author: SIMONS, STUART M., Associate Judge. ANSTEAD, Judge,

text:
    Douglas M. SAUNDERS and Nationwide Insurance Company, Appellants, v. Thomas J. SMITH and Claudia Smith, his wife, Appellees.
    No. 77-2481.
    District Court of Appeal of Florida, Fourth District.
    April 9, 1980.
    Rehearing Denied May 22, 1980.

      Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellants.
    Richard J. Meehan of DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, P. A., North Palm Beach, for appellees.
   SIMONS, STUART M., Associate Judge.

For consideration in this appeal is the sole issue of whether certain comments by defense counsel on voir dire were so prejudicial as to authorize the granting of a new trial although no request for curative instructions was made, nor request for mistrial was made, nor demand made for a new venire. The case involved a knee injury and complications suffered by appellee Smith. Saunders concededly was at fault in a traffic accident involving appellee Smith; the only issues submitted to the jury were causation and damages. A verdict was returned in Saunders’ favor and against Smith, and judgment was entered thereon. Smith made a motion for new trial, asserting numerous errors in the proceedings. The motion was denied on all grounds except for that ground which stated that the court erred in “failing on its own motion to strike all voir dire statements made by counsel for the defendant when referring to the proposed witness in voir dire,” i. é., that the jury should have known of witnesses from newspaper articles wherein he was accused of tax evasion.

Plaintiff’s counsel objected to the statements made on voir dire, and the objections were sustained, but counsel neither asked for curative instructions, a mistrial, nor made demand for a new venire.

Trial judges are vested with broad discretion in granting a new trial, and appellate courts will not reverse an order granting new trial absent a clear abuse of that discretion. Cloud v. Fallis, 110 So.2d 669 (Fla.1959). In Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), the standard for reversal was stated as whether the trial court’s order was arbitrary, fanciful or unreasonable or that no reasonable man would adopt such a view. The court below felt that it had erred in not acting on its own motion to strike the improper statements to which it had already sustained an objection. We find this to be an unreasonable view of the responsibility of the trial court. The failure on the part of counsel to ask for curative instructions, request a mistrial, or to move for a new venire constituted intentional trial tactics, mistakes of which are not to be cured upon appeal simply because they backfired. Nelson v. Reliance Insurance Company, 368 So.2d 361 (Fla. 4th DCA 1978).

To allow an order granting new trial such as this to stand would be sanctioning a view of “fundamental error” which does not exist in law, and which would place upon the trial judge an untenable burden. The trial judge in a complicated civil matter has difficulty enough in ruling on motions and objections of the attorneys throughout the course of a trial without imposing upon himself this additional burden. Failure to act sua sponte without a specific request by a party should not be grounds for a new trial except in the most severe case. The order granting new trial is thus reversed and the cause remanded with directions to reinstate the jury verdict in favor of defendant and for further appropriate proceedings.

REVERSED AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE JURY VERDICT.

BERANEK, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

If the appellees were before this court as appellants seeking a new trial because of the improper comments involved herein, I would agree that their appeal should be denied. But we are reviewing an order granting a new trial and upon the granting of such motion our authority on review is simply not as great. The opinion of Justice Thomas in Cloud v. Fallis, 110 So.2d 669 (Fla.1959) is still applicable:

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, Poindexter v. Seaboard Air Line R. Co., Fla., 56 So.2d 905; Mead v. Bentley, Fla., 61 So.2d 428, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, Pyms v. Meranda, Fla., 98 So.2d 341.
When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record, Martin v. Stone [Fla., 51 So.2d 33], supra; Turner v. Frey [Fla., 81 So.2d 721], supra; Myers v. Atlantic Coast Line Railroad Co., Fla., 86 So.2d 792; Florida Publishing Co. v. Copeland, Fla., 89 So.2d 18. (Id. at 673)

We have held that in order to reverse an order granting a new trial it must be shown that the trial court’s action was arbitrary or fanciful or that no reasonable man would take the view adopted by the trial court. Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977).

The incident during voir dire relied upon by the trial court in ordering a new trial consisted of the following:

MR. LYTAL: I have just been told there was a doctor by the name of Doctor Dol-cey [sic] — Joseph Dolcey from Riviera Beach was going to testify here. You may have read about this man, he’s been in the paper, he’s been suspended by the Medical Society, he’s been tried for tax evasion and so forth — have any—
MR. MEEHAN: I have to object to this reputation; it’s not relevant to the case. MR. LYTAL: Your Honor, I have a right to know if they know anything about this man.
THE COURT: I’m going to sustain the objection. I think to characterize other than he is a practicing physician is somewhat improper at this time.
MR. LYTAL: Do any of you know Doctor Dolcey who has an office down in Riviera Beach right by Blue Heron Boulevard — no one knows him or anything about him?

(No response.)

The appellants, defendants below, admitted negligence but claimed that the appellees’ claims of injury were unfounded and exaggerated. And there was evidence to support this position. But there was also evidence to support the appellees’ claims, consisting primarily of the testimony of Dr. Dolce. With damages being the only issue on trial and Dr. Dolce’s credibility substantially challenged by considerations outside the record, it does not seem totally unreasonable for the trial court to conclude that a new trial should be granted. Weems, supra.

It is true that appellees only objected to the comments of counsel and did not request a curative instruction or move for a mistrial and that the motion for new trial was poorly drafted. However, I do not believe these deficiencies should prevent the trial court from granting a new trial if he concludes that the jury was influenced by improper considerations.


source: Caselaw Access Project

author: PER CURIAM. ERVIN, Judge,

license: Public Domain

text:
    Steven Paul SOWER, Appellant, v. STATE of Florida, Appellee. Linda PENNINGTON, Appellant, v. STATE of Florida, Appellee.
    Nos. MM-500, NN-1.
    District Court of Appeal of Florida, First District.
    April 9, 1980.
    Rehearing Denied May 16, 1980.

      Paul Casteleiro of the Law Offices of Michael Kennedy, New York City and Richard Ware Levitt, Miami, for appellants.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Sower and Pennington appeal their convictions for possession of marijuana pursuant to a plea of nolo contendere reserving the right to appeal the denial of their motion to suppress based on the ground that there was no valid consent to the search of lockers located in each truck driven by Sower and Pennington. As to Sower’s claim, we find no merit. However, Pennington’s claim, that consent should have been required from her to search the lockers in her truck, warrants discussion.

Inspector Pease stopped the trucks after they bypassed an agricultural inspection station. See Chapter 570, Fla.Stat. (1977). Both appellants opened the truck upon request. Pease smelled marijuana and asked Appellant Pennington if there was fruit in the lockers in her truck. At that moment, Appellant Sower stated, in Pennington’s presence, that the lockers in both trucks belonged to him and that there was no fruit in them. Pennington said nothing. Sower unsuccessfully attempted to open the lockers in his truck and in Pennington’s truck with a key in his possession. The appellants were arrested for violation of Section 570.15, and they were read their Miranda rights. Subsequently they were escorted to the police station, and shortly thereafter, Sower gave consent to open the lockers. Consent was neither sought nor obtained from Pennington to search the lockers in her truck.

Absent consent or some other exception to the warrant requirement, a search warrant was needed before the lockers could be searched. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). However, a general search of the trucks and a seizure of their contents would be authorized without a warrant because there was probable cause to believe the trucks contained contraband. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Arkansas v. Sanders, supra 442 U.S. at 759, 761, 99 S.Ct. at 2590-2592 at 242-243. Once the seizure of the lockers was authorized, their search could be consented to by their owner, Sower. We note that Pennington never contended below, nor does she contend here, that the lockers in her truck belonged to her or that they contained her property. Most importantly, it was Pennington’s own conduct at the time of the stop which led Pease and the police to believe that only Sower owned the lockers. Although Sower may have arranged with Pennington to transport his lockers, the sole ownership and primary custody and control was retained by him as evidenced by his conduct. Affirmed.

ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.

ERVIN, J., concurs and dissents with written opinion.

ERVIN, Judge,

concurring and dissenting.

While I concur in the affirmance of Sower’s conviction because I think the record amply sustains the conclusion that he consented to the search of the personal effects within his truck, I dissent to the affirmance of Pennington’s conviction since I do not believe that Sower could validly consent to the search of lockers owned by him and placed by him in Pennington’s possession. I agree, were it not for United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), that the deputy sheriff called to the scene by the agricultural inspector could lawfully have conducted a warrantless search of the contents within both defendants’ trucks once he had probable cause to believe marijuana was inside them. See Carroll v. United States, 267 U.S. 132, 45 S.Gt. 280, 69 L.Ed. 543 (1925), and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

An exception to the rule permitting such warrantless searches is that if the object of the search involves the personal effects of the possessor, the effects within vehicles may not be searched without warrants unless exigent circumstances, such as consent, are involved. The reason for the exception is that when one places his personal possessions inside luggage he

manifests] an expectation that the contents [will] remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause. United States v. Chadwick, supra, 433 U.S. at 11, 97 S.Ct. at 2483 (e. s.).

Thus the decisions in Chadwick and Sanders recognized that substantially greater Fourth Amendment privacy interests are affected in searches of an individual’s luggage than • are in automobile searches. Moreover, once a person demonstrated a legitimate privacy interest in property possessed by him, it was unimportant to the disposition of those cases whether the individual evinced also an ownership in such property.

The question not before the Court in either of the two cases, and the crucial issue here, is whether an owner can validly consent to the search of personal effects placed by him in the possession of another, thereby binding the possessor, who has not consented? In my judgment he cannot. Immediately before Pennington’s detention she had exclusive possession of Sower’s footlocker and its contents. The law is reasonably free from uncertainty that merely because one owns the fee to realty, he cannot consent to the search of a house which he had placed in the exclusive possession of another under a'rental relationship. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Tala vera v. State, 186 So.2d 811 (FIa.2d DCA 1966). Nor may hotel clerks validly consent to the search of a customer’s room. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Although the facts in the instant case are distinguishable from the above cases in that here personal property — as opposed to realty — is involved, the distinction is negligible. A bailor of personal property has no right to consent to the search of the bailed object during the period of the bailment. See People v. Smith, 67 Cal.App.3d 638, 136 Cal.Rptr. 764 (1977).

