file with the Department a full and true statement of its financial condition, transactions, and affairs as of the December 31 preceding. Subsection 6 provides:

In addition to information called for and furnished in connection with its annual statement, an insurer shall furnish to the department as soon as reasonably possible such information as to its transactions or affairs as the department may from time to time request in writing. All such information furnished pursuant to the department’s request shall be verified by the oath of two executive officers of the insurer, or, if a reciprocal insurer, by the oath of the attorney in fact or its like officers if a corporation.

Section 626.957, Florida Statutes (1975), provides:

(1) No person shall file with any supervisory or other public official, or make, publish, disseminate, circulate or deliver to any person, or place before the public, or cause directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false statement of financial condition of an insurer with intent to deceive.
(2) No person shall make any false entry in any book, report, or statement of any insurer with intent to deceive any agent or examiner lawfully appointed to examine into its condition or into any of its affairs, or any public official to whom such insurer is required by law to report, or who has authority by law to examine into its condition or into any of its affairs, or, with like intent, willfully omit to make a true entry of any material fact pertaining to the business of the insurer in any book, report, or statement of the insurer.

Section 625.012, Florida Statutes (1975) provides that “[i]n any determination of the financial condition of an insurer,” there shall be allowed as “assets” only such assets as are therein enumerated. (Emphasis supplied). Subsection (5), by defining assets to include “[pjremiums in the course of collection, other than life insurance, not more than 3 months past due, less commissions payable thereon . . .,” impliedly excludes from being allowed as assets those premiums which are more than three months past due.

The Department contended below that discipline was appropriate under Section 626.621(2) because Hartnett had violated Section 626.957 by including agents’ balances over ninety (90) days in the aforementioned quarterly statements contrary to Section 625.012(5). The hearing officer agreed, finding that Hartnett had filed a false quarterly statement because Section 625.012(5) “[prohibited] the listing of agents’ balances of over 90 days as an admitted asset on a company’s financial statement.”

Count VI alleged that Hartnett had violated numerous provisions of the insurance code, particularly Section 626.611(10), by receiving some $55,000 consisting of agents’ balances owed from North Star to Southern American without sending, crediting, or depositing the same to the account of Southern American. At the hearing, it was stipulated that Hartnett, in his capacity as general agent of Southern American, had received some $45,000 from subagent North Star in payment of premiums due in Southern American on policies of insurance issued by Southern American through North Star. The checks were made payable to “William J. Hartnett, Agent.” The hearing officer found that Hartnett did not credit these funds to the account of Southern American, but rather retained the same for his own use. Hartnett claimed that the funds retained by him were monies owed him by Southern American as commissions, salary, and paid claims. The hearing officer further found that some of the monies due Southern American from North Star were still being carried on Southern American’s books as accounts receivable after North Star’s payment to Hartnett.

Section 626.611(10) authorizes compulsory suspension or revocation of the license of any agent for:

Misappropriation, conversion or unlawful withholding of moneys belonging to insurers or insureds or beneficiaries or to others and received in conduct of business under the license.

The hearing officer found that the evidence supported discipline under Section 626.-611(10), concluding that although Hartnett presented evidence that he was entitled to some of the money he had retained, the monies should have been credited to Southern American and then withdrawn as a payment to a creditor.

Hartnett’s challenge to the Commissioner’s order is primarily premised upon two grounds. First, as to Count I, Hartnett asserts that since there is no requirement by statute or rule that all insurers file quarterly statements with the Department, a violation of the insurance code can not be based upon the filing of a false quarterly statement. In this regard, Hartnett also asserts that Section 625.012 contains no sanctions for violation of its provisions and further does not indicate that its definition of assets is to be applicable to the listing of assets in the quarterly statement. Second, as to both Counts I and VI, Hartnett asserts that since he was not a licensed agent with Southern American, he can not be disciplined for his activities with respect to this company. Hartnett bases this argument upon his contention that the “in the course of dealing with the license” and “in conduct of business under the license” language of Section 626.621(2) and 626.611(10), respectively, limit the applicability of those sections so that Hartnett’s actions in his capacity as corporate officer of Southern American or as supervising or managing general agent of Southern American are not grounds for discipline thereunder.

We find no merit to Hartnett’s first argument with respect to Count I. Section 624.424(6) clearly empowers the Department to request in writing that information in addition to annual statements be furnished by insurers. Hartnett, by voluntarily complying with the Department’s informal request to file quarterly statements, waived any challenge that the quarterly statement was not statutorily required because not requested in writing. By its terms, Section 625.012(5) prohibits the listing of agents’ balances of over 90 days as assets in “any determination of the financial condition of an insurer.” A quarterly statement would be considered a document whose purpose is to determine the financial condition of an insurer. Even if the prohibition against the listing in quarterly statements of agent’s balances of over 90 days as assets were not explicitly made clear by statute, and even though not promulgated as a rule, the Department’s evidence here established that the practice of including such balances in the quarterly statements was condemned by the Department and that such condemnation had been clearly made known to Hartnett, specifically. See, Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177, 1181-1182 (Fla. 1st DCA 1981); Bowling v. Dept. of Insurance, 394 So.2d 165, 172-175 (Fla. 1st DCA 1981).

