author: HENDRY, Judge.

text:
    Leonard ADLER, Appellant, v. Stephen Paul ADLER, as Personal Representative of the Estate of Dorothy E. Adler, Deceased, Appellee.
    Nos. 81-1269, 81-1270 and 81-1271.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Richard H. W. Maloy, Coral Gables, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Bertha Claire Lee and Ray H. Pearson, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   HENDRY, Judge.

Dorothy and Leonard Adler were divorced in October, 1978 after thirty-eight years of marriage. Due to Dorothy’s declining health, the proceedings were bifurcated with jurisdiction retained by the trial court to determine property rights, alimony, attorney’s fees and costs. Mrs. Adler died in November, 1978 and her son (appellee herein), as personal representative of her estate, was substituted in her place. Thereafter, Mr. Adler moved to amend his answer to assert a counterclaim alleging a special equity in jointly held assets, but the motion was denied.

Mr. Adler now seeks review of various provisions of the final judgment. The majority of the contentions raised fall within the trial court’s discretion and may not be overturned by this court. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Herzog v. Herzog, 346 So.2d 56 (Fla.1977). With the exception of one error in the order to which appellee has confessed, the judgment is affirmed. This error and the attorney’s fee award require some discussion.

The trial court’s award of $40,000 in attorney’s fees to his wife is challenged by Mr. Adler on the basis that her ability to pay for this service was equal to or greater than his. We find no abuse of discretion in the trial court’s award. One spouse need not be completely unable to pay attorney’s fees before the other spouse may be required to pay such fees. Canakaris v. Canakaris, supra; Wilds v. Wilds, 399 So.2d 1038 (Fla. 3d DCA 1981). Nor do we find the amount of fees excessive in light of the results achieved and the respective financial circumstances of the parties. Posner v. Posner, 315 So.2d 175 (Fla.1975); Meltzer v. Meltzer, 400 So.2d 32 (Fla. 3d DCA 1981); Adams v. Adams, 376 So.2d 1204 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1109 (Fla.1980).

Mr. Adler also alleges that his wife’s estate is not a “party” within the terms of Section 61.16, Florida Statutes, so as to be entitled to an award of fees for services rendered. We disagree. Under this statute, a party entitled to an award of attorney’s fees must be one who is either obligated by a dissolution judgment to pay certain sums to the other party, or to receive payment from the other party. Price v. Price, 382 So.2d 433 (Fla. 1st DCA 1980). As can readily be seen, Mrs. Adler’s estate was bound by the final judgment of dissolution, in this case, to receive payment from the other party. Upon Mrs. Adler's death, her personal representative was substituted as party plaintiff and succeeded to her right to receive attorney’s fees for all legal services performed on her behalf both before and after her death. See Sec. 733.612(20), Fla. Stat.

Secondly, Mr. Adler contends that the trial court miscalculated in the division of jointly owned property. Indeed, an error of $1,285.68 has been acknowledged by ap-pellee with respect to the property division. Thus, Mrs. Adler’s estate is due $141,366.11, not $142,651.79 as the trial court ordered. Accordingly, the final judgment is modified to reflect a $1,285.68 reduction in the estate’s share of the parties’ jointly owned property. In all other respects, the judgment appealed is affirmed.

Affirmed as modified.

      . Certiorari review of the order was denied by this court in Adler v. Adler, 376 So.2d 85 (Fla. 3d DCA 1979).


source: Caselaw Access Project

author: THOMPSON, Judge. WENTWORTH, Judge, THOMPSON, Judge. WENTWORTH, Judge,

license: Public Domain

text:
    NEWMAN HEATING & BOILER REPAIR, INC., Appellant, v. James E. NEWMAN, Jr., Appellee.
    No. AC-412.
    District Court of Appeal of Florida, First District.
    March 18, 1982.
    Rehearing Denied Sept. 1, 1982.

      Victor M. Halbach, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.
    Stephen J. Pajcic, III, of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) challenge a compensation order contending that the deputy commissioner (deputy) erred in awarding the claimant permanent total disability (PTD).

The claimant is a welder and boilermaker who is the president and sole owner of the employer corporation. He sustained a serious compensable injury to his right knee in September of 1975 that has necessitated two operations and has resulted in a 50% permanent partial disability (PPD) of his right leg. Claimant had serious pre-exist-ing long-term back trouble for which he had been hospitalized several times. Claimant had continued to draw a salary from the employer corporation to and including the hearing date. His salary in 1978 and 1979 was higher than in prior years.