The determinative factor whether police are required to obtain a warrant before a search depends not upon whether the property to be searched is realty or personalty. The Warrant Clause does not distinguish between dwellings and other property. It “protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). And, “more particularly, it protects people from unreasonable government intrusions into their legitimate expectations of privacy.” United States v. Chadwick, supra, 433 U.S. at 7, 97 S.Ct. at 2481. The issue then turns upon whether the possessor has a substantial privacy interest in the area searched so that it could not be invaded unless either a warrant was obtained or exigent circumstances existed, thereby obviating the requirement for a warrant. In my judgment Pennington had a legitimate expectation that personal luggage placed in her truck would remain free from public scrutiny. Her privacy expectations were no less than those of a defendant whose luggage, allegedly placed in his possession by certain unknown persons, was held illegally seized because no warrant had first been obtained and no consent given to justify the seizure. See Shafi v. State, 377 So.2d 787 (Fla. 1st DCA 1979).

Even were it established that Sower had a shared possessory interest in the property found within Pennington’s vehicle — and there is nothing in the record supporting such a conclusion other than the fact of Sower’s ownership of the footlocker — I think the law is clear that Sower could not consent to the search because the record fails to demonstrate he had any access to Pennington’s motor vehicle.

Sower may arguably have had the right to consent to the search of articles owned by him, but he had no right to allow the officers to enter Pennington’s vehicle, neither owned nor possessed by him, to which he had no right of access. See discussion of validity of consent given by one who has general access to the area to be searched in Silva v. State, 344 So.2d 559, 563-64 (Fla. 1977), and in People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81 (1973), cert. den., 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108.

Finally, and perhaps most important, Sower’s consent to the search of his own personal effects could not bind Pennington because the record shows that at the time of his consent, Pennington was both present and had refused the officer’s admittance into her vehicle. While a joint occupant has authority to consént to a search of jointly held premises if the other party is unavailable, Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), “a present objecting party should not have his constitutional rights ignored because of a leasehold or other interest shared with another.” Silva v. State, supra, at 562 (e. s.). When first stopped, Pennington never gave the agricultural inspector permission to enter and search her truck. Later, at the jail, after being advised of her rights by a deputy sheriff, she refused to say anything. When searching officers, relying upon consensual search from third persons, are aware that the person who has refused consent “is the one whose constitutional rights are at stake . . . ” any resulting evidence uncovered from such a search is inadmissible against the person whose property is the object of the search. Id. at 563.

Pennington’s privacy interests were invaded by the search made of personal effects which were either in her exclusive possession or in the joint possession of both Sower and her. And, under the particular circumstances, only she could consent to the search of articles found inside Sower’s footlocker. I would reverse the judgment of conviction as to Pennington with directions that her motion to suppress be granted.

      . It is unnecessary to detail the circumstances; the trial court properly found clear and convincing evidence showing a free and voluntary consent based upon the conflicting testimony.


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

text:
    The SCHOOL BOARD OF LEE COUNTY, Florida, Appellant, v. FLORIDA PUBLIC EMPLOYEE RELATIONS COMMISSION, IBPAT, District Council # 66, and South Florida AFSCME, Appellees.
    Nos. JJ-451, KK-410.
    District Court of Appeal of Florida, First District.
    April 9, 1980.

      Harry Blair, Fort Myers, Jesse S. Hogg, and Donald H. Wilson, Jr., of Hogg, Allen, Ryce & Norton, P. A., Coral Gables, for appellant.
    Vernon Townes Grizzard, Tallahassee, for appellee PERC; Ben R. Patterson, of Patterson & Traynham, Tallahassee, for appel-lee South Florida AFSCME.
   ROBERT P. SMITH, Jr., Judge.

The School Board of Lee County appeals from PERC’s order on the Board’s petition for managerial/eonfidential designations, and from PERC’s later order, after an election, certifying the successful employee organization. We reverse PERC’s order designating confidential employees to the extent that PERC refused that classification to personal secretaries of school principals. This court determined as a matter of law in School Board of Palm Beach County v. Florida Pub. Employees Relations Comm’n, 374 So.2d 527 (Fla. 1st DCA 1978), cert. den., 380 So.2d 427 (Fla.1980), that the personal secretary of a school principal is, by definition, a confidential employee within the meaning and application of Section 447.203(5), Florida Statutes (1977). We decline to extend that categorical ruling to include all secretaries for other managerial employees .in the school system. As to those, PERC’s responsibility is to make a factual determination of their actual duties, based on substantial competent evidence. See City of Winter Park v. Florida Pub. Employees Relations Comm’n, 349 So.2d 224 (Fla. 4th DCA 1977). PERC’s order in this case, concerning those other secretaries, is without error.

We find no error in PERC’s determination that the following are not managerial employees within the meaning of Section 447.203(4), Florida Statutes (1977): cafeteria managers, drive supervisors, route supervisors, shop foremen, maintenance supervisors, maintenance and operations foreman, director of purchasing, payroll supervisor, print shop supervisor, supervisor of fiscal control, supervisor of school plant planning, and warehouse supervisor.

PERC chose unnecessarily obscure language when describing the bargaining unit as including “[a]ll regular full and part-time blue-collar non-instructional employees, including those occupying CETA PSE positions . . . The cause will be remanded for clarification of the term “blue-collar.” PERC does not lack power to alter terminology in the unit description agreed to by appellant, the employer, and Local No. 66 of International Brotherhood of Painters and Allied Trades, the original petitioner for certification. Appellee South Florida AFSCME, which as the certification recipient is now the real labor party in interest, did not agree to the proposed unit description. Moreover, PERC lacks power to alter proposed unit determinations only when the employer voluntarily recognizes an employee organization, which did not occur here. School Board of Marion County v. Public Employees Relations Comm’n, 330 So.2d 770 (Fla. 1st DCA 1976).

We find no other significant error. Appellant’s motion for attorney fees is DENIED.

AFFIRMED in part, REVERSED in part.

MILLS, C. J., and SHIVERS, J., concur.


author: SCHEB, Judge.

text:
    GENERAL MATTERS, INC., d/b/a York Associates, Appellant, v. PARAMOUNT CANNING COMPANY, Garden Gold Foods, Inc., and Suncoast Canning Corporation, Appellees.
    No. 79-588.
    District Court of Appeal of Florida, Second District.
    April 9, 1980.
    Charlie Luckie, Jr. and John W. Campbell of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    John W. Frost, II, and Charles W. Dodson of Holland & Knight, Bartow, for appellees.
   SCHEB, Judge.

A grocery retailer destroyed a shipment of allegedly defective canned grapefruit sections which it had purchased from York Associates, a food broker. The grapefruit had been canned by Suncoast Cannery Corporation and distributed by Paramount Canning Company. Neither York nór the retailer gave Suncoast or Paramount any notice that the goods were defective prior to their destruction. York agreed to indemnify the retailer for its losses and then sued Paramount and obtained a judgment for damages.

Despite its failure to notify Paramount prior to destruction of the goods, can York recover damages from Paramount for breach of implied warranty of merchantability? We hold that York’s failure to notify Paramount bars it from any remedy. We reverse the judgment for York entered by the trial court.

During 1974 Suncoast canned and stored 3500 cases of the grapefruit sections. In April 1976 Paramount’s agent, Dingfelder, looking for canned grapefruit, contacted Suncoast. Suncoast’s agent told Dingfelder of the grapefruit canned in 1974 explaining, however, that it was nearing two years old. Paramount purchased the lot and sold it to York shortly thereafter. York, in turn, sold the goods to Country Club Markets, a grocery retailer in Minnesota, without informing Country Club of the age of the goods.

After Country Club had sold 1,675 cases of the canned grapefruit in its supermarkets, some of the cans developed swells. After several customer complaints, the Minnesota Department of Agriculture determined that “the product should not be sold for human food.” At this point, Country Club, without notifying either Paramount or Suncoast, destroyed the remaining 1,825 cases. Country Club, the retailer, then billed York for its cost of the destroyed merchandise plus the cost of destruction. In response, York agreed to discount future purchases by Country Club until it had absorbed Country Club’s losses.

York sued Paramount seeking damages for breach of implied warranty of merchantability alleging that the goods did not have a reasonable shelf life. Paramount filed a third-party complaint against Sun-coast. Prior to trial Suncoast agreed to defend and indemnify Paramount in the action by York. Paramount, through Sun-coast, answered and asserted that York was barred from recovery because neither it nor its purchaser, Country Club, notified Paramount of the alleged breach prior to destruction of the goods.

Following a nonjury trial the court entered judgment for York. It found that Paramount had breached its implied warranty to York as to those cans which were swollen at the time they were destroyed. Nevertheless, it limited York’s recovery to the amount that York had actually given as a credit to Country Club at the time of trial because York had not joined Country Club as an indispensable party. The court further reduced that recovery since York had failed to notify Country Club of the age of the product, and because a percentage of the product was still marketable when Country Club destroyed it without notice.

On appeal York contends that the judgment should have compensated it for the full amount of its assumed obligation to Country Club. Paramount cross-appeals and argues that because neither Country Club nor York gave notice of the alleged breach until after destruction of the goods, York is barred from any remedy under Section 672.607(3)(a), Florida Statutes (1979) (U.C.C. § 2-607[3][a] [1972 version]).