As to appellant’s second contention, that his activities in behalf of Southern American were not “in the course of dealing under the license,” or “in the conduct of business under the license” (Sections 626.-621(2) and 626.611(10), we find no valid basis upon which to expand the meaning of these qualifying phrases to include appellant’s activities as a general agent or corporate officer of Southern American. We emphasize here that appellant held no license of any kind as an agent for Southern American. We agree with appellant’s contention that these statutory provisions, being penal in nature, must be strictly construed and cannot be given a meaning beyond that suggested by the words used. In view of the indisputable fact that appellant’s filing of the quarterly report and his receipt of funds due to Southern American were unconnected with and independent of any insurance license he held by virtue of the Florida Insurance Code, we hold that these acts were not “in the course of dealing” or “in the conduct of business under the license” within the meaning of these provisions of the statutes.

Notwithstanding our above conclusion, it does not necessarily follow that appellant may not be subjected to disciplinary action by the Department under other statutory provisions cited in the charges against him. Specifically, we refer to Section 626.-611(7), which provides for compulsory revocation or suspension:

(7) For demonstrated lack of fitness and trustworthiness to engage in the business of insurance.

The evidence of appellant’s misdeeds presented in these proceedings might or might not be sufficient to warrant revocation under this section when measured by a “substantiality of evidence” standard appropriate to the nature and consequences of the proceeding. See Bowling v. Department of Insurance, supra.

Neither the hearing officer nor the Department has made findings relating appellant’s conduct specifically to Section 626.611(7), above quoted. Consequently, we do not have the benefit of the Department’s interpretation of this subsection, particularly on the issue of what conduct proscribed by other statutory provisions when committed “in the course of dealing” or “in conduct of business” under a license would satisfy a finding of “lack of fitness or trustworthiness” (Section 626.611(7)) when committed other than “in a course of dealing” or “in conduct of business” under a license. We note here that the task of interpreting the many interrelated statutory provisions found in the licensing and regulatory portions of the Florida Insurance Code is initially one for the Department. Roberts v. Ayers, on petition for rehearing, 380 So.2d 1057, 1060 (Fla. 1st DCA 1980); Rice v. Dept. of Health and Rehab. Services, 386 So.2d 844, 847, 850 (Fla. 1st DCA 1980); and Cenac v. Florida State Bd. of Accountancy, 399 So.2d 1013, 1018 (Fla. 1st DCA 1981). We would venture to suggest, however, that whatever specific infractions gleaned from the statutory language might be deemed to be pertinent to a determination of the “fitness and trustworthiness” standard, the element of “willfulness” found to be necessary in proof of Section 626.611(10) and other violations in Bowling, supra, would be no less essential in a prosecution relying upon the general, all-purpose language of Section 626.611(7).

Because of our conclusion that the hearing officer’s recommendation of disciplinary action was based upon an erroneous interpretation of the statutes, and because the hearing officer failed to rule on the applicability of Section 626.611(7), we think fairness dictates that upon remand the hearing officer be directed to submit an amended order in the light of this opinion before the Department further reviews and acts upon the charges against appellant. We again emphasize the necessity for the agency in its final order to set out the factual premises and reasoning upon which its action is based so as to comply with the mandates of the Administrative Procedures Act and to facilitate judicial review if any follows. See Cenac, supra, and Anheuser-Busch, Inc. v. Department of Business Regulation, supra.

REVERSED AND REMANDED.

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

      . The Insurance Commissioner was authorized, after a review of the complete record, to increase the recommended penalty, and this Court may not review the penalty imposed since it is within the permissible range of statutory law. § 120.57(1)(b)9, Fla.Stat. (1975); Fla. Real Estate Comm’n. v. Webb, 367 So.2d 201 (Fla.1978).

      . In order to prepare the quarterly statement, Huard first completed a balance sheet. The form utilized provided for the listing of agents’ balances as admitted assets. In the March 31, 1975 balance sheet, Huard listed agents’ balances of $450,809.46. The form contained the following caveat:
      Note: The following assets of the Company have been omitted from the above Balance Sheet in conformity with the Insurance Department reportings:
      Agents’ balances in excess of 90 days old .... $-
      ******
      In the March 31, 1975 balance sheet, the line designated “Agents’ balances in excess of 90 days old” was left blank. Huard admitted that there were agents’ balances in excess of 90 days old which were therefore consequently included in the figure representing agents’ balances listed as admitted assets. The figure of $450,809.46 was listed as “Agents’ balances ...” in the March 31, 1975 quarterly statement. This practice was repeated in the July 31, 1975 balance sheet and quarterly statement.