The deputy awarded the claimant PTD benefits on grounds that his back condition had merged with the compensable knee injury, rendering him totally disabled. The E/C contends that the deputy erred in not limiting claimant to the benefits payable for a scheduled injury to his right leg. For a number of years the Florida Supreme Court has said that diminished earning capacity is not a criterion for determining a compensation award in a case involving a scheduled injury. Mims and Thomas Manufacturing Co. v. Ferguson, 340 So.2d 920 (Fla. 1976); Jewell v. Wood, 130 So.2d 277 (Fla. 1961); Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla. 1959). The only exceptions to this rule are where the scheduled injury causes disability or incapacity in some other part of the body, as set forth in Kashin v. Food Fair, 97 So.2d 609 (Fla. 1957), or where claimant’s disability is total rather than partial so that § 440.15(3), Fla. Stat., governing PPD, does not apply. Henderson v. Sol Walker Co., 138 So.2d 323 (Fla. 1962). Here, there is no substantial competent medical evidence that the scheduled injury caused disability or incapacity in some other part of the body so as to bring this case within the exception set forth in Kashin. In response to a question whether claimant’s back pain was related to his knee problem, the claimant’s treating physician, Dr. McClear, testified “I believe it could be.” When asked whether the claimant’s knee injury would have any effect on claimant’s back, Dr. McClear responded “I think it certainly could, yes.” In Kashin, the doctor was of the opinion that the claimant “was suffering from a cardiac condition which was, in his opinion, probably brought on by the loss of blood and shock at the time of the original injury.” (emphasis supplied) The court held that such a nebulous and speculative conclusion as to the causal relationship between the accident and the ultimate cardiac condition did not constitute substantial competent evidence that the industrial accident caused the cardiac condition. The language used by the doctor in Kashin was even less speculative and nebulous than that used by Dr. McClear. In this case there is no substantial competent medical evidence to show a relationship between the back trouble complained of by the claimant and his industrial accident. The lack of such evidence, together with the evidence that his back trouble had long pre-existed the industrial accident, makes it clear that this case cannot fit within the Kashin exception to the general rule on scheduled injuries. Additionally, the claimant’s scheduled injury has not brought about a total disability which would permit a finding of PTD under the decision in the Henderson case. The alleged total disability found by the deputy was not based on the industrial accident and injury but on a combination of his industrial injury and his previous back problems. The back trouble cannot be considered unless it was related to or caused by the industrial accident. In addition, the claimant is still working and drawing a base salary. This fact generally indicates only PPD, not PTD. The award of PTD is reversed and the cause is remanded to the deputy with instructions to enter an award for PPD in accordance with the scheduled injury the claimant received.

MILLS, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

The record in my opinion substantiates the deputy’s conclusion that “the compensa-ble physical impairment resulting from the aforesaid direct injury and dual aggravations merged with the pre-existing physical impairment of Claimant’s two aforesaid diseases to render Claimant permanently totally disabled ... as the result of a total loss of wage earning capacity in the open labor market.” Because the basis for the award is economic and not anatomic loss, and because claimant’s wages from his dissolving business do not support existence of open market earning capacity (also negated by other evidence), I would affirm the award in this case without reaching the question of whether the injury was scheduled or body-as-a-whole as a result of aggravation of pre-existing disease.

ON PETITION FOR REHEARING

THOMPSON, Judge.

The claimant filed a motion for rehearing contending that in reversing the deputy’s award of permanent total disability (PTD) benefits, this court overlooked its decision in Dade Federal Savings & Loan Association v. Smith, 403 So.2d 995 (Fla. 1st DCA 1981), and the Supreme Court case of Wright v. Gulf and Western Food Products, 401 So.2d 1316 (Fla. 1981). Although Dade Federal was not cited in claimant’s original brief, it was not overlooked. Neither was Wright, which was cited and extensively argued. It might appear from a reading of the original majority opinion in this case that there is conflict between this case and the decisions in Dade Federal and Wright, but a review of those cases and similar eases reveal factual distinctions that render them inapplicable to this case.