We address the cross-appeal first because our disposition of it obviates discussion of the merits of York’s appeal. Section 672.607(3)(a), Florida Statutes (1979), provides that “[t]he buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” This notice requirement is a valid precondition of imposing liability on a seller of goods. Eastern Airlines, Inc. v. McDonnell Douglas Corp., 532 F.2d 957 (5th Cir. 1976); see Dunham-Bush, Inc. v. Thermo-Air Service, Inc., 351 So.2d 351 (Fla. 4th DCA 1977); Redman Industries v. Binkey, 49 Ala.App. 595, 274 So.2d 621 (1973); L. A. Green Seed Co. of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969). Further, the burden is on the plaintiff to show that he gave the required notice within a reasonable time. Standard Alliance Industries, Inc. v. Black Clawson Co., 587 F.2d 813 (6th Cir. 1978), cert. denied, 441 U.S. 923, 99 S.Ct. 2032, 60' L.Ed.2d 396 (1979); L. A. Green Seed Co. of Arkansas v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1964). Here, the evidence disclosed that Country Club voluntarily destroyed the canned grapefruit in the latter part of July 1977. The first notice of the alleged breach to either Paramount or Suncoast was an August 1 letter from the president of York to Dingfelder of Paramount.

There are several important reasons for the notice requirement of Section 672.-607(3)(a). The notice enables “the seller to make adjustments or replacements or to suggest opportunities for cure to the end of minimizing the buyer’s loss and reducing the sellers’ own liability to the buyer.” The notice requirement also protects the seller’s right to inspect the goods. J. White & R. Summers, Uniform Commercial Code § 11-9 at 344 (1972); see Note, Notice of Breach and the Uniform Commercial Code, 25 U.Fla.L.Rev. 520 (1973). Section 672.515, Florida Statutes (1979) (U.C.C. § 2-515 [1972 version]), which codifies the inspection rationale, provides that either party may inspect, test and sample the goods including those in the possession or control of the other for the purpose of ascertaining the facts and preserving the evidence. See Owen v. Sears, Roebuck & Co., 273 F.2d 140 (9th Cir. 1959).

York contends that notice after destruction of the goods constituted reasonable notice under Section 672.607(3)(a). It argues that notifying Paramount prior to destruction would have served no purpose since the Minnesota Department of Agriculture had stated that the food should not be sold for human consumption. We find York’s argument unpersuasive. First, the Minnesota Department of Agriculture did not order destruction of the goods. Moreover, while the findings of the Department were entitled to great weight, they were not conclusive, and Paramount was entitled to an opportunity to verify them. York’s destruction of the goods prior to notifying Paramount prevented this and impeded any possible settlement of the controversy. It also impaired Paramount’s ability to determine if the goods were, in fact, marketable and, consequently, hindered it in preparing its defense.

Accordingly, York’s failure to notify Paramount of the alleged breach prior to destruction ran counter to the purposes of Section 672.607(3)(a), Florida Statutes (1979), and barred York from any remedy for the alleged breach. Therefore, we vacate the judgment in favor of York Associates and direct the trial court to enter judgment in favor of Paramount Canning Company and Suncoast Cannery Corporation.

HOBSON, Acting C. J., and DANAHY, J., concur.

      . The Department found that 12.7% of the cans in its sample of five and one-half cases were puffed. Of eleven cans submitted for laboratory analysis, nine showed slight corrosion on the inside, two were moderately corroded, five contained flat spores and two contained carbon dioxide gas.

      . We note that this suit does not involve the applicability of the notice provision when a consumer files a tort action. For a discussion of the applicability of the notice provision under those circumstances, see J. White & R. Summers Uniform Commercial Code § 11-9 at 345 (1972).

      . Owen applied the notice provision of the Oregon Uniform Sales Act, Or.Rev.Stat. § 75.490. This section is identical to Section 672.-607(3)(a), Florida Statutes (1979).

      . There are cases where summary destruction of contaminated items may be required. See Conner v. Carlton, 223 So.2d 324 (Fla. 1969).
      This was not the case here, however, because the Department did not find that the canned goods, as such, were dangerous, but that their consumption was dangerous. Thus, there was no necessity to summarily destroy the goods.

      .We note that although some courts have waived the notice requirement, they have done so only when failure to give notice resulted in no prejudice to the seller. See, e. g., Pritchard v. Liggett & Myers Tobacco Co., 295 F.2d 292 (3d Cir. 1961); Note, Notice of Breach and the Uniform Commercial Code, 25 U.Fla.L.Rev. 520, 522 n. 15 (1973).


author: PER CURIAM.

text:
    Robert F. GATON, as Personal Representative of the Estate of Harold W. Gaton, Deceased, Appellant, v. Robert E. GARBART, Appellee.
    No. 79-1458.
    District Court of Appeal of Florida, Second District.
    April 9, 1980.
    John Charles Heekin of Farr, Farr, Hay-mans, Moseley, Odom & Emerich, Port Charlotte, for appellant.
    No appearance for appellee.
   PER CURIAM.

The record on appeal reveals genuine issues of material fact sufficient to preclude the entry of a summary judgment in this case. We, therefore, reverse the trial court’s order granting appellee’s motion for partial summary judgment and remand this cause to the trial court for further proceedings.

REVERSED and REMANDED.

HOBSON, Acting C. J., OTT, J., and CHEATWOOD, J. CLIFFORD, Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Milton Lawson LUKE and Raymond M. Hilverson, Appellees. Ronnie STACEY, Appellant, v. STATE of Florida, Appellee. Henry WOLF, Appellant, v. STATE of Florida, Appellee. Dennis Michael PICKLE, Appellant, v. STATE of Florida, Appellee. John Bruce WEST, Appellant, v. STATE of Florida, Appellee. Gilbert HILL, Appellant, v. STATE of Florida, Appellee.
    Nos. LL-402, LL-419, MM-420, NN-258, OO-132 and OO-134.
    District Court of Appeal of Florida, First District.
    April 10, 1980.
    Rehearing Denied May 16, 1980.

      Robert L. Shevin, Atty. Gen., Richard W. Prospect and Doris E. Jenkins, Asst. Attys. Gen., for appellant in No. LL-402.
    Gary R. Dunham, Asst. Public Defender, Starke, for appellees in No. LL-402.
    Shon A. Saxon and Gary R. Dunham, Asst. Public Defenders, Starke, for appellants in Nos. MM-419, MM-420, NN-258, 00-132 and 00-134.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect and Doris E. Jenkins, Asst. Attys. Gen., for appellees in Nos. MM-419, MM-420, NN-258, 00-132 and 00-134.
   PER CURIAM.

The issue presented is whether the placement of prisoners, suspected of criminal activity, in administrative confinement pending the ultimate disposition of the charges, coupled with prosecutorial delay, violates the due process and equal protection rights to such an extent as to justify dismissal of pending criminal charges. We think not.

Luke and Hilverson are both state prisoners. They allegedly committed an escape December 7, 1977. Both defendants had been recaptured by December 14, 1977, and were placed in administrative confinement. An information charging escape was filed August 21, 1978. First appearance and arraignment were held August 28, 1978.

The evidence presented revealed that pursuant to prison policy, inmates known or believed to have committed a criminal offense are placed in administrative confinement. In these types of cases, disciplinary hearings do not precede administrative confinement. Privileges enjoyed by inmates in the general population are either discontinued or circumscribed for those inmates placed in administrative confinement. While the inmates suspected of criminal activity remain in administrative confinement, prison officials investigate the alleged incidents and eventually report the matters to the state attorney. There is no time limitation as to when the matters are reported to the state attorney following completion of the prison investigation. The inmates remain in administrative confinement until final disposition of the charges, i. e., until a decision not to prosecute is reached or until the matters are disposed of by the courts. An inmate grievance procedure does exist to rectify unjust confinement in administrative confinement.

Luke and Hilverson filed separate motions to dismiss arguing that placement in administrative confinement coupled with the pre-indictment delay, deprived them of their rights guaranteed by Florida Rules of Criminal Procedure, violated their due process and equal protection rights, and infringed upon their right to effective assistance of counsel. The trial court granted the motions to dismiss finding that the cumulative effect of the aforementioned prison policy and the delay of the state’s attorney in filing such charges defeated the fundamental due process rights of the defendants to such an extent that dismissal of the charges was required. Similar motions to dismiss were filed by the defendants, also state prisoners, in Case Numbers MM-419, MM — 420, NN-258, 00-132, and 00-134. After these motions were denied, the defendants pleaded nolo contendere to the respective charges, each reserving the right to appeal the denial of his motion to dismiss.

We find that dismissal of the charges herein was improper. Placement of inmates in administrative confinement does not per se violate the constitution. See Sands v. Wainwright, 357 F.Supp. 1062, 1094 (M.D.Fla.1973), vacated and remanded (for consideration by a three-judge district court), 491 F.2d 417 (5th Cir. 1973), cert denied, sub nom., Guajardo v. Estelle, 416 U.S. 992, 90 S.Ct. 2403, 40 L.Ed.2d 771 (1974). If placement in administrative confinement were improper, an administrative remedy was available to the defendants to challenge such confinement. The defendants did not utilize this administrative remedy to challenge their placement in administrative confinement. Further, prosecuto-rial delay, if within the statute of limitations, does not per se justify dismissal of charges. State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), appeal dismissed, 352 So.2d 175 (Fla.1977), cert, dismissed, 358 So.2d 134 (Fla.1978). In each of the present cases, there was no showing of actual prejudice to the defendants sufficient to support a due process violation based upon prosecu-torial delay. We find no basis to support dismissal of the charges herein.

Accordingly, the order granting the motions to dismiss in Case No. LL-402 is reversed and the cause is remanded for further proceedings. Since the motions to dismiss were properly denied, the judgments and sentences imposed in Case Nos. MM-419, MM — 420, NN-258, 00-132, and 00-134 are each affirmed.

MILLS, C. J., and McCORD and LARRY G. SMITH, JJ., concur.


author: HOBSON, Judge.

text:
    Tim ALBRITTON and Jean Albritton, husband and wife, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Cheryl Lee Dannels, Appellees.
    No. 79-195.
    District Court of Appeal of Florida, Second District.
    April 11, 1980.
    Rehearing Denied May 8, 1980.

      I. W. Williams and Douglas A. Mulligan of Williams & Milton, St. Petersburg, for appellants.
    H. Shelton Philips of Kaleel & Kaleel, St. Petersburg, for appellees.
   HOBSON, Judge.

Appellants Tim and Jean Albritton, plaintiffs below, appeal an amended final judgment entered after a jury trial against ap-pellees State Farm Mutual Automobile Insurance Company and Cheryl Lee Dannels, awarding Tim Albritton $4,200 and awarding Jean Albritton zero dollars on her derivative suit for loss of consortium and services. We reverse the portion of the final judgment which awarded zero dollars on the derivative suit.

Appellants present three issues for resolution:

1)Whether the jury finding that Tim Albritton did not suffer permanent disability was contrary to the manifest weight of the evidence;
2) Whether the jury finding that Tim Albritton was 30% at fault was contrary to the manifest weight of the evidence; and
3) Whether the damage awards were inadequate, specifically the award of zero dollars to Jean Albritton for loss of services and consortium.

As to the first issue, we have carefully noted the testimony of the three medical experts and find that there was substantial and competent evidence presented to sustain the jury’s finding of less than permanent injury. Under the test of Griffis v. Hill, 230 So.2d 143 (Fla.1970), we find that a jury of reasonable persons could have returned the instant verdict.

We reach the same conclusion as to the issue of Albritton’s comparative negligence in the accident. Finding substantial and competent evidence to support that portion of the verdict, we decline to disturb it.

The issue of Jean Albritton’s derivative suit for loss of services and consortium necessitates a different conclusion. Although it is the rule that the wife’s derivative claim is barred where the husband’s cause of action has been terminated by an adverse judgment on the merits, the converse is not necessarily the case. When a jury finds, as in the instant case, that a husband has sustained injuries due to the negligence of a third party, the wife must present competent testimony concerning the impact which the accident had on the marital relationship and, more specifically, evidence concerning her loss of consortium.

We have examined the record and find that Jean Albritton presented unrebut-ted testimony that her husband’s injuries caused rather drastic changes in the parties’ lifestyle and sexual relationship. She testified that, prior to the accident in which her husband sustained injuries, he had performed many of the household chores, including shopping, housework and extensive child care. She further stated that the parties’ sexual relationship was “just wonderful” before the accident. In contrast, Mrs. Albritton claimed that after the accident her husband complained of severe pain and she was forced to take on his care as well as the housework and child care, which was difficult due to her poor health. When asked if the parties’ sex life was affected after the husband’s injuries, Mrs. Albritton answered, “There never was any more.” In addition, she stated on cross-examination that her husband had been unable to retain his former job as bus driver because of his injuries and had gone to Texas three months before the trial to look for work. She stated that she and the children remained behind in Florida and that she had spent one week in Texas with her husband since his move.

In view of the testimony offered by Mrs. Albritton and unrebutted by appellees, we are of the opinion that Mrs. Albritton was entitled to receive at least nominal damages. Shaw v. Peterson, 376 So.2d 433 (Fla. 1st DCA 1979); Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA 1978). For this reason, we reverse the zero dollar award to Mrs. Albritton and remand this cause for a new trial solely on the issue of damages as they pertain to her action for loss of consortium and services.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

GRIMES, C. J., and SCHEB, J., concur.

      . Gates v. Foley, 247 So.2d 40 (Fla.1971); Davis v. Asbell, 328 So.2d 204 (Fla. 1st DCA 1976).

      . The Florida Supreme Court defined “consortium” in Gates v. Foley as “the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation. Consortium means much more than mere sexual relation and consists, also, of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage.” 247 So.2d at 43.


text:
    Erwin KOLTAY, Appellant, v. INDEX-TEL, INC., Appellee.
    No. 79-694.
    District Court of Appeal of Florida, Second District.
    April 11, 1980.
    George J. Felos, St. Petersburg, for appellant.
    Hugh E. Reams and Richard A. Schlosser of Goldner, Reams, Marger, Davis, Piper & Kiernan, P. A., St. Petersburg, for appellee.
   PER CURIAM.

Appellant, defendant below, appeals from a final judgment of the trial court finding him indebted to the appellee, plaintiff below, in an action for an accounting. The trial judge, in rendering his final judgment, was acting within the proper scope of his duties as the trier of fact and of law and we, therefore, affirm.

The final judgment recognized appellant’s right to jury trial on his remaining counterclaim and specifically refrained from addressing the merits of that counterclaim. We also note with interest that the trial court specifically advises the parties in the final judgment that had the plaintiff in this cause been the individuals against whom appellant has a separate pending cause of action in the court below, rather than the corporate entity which was actually plaintiff below, the judgment rendered may well have been different in scope and effect.

Finally, within one year after entry of the final judgment, but after filing his notice of appeal to this court, the appellant timely filed with the trial court a motion to set aside final judgment pursuant to Florida Rule of Civil Procedure 1.540(b), alleging misconduct of the plaintiff. The trial court entered an order on its own motion, correctly finding that it was without jurisdiction of the matter since the filing of the notice of appeal had lodged jurisdiction in this court. It then ordered the clerk of the lower court to supplement the record on appeal in this cause with the motion to set aside final judgment together with the supporting affidavit. That supplemented record was filed with this court on February 5, 1980. No further action was taken and oral argument on the issues raised by the notice of appeal was held by this court on April 1, 1980, without any mention being made of the motion to set aside judgment. A written motion to relinquish jurisdiction was filed with this court on April 1, 1980, requesting us to relinquish jurisdiction to the trial court for determination of the motion to set aside judgment. This court is not by this opinion passing on the validity or propriety of the motion to set aside judgment, and by this affirmance jurisdiction will again be vested in the trial court for that determination when the mandate from this court is entered.

AFFIRMED.

SCHEB, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.


text:
    Marian KALBAUGH, Appellant, v. Elizabeth H. EASTELL and United States Fidelity and Guaranty, Appellees.
    Nos. 79-174, 79-247.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Rehearing Denied May 21, 1980.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, Dickman & Barnett, Coral Gables, for appellant.
    Wicker, Smith, Blomquist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellees.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. Ethcher v. Blitch, 381 So.2d 1119 (Fla. 1st DCA 1979); Hartford Fire Ins. Co. v. Spreen, 343 So.2d 649 (Fla. 3d DCA 1977); Horjales v. Loeb, 291 So.2d 92 (Fla. 3d DCA 1974); Nationwide Mutual Fire Ins. Co. v. Holmes, 352 So.2d 1233 (Fla. 4th DCA 1977).


text:
    Mathew SHELTON, Appellant, v. WISCONSIN MOTOR CORPORATION and Kut-Kwick Corporation, Appellees.
    Nos. 79-493, 79-494.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Rehearing Denied May 21, 1980.

      High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellant.
    Lane, Mitchell & Harris and Byron B. Mathews, Jr., Floyd, Pearson, Stewart, Richman, Greer & Weil and Wm. Bruce Harper, Jr., Miami, for appellees.
    Before NESBITT and BASKIN, JJ., and CHARLES A. CARROLL (Ret,), Associate Judge.
   PER CURIAM.

The plaintiff below, Mathew Shelton, seeks reversal of separate judgments predicated on directed verdicts granted at trial, at the close of the presentation of the plaintiff’s evidence, in favor of the defendant Wisconsin Motor Corporation (Wisconsin) and in favor of the defendant Kut-Kwick Corporation (Kut-Kwick). The judgment in favor of Wisconsin is affirmed. The judgment in favor of Kut-Kwick is reversed, with remand of the cause for a new trial as to that defendant.

The plaintiff, in the course of his employment by the Florida Department of Transportation, was injured while operating a heavy duty lawn mower. An eye of the plaintiff was damaged when struck by the starter rope in the course of starting the engine of the mower.

By an amended complaint the plaintiff sought damages from the defendants. The defendant Wisconsin, the manufacturer of the engine, was charged with negligence in the design and manufacture of the engine. There was no evidence of a defect in the engine. The trial court was of the view that it was not negligence as a matter of law to manufacture and sell such an engine to be started by use of a rope rather than by an electric starter. The lawn mower, with an engine in such form, was in accordance with the specifications upon which it had been purchased by the State. We have considered the contentions of the appellant and hold the court did not commit error in granting judgment in favor of the defendant Wisconsin.

The defendant Kut-Kwick was the manufacturer and seller of the lawn mower, on which said engine supplied the power. A directed verdict was granted in favor of defendant Kut-Kwick on the ground of absence of jurisdiction over Kut-Kwick, a foreign corporation. That holding of want of jurisdiction over Kut-Kwick was error, in view of the showing as to said defendant doing business in Florida, tested in the light of Electro Engineering Products Company, Inc. v. Lewis, 352 So.2d 862 (Fla.1977). No useful purpose would be served by reciting here the facts relating thereto as disclosed in the record.

That brings us to the question of whether the judgment in favor of Kut-Kwick is entitled to be affirmed on some ground other than that upon which the court granted the directed verdict, such as for a want of evidence upon which the jury could have found negligence on the part of Kut-Kwick in accord with the plaintiff’s allegation that the lawn mower, with such engine, was improperly and negligently designed so as to constitute a danger to a user. We hold the judgment is not entitled to support on that basis. This is so because as to Kut-Kwick, which had manufactured and assembled the mower with such engine, there was credible evidence from which the jury could have found that while such an engine with a rope starter would not, as such, be a dangerous instrument, because the place on the mower where Kut-Kwick had put the engine was such that the position or stance which one starting the engine thereby was required to take created a danger to such person from the rope used in starting it. Accordingly, we hold the directed verdict and judgment thereon in favor of Kut-Kwick should not have been granted.

On appeal No. 79-493 the judgment entered in favor of defendant Wisconsin is affirmed. On appeal No. 79-494 the judgment entered in favor of the defendant Kut-Kwick is reversed, and the cause is remanded for a new trial as to the defendant Kut-Kwick Corporation.


text:
    Maria BELLO, as Administratrix of the Estate of Eduvigis Suris, Deceased, and the Estate of Juan Suris, Deceased, Appellant, v. HOLYOKE MUTUAL FIRE INSURANCE COMPANY IN SALEM, MASS., a Foreign Corporation, Appellee.
    No. 79-689.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valeruis and Jospeh H. Lowe, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

A review of the record demonstrates that the trial court correctly determined that appellee, Holyoke Mutual Fire Insurance Company, was entitled to summary judgment in its favor, as a matter of law; there were no genuine issues of material fact left unresolved. See Midwest Mutual Insurance Company v. Santiesteban, 287 So.2d 665 (Fla.1973); Sandron Corporation v. Utica Mutual Insurance Company, 360 So.2d 477 (Fla. 3d DCA 1978); U.S. Liability Insurance Company v. Bove, 347 So.2d 678 (Fla. 3d DCA 1977); Stewart v. State Farm Mutual Insurance Company, 316 So.2d 598 (Fla. 1st DCA 1975).

Affirmed.


text:
    The KEYES COMPANY, a Florida Corporation, Sophy Farkas, Lori Rutkin and Frank Arata, Appellants, v. Gilbert SENS, Appellee.
    No. 79-1058.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Lapidus & Stettin and Richard L. Lapi-dus, Miami, for appellants.
    Charles L. Neustein, Miami, for appellee.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the defendants below from an adverse judgment entered on jury verdicts. The appellee Gilbert Sens filed an action against the appellants the Keyes Company (Keyes) and three of its employees, Sophy Farkas, Lori Rutkin and Frank Arata.

Summarized, the facts alleged were that Keyes agreed to act as plaintiff’s broker-agent for the purchase by him of a certain property, as evidence by a written contract (copy of which was attached) in which the plaintiff agreed to pay, and Keyes agreed to accept from plaintiff a commission (in the form of a second mortgage) for so acting in said transaction, in an amount equal to 7V2% of the unpaid balance on the outstanding first mortgage on the property. Following certain negotiations the owner agreed to sell on terms more favorable to the plaintiff purchaser than those originally specified; that thereupon the plaintiff agreed to the purchase, and a written contract was prepared, which was to be signed by the parties the following day; that the next morning, at a divisional meeting of sales personnel, when defendants knew of the plaintiff’s transaction, the defendant Arata who was presiding at the meeting informed the sales employees present as to the terms on which the property could be purchased; that two of said salespersons, Keyes’ employees, the defendants Farkas and Rutkin, knowing of plaintiff’s transaction, purchased the property, thereby preventing plaintiff from purchasing the same, which it was alleged had a value in excess of that for which he was to have purchased the property. Based thereon the complaint, in separate counts, charged the defendants with malicious interference with an advantageous business relationship, breach of fiduciary duty and unjust enrichment, and sought compensatory and punitive damages.

On trial of the case the jury was provided with separate verdict forms for use as to the four defendants, in event the jury should find in favor of the plaintiff and against the defendants. The jury returned four verdicts, against Keyes for $50,000 for compensatory damages, and against the individual defendants for varying amounts of punitive damages with no compensatory damages. The defendants objected to the verdicts. When the jury was polled the foreman announced, “Our thoughts were that — that the company would pay the compensatory damages and the individuals would pay the punitive damages.” The court then rejected the verdicts, and directed the jury to deliberate further with regard to the verdicts, and gave the jury the following instruction:

“In view of the fact that the foreman and the other members of the jury have said they did not understand my instructions, I am going to instruct you again.
“You cannot have punitive damages unless you have compensatory damages. “The amounts, of course, are in your hands and no one else’s hands, but the amount of compensatory can be any amount you want, but you cannot have punitive unless you have compensatory, nor can you have compensatory against one person and punitive against another person, because here again, it’s the same thing. You can’t have punitive unless you have compensatory.
“So, you can go back and decide exactly what you want to do, who, if anyone, you are going to assess for compensatory damages, who, if any you are going to assess with punitive. None for both, no punitive. I mean, on anybody else you have compensatory. Is that plain now?”

No objection was made on behalf of the defendants to the above instructions to the jury. After further deliberation the jury again returned four verdicts. The one against Keyes was for $25,000 compensatory damages and $25,000 punitive damages. The verdict against Farkas was for $5,000 compensatory damages and $5,000 punitive damages. The verdict against Rutkin was $5,000 compensatory damages and $5,000 punitive damages. The verdict against Arata was $10,000 compensatory damages and $10,000 punitive damages.

No objection to those verdicts was made on behalf of the defendants. The verdicts were published and the jury was discharged. After the jury had been discharged the defendants’ counsel objected and moved for mistrial which was denied. Subsequently judgment was entered on the verdicts.

The verdicts and the judgment based thereon were contrary to law in two respects. It is the established rule that when defendants are jointly liable the ver-diet for the damages should run against all, and under the law the jury was not permitted to apportion the compensatory damages among them. Jones v. Griffin, 103 Fla. 745, 138 So. 38 (1931); Davis v. First National Bank & Trust Co. in Orlando, 112 Fla. 485, 150 So. 633 (1933); Kellenberger v. Widner, 159 So.2d 267 (Fla. 2d DCA 1964); Licen-berg v. Issen, 318 So.2d 386 (Fla.1975); Moore v. St. Cloud Utilities, 337 So.2d 982 (Fla. 4th DCA 1976). Fla.Std. Jury Instr. (Civ.) 9.11(b) is designed to so inform the jury. In this ease that instruction was not requested, nor was it given by the court. See Miami Coca-Cola Bottling Co. v. Mahlo, 45 So.2d 119, 120-121 (Fla.1950).

Secondly, as to defendant Keyes whose liability for the acts of its employees was vicarious, based on respondeat superior, Keyes was not subject to a verdict or judgment for compensatory damages in excess of the amount of damages determined and found against its defendant-employees, the active tortfeasors. Cf. Williams v. Hines, 80 Fla. 690, 86 So. 695 (1920); Colie v. Atlantic Coast Line Railroad Company, 153 Fla. 258, 14 So.2d 422 (1943); Hinton v. Iowa National Mutual Insurance Company, 317 So.2d 832 (Fla. 2d DCA 1975).

On this appeal from the judgment, the appellee-plaintiff argues that notwithstanding that the judgment may be legally defective in the above respects, it should be affirmed because defendants did not object to the instruction given to the jury prior to rendition of the final verdicts, and because of failure of defendants to object to said verdicts prior to the discharge of the jury, citing cases holding that errors in judgments predicated on verdicts that were incorrect in form, or which were inconsistent, are not preserved for review on appeal where such verdicts were not objected to prior to discharge of the jury.

We hold those arguments of the ap-pellee are not controlling in this case. The defects of these verdicts were not merely as to form, or for inconsistency. The judgment was predicated on verdict awards that were contrary to law, and not permissible by law, so as to cause the judgment based thereon to constitute fundamental error.

The appellants argue that the unlawful verdicts were the result of the independently given instruction to the jury, which appellants contend was inadequate to inform the jury as to the law with reference to such damage awards, and was such as to have confused the jury in such regard. Appellants then argue that review of the error of the court thereon is not precluded on appeal, for want of objection thereto, when such jury instruction was given by the court independently, citing Wofford Beach Hotel, Inc. v. Glass, 170 So.2d 62, 64 (Fla. 3d DCA 1965). There the court, after noting the rule of civil procedure by which a jury instruction not objected to is not subject to review on appeal, said:

“Nevertheless, we hold that an erroneously given instruction based upon the introduction of an inapplicable ordinance was such fundamental error that a fair trial could not have resulted and a new trial must be granted. In Louisville & Nashville R. R. v. Flournoy, Fla.App.1961, 136 So.2d 32, it was held that when a court gives independent charges to the jury, the party adversely affected is not required, prior to retirement of the jury to consider its verdict, to note objection to a charge as to which he had no notice prior to the time it was given to the jury. This is especially true where the charge is of such nature as is likely to lead to confusion or create an unfavorable impression not readily removable from the minds of the jurors.”

What was said there in Wofford is applicable here with regard to the jury instruction independently given by the court prior to the rendition of the final verdicts.

The rule that questions not presented to and ruled upon by the trial court are not reviewable on appeal is subject to the exception that an appellate court may consider and rule upon a constitutional or fundamental error when first raised or revealed on the record on appeal. Love V. Hannah, 72 So.2d 39, 43 (Fla.1934); Ewing v. Dupee, 104 So.2d 672 (Fla. 2d DCA 1958); Florio v. State ex rel. Epperson, 119 So.2d 305, 309 (Fla. 2d DCA 1960); In re: Kion-ka’s Estate, 121 So.2d 644, 647 (Fla.1960); Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970); American Home Assurance Co. v. Keller Industries, 347 So.2d 767, 772 (Fla. 3d DCA 1977). In Sanford v. Rubin, supra, the court said:

“ ‘Fundamental error,’ which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. The Appellate Court should exercise its discretion under the doctrine of fundamental error very guardedly.”

The error of imposing on a defendant compensatory damages which are not authorized by law and which are contrary to law is one that goes to the ultimate merits of the cause. Cf., American Home Assurance Co. v. Keller Industries, supra. Moreover, such an error is one of constitutional dimension, for the reason that enforcement of such a judgment would constitute a taking of property from the defendant without due process of law. By so ruling with reference to the judgment in this case we do not hold or imply that judgments based on verdicts that are incorrect in form, or which are inconsistent, or which may be inadequate or excessive in amount, present fundamental error. See, for example, cases cited in footnote 3, supra.

Accordingly, we hold that the interest of justice would best be served in this case by a new trial on damages.

The judgment is reversed, and the cause is remanded for new trial on damages only.

      . With certain exceptions not applicable here. See Harrington v. Bowman, 106 Fla. 86, 143 So. 651 (1932); Lehman v. Spencer Ladd’s Inc., 182 So.2d 402 (Fla. 1966).

      . The fact that the verdicts fixed different amounts of punitive damages against the several defendants is of no concern, since such is legally permissible. Lehman v. Spencer Ladd's Inc., 182 So.2d 402 (Fla. 1966).

        .Higbee v. Dorigo, 66 So.2d 684, 685 (Fla. 1953); Isenberg v. Ortona Park Recreational Center, Inc., 160 So.2d 132 (Fla. 1st DCA 1964); Lindquist v. Covert, 279 So.2d 44 (Fla. 4th DCA 1972); Savoca v. Sherry Frontenac Hotel Operating Co., Inc., 346 So.2d 1207 (Fla. 3d DCA 1977); Wiggs and Maaie Construction v. Harris, 348 So.2d 914 (Fla. 1st DCA 1977).


author: HENDRY, Judge.

text:
    Eugene ATKINS, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 79-1333.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Rehearing Denied May 12, 1980.

      Joseph H. Weil, Miami, for appellant.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   HENDRY, Judge.

This is an appeal from a final judgment entered by the circuit court in a declaratory judgment action brought by the insurer against its insured. Appellee-insurer, Allstate Insurance Company, had filed the action following the entry of an uninsured motorist arbitration award for the insured by an accident claims tribunal under the auspices of the American Arbitration Association. The complaint alleged, inter alia, that the arbitrators’ award was improper in that it appeared to duplicate benefits previously received by the insured from personal injury protection benefits, medical payments benefits and Medicare, and that, therefore, the insured was entitled to have a portion of the arbitration award relating to the medical expenses vacated; that the insurer was in doubt as to its rights under the insurance policy and Section 627.727, Florida Statutes, regarding the question of duplication of benefits and sought a declaration that it was not liable to Mr. Atkins for any sum in excess of a stated amount. Appellant/defendant answered and counterclaimed, admitting that the insurer had paid personal injury protection benefits and medical payments benefits, and claiming that the original arbitration award should be confirmed and that Mr. Atkins’ right to said award in full be declared. The cause proceeded to non-jury trial, and the trial court concluded that benefits received by an insured under the Federal Social Security Medicare Program were deductible from an arbitration award for uninsured motorist coverage under Section 627.727(1), Florida Statutes. We find to the contrary, and reverse and remand the cause.

The issue then, is whether Medicare payments (as provided for by the Health Insurance for the Aged and Disabled Act of 1965, Section 1395, et seq., 42 U.S.C.A.) are the type of benefits which should be deducted from an award in favor of an insured against an insurer under uninsured motorist coverage — in order to avoid “duplication” under Section 627.727, Florida Statutes (1973). Section 627.727(1) reads in pertinent part:

“The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured under, any workmen’s compensation law, personal injury protection benefits, disability benefits law, or any similar law

Appellee-insurer has maintained throughout the proceedings that Medicare benefits should be considered as embodied under the “disability benefits” or “similar law” phraseology of the statutory language; thereby, the uninsured motorist coverage may not duplicate Medicare payment benefits.

We must first determine whether Medicare constitutes “disability benefits” or comes under “any similar law.” This is a question of first impression in Florida, but the issue has been well settled in other jurisdictions that Medicare is social welfare legislation passed by the Congress to aid the general health and welfare of those over 65 years of age and is not an “insurance program” within the ordinary meaning of the words. See, Witherspoon v. St. Paul Fire and Marine Insurance Company, 86 Wash.2d 641, 548 P.2d 302 (1976); Wo-jtkowski v. Hartford Accident and Indemnity Company, 27 Ariz.App. 497, 556 P.2d 798 (1976); Jones v. Aetna Casualty & Surety Company, 497 S.W.2d 809 (Mo.App.1973); Imvris v. Michigan Millers Mutual Insurance Company, 39 Mieh.App. 406, 198 N.W.2d 36 (1972). The Imvris court succinctly stated at 38, and we adhere to rationale of that opinion:

“It is true that there are aspects of the Medicare program which are similar to an insurance reimbursement plan. But the basic fact is that Medicare is a social welfare program and not an insurance or reimbursement plan within the everyday and ordinary meaning of these terms. Medicare was added to the existing Social Security laws in 1965 and as yet there have been few, if any, judicial decisions defining its scope ... In Flem-ming v. Nestor, 363 U.S. 603 [80 S.Ct. 1367, 1372; 4 L.Ed.2d 1435, 1443-1444] (1960), the United States Supreme Court stated that the social security system may be accurately described as a form of social insurance enacted pursuant to Congress’ power to spend money in the aid of the general welfare. In discussing the act, the Court said (p. 610 [80 S.Ct. 1367]): ‘It is apparent that the noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.”

The Court of Appeals of Arizona in Wojt-kowski, supra, referring with approval to the reasoning of the holdings in Jones and Imvris, states at 800:

“Buttressing the basic concept of the Im-vris court that Medicare provisions are social insurance as distinguished, from contractual insurance are certain Congressional enunciations of the purpose of Medicare, first enacted in 1965 . Medicare is expressly made inapplicable to 42 U.S.C.A. §§ 2651-2653, which permits the United States to recover from a tort feasor for medical expenses which it was obliged to provide the injured party, leading to the conclusion that if the government considered itself to be an insurer, it would have retained the right afforded by the statute rather than having excluded Medicare. See Carey v. Finch, 316 F.Supp. 1263 (D.C.La.1970) and note the unanimous opinion in Philpott et a 1. v. Essex County Welfare Board, 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973), holding that the New Jersey welfare agency was barred from recovery of advance payments of monthly disability assistance to recipient in view of 42 U.S.C.A. § 407, providing against transferability or assignability, etc., of future disability insurance benefits because of the Supremacy Clause. Note also the extensive discussions of Health Care in 35 Law and Contemporary Problems, pp. 667 et seq., as to alternatives to the present provisions of Medicare. ‘Current discussions of national health insurance are based, first, on a commitment that medical care should be available to everybody, and, second, on a belief that the costs of medical care should be met through group payment. The commitment to availability reflects a basic social policy stemming from widespread belief that no one in modern society should suffer because medical care is not available when and where it is needed.’ ”

A more recent decision of the Supreme Court of Washington, Ciminski v. SCI Corporation, 90 Wash.2d 802, 585 P.2d 1182 (1978), deals with the question of deductibility of Part A Medicare benefits from a personal injury recovery under Washington’s collateral source rule, and determined that the trial court properly refused to reduce the jury’s assessment of damages by the amount of the Medicare payment, quoting from the Witherspoon holding in support of its decision. Although none of the cases cited in this opinion deal with the issue in light of a statute such as our Section 627.727, we believe that the principle is the same — -that is, that the underlying purpose of Medicare precludes its being considered anything but a social welfare program. Furthermore, we reason that had the Florida Legislature intended that Medicare payments be included in those enumerated in the statutory provision for non-duplication, it would have stated so explicitly and specifically.

The trial court’s order cites the case of Travelers Insurance Company v. Varley, 421 S.W.2d 478 (Tex.Civ.App.1967) in support of its holding; however, the facts and rationale are entirely distinguishable. The court held that where the health and accident policy was issued eight years before the establishment of Medicare obligated the insurer to pay charges made by the hospital to the insured, the insurer was liable for hospital expenses even though no demand for payment was made on the insured by the hospital and charges were paid by Medicare — but that insured was not entitled to recover under “Hospital Expense” provisions of the policy for the room charge in excess of the room allowance, actual expenses under miscellaneous fees, or major medical expenses, since he did not pay such charges. The insurance contract between the appellant and the appellee in the case at bar was entered into long after the enactment of Medicare. And as a matter of public policy, we hold that the portion of the policy which tracks the “nonduplication” portion of Section 627.727(1) is not enforceable in the manner urged by appel-lee for the same reasons that we find that Section 627.727(1) does not implicitly include Medicare payments.

In summary, our conclusion is that Medicare is social insurance enacted by the Congress to aid the general welfare but cannot be analogized to any type of medical insurance program or medical reimbursement plan, where each party’s rights are determined by a contract of insurance and premium payments of the insured.

Accordingly, the instant cause is reversed and remanded with directions to proceed in light of the principles herein discussed.

Reversed and remanded.

      . As a point of interest, the Wojtkowski court did make clear the distinctions as to Part A Medicare, 42 U.S.C.A. §§ 1395c-1395i-l and Part B Medicare, 42 U.S.C.A. §§ 1395j et seq. in holding that payments from Part A coverage were not within the terms of the certain insurance policy exclusions whereas payments under Part B coverage constituted “group insur-anee” within the exclusionary provisions of the policy. (Part A, hospital and related benefits is incorporated within the existing social security patterns and contributions are universal and mandatory; while Part B is the supplementary medical benefits plan and is voluntary and open to any person aged 65 or over irrespective of social security status.)


text:
    Connie TUTKALUK, Appellant, v. John RYAN, James McDougald, and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 78-2280.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    Rehearing Denied May 27, 1980.
    David L. Kahn of Kahn & Gustafson, Fort Lauderdale, for appellant.
    G. William Allen, Jr. of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellee, State Farm.
   PER CURIAM.

This cause is affirmed on the authority of Reid v. State Farm Fire & Casualty Co., 352 So.2d 1172 (Fla.1977) and Gibson v. State Farm Mutual Automobile Insurance Co., 378 So.2d 875 (Fla. 2nd DCA 1979). We agree with the well reasoned opinion of Judge Grimes in Gibson.

MOORE and GLICKSTEIN, JJ., and JOHN J. UPCHURCH, IV, Associate Judge, concur.


text:
    Doreen BARR, Appellant, v. STATE of Florida, Appellee.
    No. 78-2460.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    Rehearing Denied May 21, 1980.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Lorrie Robinson and Ellen Morris, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

In a rather unusual proceeding, the appellant’s probation was revoked whereupon she was adjudicated guilty of a felony and sentenced. She immediately filed a motion to correct sentence allegedly pursuant to Fla.R.Crim.P. 3.850. The trial court never entered an order on this motion. The appellant then filed a timely notice of appeal from the felony judgment and sentence.

Because we find no error in the judgment and sentence, we affirm. Due to the lack of an order pertaining to the motion filed pursuant to Fla.R.Crim.P. 3.850, we refrain from any ruling in this regard.

AFFIRMED.

MOORE, BERANEK and HURLEY, JJ., concur.


text:
    STATE of Florida ex rel. Ellison Owen COPELAND, Petitioner, v. The Honorable W. C. WILLIAMS, III, Respondent.
    No. 79-316.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    Rehearing Denied May 21, 1980.
    Joseph H. Ficarrotta, Tampa, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

Petition for Writ of Prohibition is DENIED.

LETTS and MOORE, JJ., concur.

DAUKSCH, J., dissents without opinion.


author:
LARRY G. SMITH, Judge.
      ERVIN, Judge,

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. The FLORIDA PSYCHIATRIC SOCIETY, INC., and John L. Mason, M.D., Appellees.
    No. NN-238.
    District Court of Appeal of Florida, First District.
    April 16, 1980.

      James G. Mahorner, Tallahassee, for appellant.
    Kenneth F. Hoffman, of Rogers, Towers, Bailey, Jones & Gay, Tallahassee, for appel-lees.
   LARRY G. SMITH, Judge.

The Department of Health and Rehabilitative Services appeals a final order, entered in a rule challenge proceeding filed by appellee, Florida Psychiatric Services, Inc., and Dr. John L. Mason, M.D., which found the Department’s proposed rules 10D-73 and 10E-4.12(a)(b)(4) invalid for lack of legislative authority. The issue presented on appeal is whether the Department is authorized by law to provide rules for the establishment, regulation and licensing of “crisis stabilization” and “intensive residential treatment” facilities, as alternatives to inpatient care under the Florida Mental Health Act, also known as the Baker Act. We adopt the findings, reasoning and conclusions of the hearing officer who determined that such alternative facilities are not within the statutory authority conferred upon the Department. The order appealed from is therefore affirmed.

The proposed rules designate the statutes relied upon as authority for their enactment and as the law being implemented . Upon examination we have concluded, as did the hearing officer, that the statutes do not authorize the new facilities. The first of the statutes cited in the rule, Section 381.031(l)(g)(ll), gives the Department power to adopt rules “consistent with law regulating . . . [the] execution of any other purpose or intent of the laws enacted for the protection of the public health of Florida” (emphasis supplied). This provision confers no powers to regulate or carry out programs not otherwise provided for by substantive law. So far as licensing of facilities is concerned, the scope of the foregoing subsection is definitely limited by the next subsection, (h), of Section 381.031(1), which provides in part:

“. . . nothing herein shall be construed to authorize the department to require a permit or license, unless such requirement is specifically provided by law.” (Section 381.031(l)(h), Florida Statutes).

As interpreted by the hearing officer, the Department has no authority to license facilities unless it is specifically given that authority by statute. We agree that such authority cannot be found in the general rule-making provisions of Chapter 381, Florida Statutes.

The hearing officer found no authority for the new facilities in Chapter 400, Florida Statutes, nor do we. Section 400.-021(4) provides that facilities authorized under that Chapter (nursing homes and related health care facilities), “shall not include any place providing care and treatment primarily for the a cutely ill” (emphasis supplied). A great deal of the testimony before the hearing officer dealt with the differentiation, in a medical sense, of one who is “chronically ill”, as opposed to “acutely ill”. After hearing extensive testimony, the hearing officer found that while a majority of mental, emotional and behavioral illnesses are of a chronic nature, the typical Baker Act mental patient is a person primarily experiencing acute manifestations or exacerbations of a mental, emotional or behavioral illness, and is therefore in a state of “acute illness”. We agree with the hearing officer’s analysis of the problem, because it is clear from the evidence that the condition of the patient at the moment mental health services are needed is the critical factor that governs how, by whom, and where such services should be provided. As one witness aptly expressed it, “acute is acute”. The rules under consideration provide that the proposed new facilities are for those “who are acutely emotionally disturbed and who need immediate care” (Rule 10D-73.021(a)), and for “persons in such acute distress that their capacity to cope with their life circumstances has been suddenly and completely exceeded” (Rule 10D-73.022(b)(3)). Since facilities for treatment of the acutely ill are not authorized under Chapter 400, the proposed licensure and regulation of the new facilities is not authorized by that Chapter.

We next consider Section 394.453, Florida Statutes (1977), the “legislative intent” portion of the Baker Act, which contains the following provision:

“. . . The Department is directed to implement and administer mental health programs as authorized and approved by the Legislature, based on the department’s annual program budget . . ”.

We agree with the hearing officer’s interpretation of the above statute, that only programs “authorized and approved by the Legislature” may be implemented and administered by the Department. Further, the additional language “based upon the department’s annual program budget”, does not mean that authorization and approval of new programs is to be accomplished simply by including them as a budgetary item for the Department in the annual Appropriations Act passed by the legislature. Item 616 of the 1978 Appropriations Act includes “up to $1,707,408 for 75% start-up funding of crisis stabilization programs and short-term residential programs”. It is clear, however, that the Appropriations Act cannot be used as authority for the establishment and licensing of new programs and facilities not otherwise authorized by substantive law. Advisory Opinion to the Governor, 239 So.2d 1 (Fla.1970); Dickinson v. Stone, 251 So.2d 268 (Fla.1978); and De partment of Administration v. Horne, 269 So.2d 659 (Fla.1972).

We have examined the remaining statutory provisions primarily relied upon by the Department, and while we agree that the Department is given broad authority to carry out the purposes and intent of the legislature with respect to mentally ill persons, we find nothing in the statutes authorizing programs or facilities to which the rules adopted by the Department can reasonably be related. Citing Florida Beverage Corporation v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975), the. Department argues that the “mental health law rule-making power” (appellant’s brief, page 6), provides authority for the Department to make all rules reasonably related to the mental health program provided for under Chapter 394, Florida Statutes. In the Wynne case, rules enacted by the Division of Beverage, Department of Business Regulation, were found to be directly related to statutory provisions permitting and regulating the purchase of alcoholic beverages by vendors from other vendors. The Department urges the application of the principle stated in Wynne, supra, that where the empowering provision of a statute states simply that an agency may “make such rules and regulations as may be necessary to carry out the provisions of this Act”, the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious. The first difficulty we have with the Department’s argument is the absence of specific “enabling legislation”. The next difficulty we have is that in Chapter 394, the Baker Act, provision is specifically made for the emergency and temporary treatment of mentally ill persons. The statutes spell out with particularity the criteria which must be met in order for persons to be eligible for such treatment, and the procedures which must be followed under a variety of circumstances and conditions, including emergency admission (Section 394.463(1)), court-ordered evaluation (Section 394.-463(2)), voluntary admissions (Section 394.-465), and involuntary hospitalization (Section 394.467). The rules under attack do not purport simply to carry out the purposes and intentions of the Baker Act as expressed in these statutory provisions. To the contrary, the rules themselves in effect attempt to amend the Act, by diverting persons eligible for services and treatment under the Act into an entirely different evaluation and treatment program. Under the proposed rule, persons who meet the statutory criteria for admission to a receiving facility on emergency conditions (Section 394.463(l)(a)), would first be reviewed or screened by the crisis stabilization unit (or by the emergency service of a community mental health center or clinic), and then referred to treatment on an out-patient or in-patient basis as determined by the crisis stabilization unit (or the emergency service). In this connection, one of the witnesses who testified for appellee-Florida Psychiatric Society stated that the concerns of the 450-member society included the prospect that “acute medical emergencies will be managed by minimally skilled lay people in substandard facilities”. Our examination of the rules discloses radical departures from the procedures established under the prevailing law. For example, Section 394.463(l)(c), Florida Statutes (1977), provides that a patient who is admitted for emergency examination and treatment by a receiving facility shall be examined by a physician without unnecessary delay, and may be given such treatment as is indicated by good medical practice. In the proposed facilities, a person admitted must be “seen” by a physician within 24 hours of admission. Meanwhile, a person admitted to the crisis stabilization unit may receive a “physical assessment”, defined by the rules as a general physical by one who may be a licensed practical nurse; and a physical assessment, as well as a “mental status evaluation”, may be administered in the intensive residential treatment unit. There is no requirement that a patient be immediately released if hospitalization or further evaluation is not needed, as under Section 394.463(l)(d), Florida Statutes (1977). Furthermore, the rules are lacking in procedures for court determination of the necessity for treatment, which may include security rooms and partial or total restraints; and we think they are. further lacking in considerations of due process for protection of the patient such as have been carefully incorporated into the Baker Act legislation. No doubt the proposed facilities have been given long and careful study, their existence and operation may be fully justified by a genuine need, and they may serve the laudable objective of diverting mentally ill persons from unnecessary and expensive hospitalization. On the other hand, there was testimony from a Florida psychiatrist of 17 years experience that while the rules are proposed as a cost-saving, cost-effective device, they will actually

“. . . dilute away the available state funds for treating the truly mentally ill individual. Instead, the funds will be diluted out to a general area of emotionally upset people, some of whom are psychotic and were intended by the legislature to be managed under the Baker Act”.

We are not concerned, nor was the hearing officer, with the merit or lack of merit in the proposed rules, nor whether operation of the proposed facilities would be beneficial to the public. These are questions for the legislature, not the courts. We are concerned only with statutory authority or its absence. Our comparison of the rules and the statutes indicates that the rules do not merely implement, they effectively abrogate the statutes, to a marked extent. Administrative regulations must be consistent with the statutes under which they are promulgated, and they may not amend, add to, or repeal the statute. 1 Fla.Jur.2d, Administrative Law, Section 55.

The Department has no “inherent” authority, in the mental health field or any other, but only those powers specifically granted by statute. St. Regis Paper Company v. State, 231 So.2d 797 (Fla. 1st DCA 1970), affirmed 257 So.2d 253 (Fla. 1971). We cannot agree with the Department’s position that the power to “designate” facilities (Section 394.457, Florida Statutes (1977)), is the power to “license”. The Department’s reliance upon State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979), is misplaced. In that case the power to issue teacher’s certificates was not challenged; only the power to revoke certificates, once issued, was under attack. This court found that the unquestioned power to issue carried with it the power to specify the terms and conditions under which the certificates could be revoked.

Finally, the Department's argument for broad, virtually unlimited power in the mental health field is substantially weakened by the existence of specific legislative authorization for various kinds of medical and health care facilities. Statutory provision is made for licensing of nursing homes under Chapter 400, and for hospitals under Chapter 395. There is a provision for residential care for psychotic or severely emotionally disturbed children under Section 394.4781. There is also specific authority for the licensing and regulation of drug abuse treatment and education centers under Chapter 397, Florida Statutes.

We agree with the hearing officer’s conclusion that the various provisions of Rule 10D-73 are not severable, and that both rules must be declared invalid in their entirety. The order appealed is therefore affirmed.

BOOTH, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I disagree with the majority’s narrow interpretation of the word “designate.” I think, within the general context of Part I of Chapter 394 (Sections 394.451-394.4781), the word is synonymous with license. Designate is variously defined as “to call by distinctive title, term, or expression . to indicate and set apart for a specific purpose, office, or duty.” Webster’s New Collegiate Dictionary (1976). License is defined as “a permission granted by competent authority to engage in a business or occupation . . . .” Id. Crisis stabilization and intensive residential treatment facilities are classified under the Baker Act as receiving facilities, meaning facilities designated by the Department to receive patients under emergency conditions and to provide short-term treatment. Section 394.455(10), Florida Statutes (1977). The Department’s power to designate such facilities is clearly provided by statute. See Sections 394.457(8) and .461(2).

Its authority to designate was created by the enactment of the Baker Act in 1971, and it continued without any suggestion of alteration until 1977, when the legislature, describing the duties and powers of the Department, provided: “Nothing herein shall be construed to authorize the department to require a permit or license, unless such requirement is specifically provided by law.” (e. s.) Chapter 77-258, Section 1, Laws of Florida. In my view the Department’s power to set apart such treatment facilities for the purposes described in the rules has been specifically delegated to it by the above cited statutes under the Baker Act. In the absence of clear, unambiguous language that the legislature intended to remove the Department’s authority to designate such facilities, HRS’s power to so act, in my judgment, remains unrestricted.

While the 1977 legislature amended Section 381.031 by including the licensing provisions, it, and subsequent sessions of the legislature, left intact the Department’s power to designate. I think it inconceivable that the legislature intended to revoke the Department’s power to designate community treatment facilities by its later language generally describing the Department’s powers. Statutes on the same subject should be harmonized when possible, but a statute dealing specifically with the subject takes precedence over another statute covering the same subject in general terms. State v. Young, 357 So.2d 416 (Fla. 2d DCA 1978). Moreover, in the event of conflict, the special statute will prevail in the absence of a clear legislative intent.to the contrary. St. Petersburg v. Carter, 39 So.2d 804 (Fla.1949).

Alternatively, I think at the very most, the licensing provisions in the rules could be stricken without invalidating the very justifiable programs created in them. It is a general rule of statutory interpretation that courts will uphold the remainder if that which is left is complete in itself and wholly independent of that rejected, assuming that the remainder is consistent with the intent of the legislature. Dade County v. Keyes, 141 So.2d 819 (Fla. 3d DCA 1962).

Finally, I see none of the due process problems envisioned by the majority. As observed in the hearing officer’s findings, clients are not admitted directly to such community facilities, but are referred from other facilities, clinics or hospitals, or by court order, as required by the Baker Act. Sections 394.463, .465 and .467 are the heart of the Act and encompass all due process substantive and procedural safeguards for patients referred to HRS mental health facilities.

Since I find abundant legislative authority authorizing the Department to provide rules for the establishment, regulation and licensing of these facilities, I would reverse the order of the hearing officer and sustain as valid all the proposed rules.

      . Administrative Procedures Act, Section 120.-54(4), Florida Statutes.

      . Rule 10D-73 provides for the development, licensure and operation of two different types of facilities to be used as alternatives to inpatient care under the provisions of the Florida Mental Health Act, the Baker Act, Chapter 394, Florida Statutes. One facility is a “crisis stabilization facility”, to provide emergency evaluation, temporary shelter and crisis-oriented treatment for primarily chronically mentally ill individuals who are in an acutely disturbed state and who may require care and treatment under Chapter 394, Part 1, Florida Statutes. Another facility, to be known as an “intensive residential treatment facility”, would provide short term intensive residential care and treatment to acutely disturbed, mentally ill individuals.

      . Proposed Rule 10E-412(8)(b)(4) expands an existing rule relating to Baker Act funding by establishing the fiscal management and funding process for the two alternative facilities proposed by Rule 10D-73.

      .Rule 10D-73 refers to rule-making authority of the Department under Sections 381.-031(l)(g)l 1, 394.457(5), 394.78(1), (2)(b), 400.-23(2), and 893.01, Florida Statutes (1977); and as the laws being implemented Sections 394.-453, 394.455(8), (10), 394.457(2), 394.66(1), (2), (3), (4), 394.78(2)(a), 400.011, 400.041(3), 400.-062(1), (2), (3), (5), (6), 400.141, 400.141(2), 400.23(1), (2)(a), (b), (c) and (d), Florida Statutes (1977).
      Rule 10E-4.12(8)(b)4 refers to rule-making authority under Sections 394.457(5), 394.78(1), (2)(b), and 381.031 (l)(g) 11, Florida Statutes (1977); and as the laws being implemented, Sections 394.66(1), (2), and 394.457(1), (2), Florida Statutes (1977).

      . Section 394.463, Florida Statutes (1977), sub-paragraph (l)(a) Criteria: “A person may be admitted to a receiving facility on emergency conditions if there is reason to believe that he is mentally ill and because of his illness is:
      “1. Likely to injure himself or others if allowed to remain at liberty; or
      “2. In need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf, and an ex parte order is obtained authorizing the admission.”


author: BOOTH, Judge.

text:
    RELIABLE ELECTRICAL DISTRIBUTION COMPANY, INC., Appellant, v. WALTER E. HELLER AND COMPANY OF LOUISIANA, INC., Appellee.
    No. SS-437.
    District Court of Appeal of Florida, First District.
    April 16, 1980.
    Rehearing Denied May 21, 1980.
    Louis F. Ray, Jr., Pensacola, for appellant.
    Jeffrey C. Bassett of Barron, Redding, Boggs, Hughes & Fite, and Franklin R. Harrison, Panama City, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the trial court denying the motion of defendant, Reliable Electrical Distribution Company, Inc. [REDCO], for change of venue. The facts are that REDCO, a Florida corporation, and Carl J. Acton and Walter B. McCain signed accounts financing security agreements whereby they guaranteed the payment of any debts of Panama Electrical Distributors, Inc. [Panama] owed to Walter E. Heller and Company [Heller], a Louisiana corporation. Thereafter, Panama, a Bay County corporation, defaulted; and that company is now in bankruptcy.

Suit was brought in Bay County against REDCO, Acton and McCain on the three guarantee agreements. Motion to transfer that portion of the action represented by Count 1 of the complaint was made on the grounds that REDCO had no office in Bay County; that no cause of action accrued in Bay County and no property in litigation is located there. There is no contention that the individual defendants are not residents of and properly sued in Bay County. The record shows that the guarantee agreement which is the basis of Count I of the complaint was executed August 22, 1974, in Bay County, in the name “Reliable Electrical Distribution Company of Panama City, Inc.” On appeal to this court, however, REDCO’s affidavit that it has no office in Bay County is uncontested. REDCO further points out that the agreement provides for payments to be made at REDCO’s office.

Appellant REDCO contends that it is entitled to be sued in Escambia County under Florida Statutes, § 47.051, which provides:

“Actions against domestic corporations shall be brought only in the county or district where such corporation has, or usually keeps, an office for transaction of its customary business, or where the cause of action accrued, or where the property in litigation is located . . ”

.Appellee, on the other hand, contends that venue is controlled by Florida Statutes, § 47.021, which provides as follows

“Actions against two or more defendants residing in different counties or districts may be brought in any county or district in which any defendant resides.”

The question is whether the right of a corporate defendant to be sued in the county where it does business controls over the right of the plaintiff in a suit against two or more defendants residing in different counties or districts to bring suit in any county or district in which any defendant resides under § 47.021. This question was answered by the Florida Supreme Court in Enfinger v. Baxley, 96 So.2d 538, 540 (Fla. 1957), wherein the court held that § 47.021 prevails over, and is a qualification of, the venue privilege afforded under § 47.051, as follows:

“Section 46.02 [now F.S. § 47.021] places a qualification upon the venue privilege granted to an individual defendant by Section 46.01 [now F.S. § 47.011] and to a corporate defendant by Section 46.04 [now F.S. § 47.051] . . . . It gives a plaintiff the right to make the final choice of the forum in which his suit will be tried as between the conflicting interests of defendants whose venue privileges, as granted by Section 46.01 and/or Section 46.04, do not fall within the same county. The applicability of the statute is clear where the venue privileges of the defendants are co-equal and are not coexistent in the same county. . .”

Accord, Coggin Pontiac, Inc. v. Putnam Auto Sales, Inc., 278 So.2d 647 (Fla. 1st DCA 1973); Equipment Company of America v. Davis, 223 So.2d 94 (Fla. 3d DCA 1969).

Accordingly, the judgment below is AFFIRMED.

ROBERT P. SMITH and SHAW, JJ., concur.

      . Counts II and III of the complaint stated the same cause of action against Defendants Acton and McCain respectively.