The language in the original opinion that may have created some apparent conflict, to wit: “The alleged total disability found by the deputy was not based on the industrial accident and injury but on a combination of his industrial injury and his previous back problems. The back trouble cannot be considered unless it was related to or caused by the industrial accident.” is stricken as it may be construed to mean that a combination of the factors which existed in Wright and Dade Federal would not support a finding of PTD or permanent partial disability greater than the scheduled disability.

Here, the claimant is a skilled welder and boiler maker who is president and sole owner of the employer corporation. Although claimant has only an eleventh grade education, he has a “high average” I.Q., and sufficient business acumen to have organized and successfully operated his own closely held corporation for some 20 years. He has extensive experience in repairing, servicing and replacing boilers, in selling and installing boilers and related equipment, and in managing his business and supervising his employees in the performance of their duties. The claimant has continued to operate his business since sustaining his industrial injury in 1975, and has continued to earn an income from his business. Although claimant’s - pre-existing physical condition, in combination with the disability resulting from his industrial accident, has rendered him incapable of engaging in many of the physical activities which he previously performed in the operation of his business, his condition has not prevented him from operating the business, from supervising and directing the activities of his employees, or from selling boilers and related equipment.

Wright and other similar cases are factually distinguishable because in those cases a combination of factors including physical condition, age, industrial history, education, job skills, and inability to obtain work combined to result in total loss of wage earning capacity making an award of PTD appropriate.

Neither this case nor Wright, Dade Federal, or other similar cases involved true merger as defined in Chaffee v. Miami Transfer Company, Inc., 288 So.2d 209 (Fla. 1974). The sole question presented for decision in this case is whether or not the claimant, by reason of a combination of the various factors influencing employability, sustained a total loss of wage earning capacity that would entitle him to a PTD rating.

To summarize briefly, the courts have generally approved PTD awards when the claimant’s industrial injury, in combination with other factors such as age, education, lack of job skills, training, and pre-existing physical conditions, together with inability to obtain employment, renders the claimant PTD. In Wright, the claimant “was a 60-year-old black man with no formal education who started working on a farm at the age of eight, who could neither read nor write, could not make change, and had been, missing his left arm since the age of fifteen.” Id. at 1317. He was unemployable in the existing labor market. The Supreme Court held that the combination of all the factors which influenced the claimant’s unemployability supported the finding of the industrial claims judge that the claimant was PTD. The following quotation from Wright, in which the Supreme Court reviewed similar cases in support of its decision, reveals that those cases involved facts relating to age, education, training, ability to perform only manual labor, and physical conditions including amputation that render the claimant unemployable and PTD:

In Henderson v. Sol Walker and Company, 138 So.2d 323 (Fla. 1962), this Court stated that loss of wage-earning capacity must be determined in accordance with the facts of the case and that relevant considerations included physical condition, age, industrial history, education, and inability to obtain work. In that case, the claimant was an illiterate fifty-seven-year-old black man with a second-grade education and no formal or technical training. The work-related injury he suffered resulted in amputations of his right foot, his sole physical impairment. However, we held that the combination of all factors, including the inability of the employment service to place claimant in a job in his employment category, made an award of permanent total disability appropriate.
In other cases, we have reached a similar conclusion. In Florida State Turnpike Authority v. Garvey, 234 So.2d 354 (Fla. 1970), we held that a work-related injury to the knee creating a twenty-five per cent functional disability merged with previous disabilities (amputations of right hand and left leg) to result in a permanent total disability. In Hogan v. Central Sand Company, 141 So.2d 576 (Fla. 1962), the claimant, who was an illiterate laborer capable of performing only manual labor, suffered a work-related injury resulting in amputation of the right leg below the knee. In reversing the order of the Commission awarding an eighty-five per cent wage-earning capacity disability, we held that a permanent total disability was appropriate since claimant fit into a class embracing those who could not uninterruptedly do even light work owing to physical limitations. In Ross v. Roy, 234 So.2d 99 (Fla. 1970), we reversed a decision by the Commission which failed to award a permanent total disability. Claimant, who was sixty-three years old and had only a third-grade education, had suffered a work-related injury to his leg, which caused him to need the assistance of a cane for ambulation and precluded his standing for more than fifteen or twenty minutes at a time. We held, upon review of the totality of the evidence, including the nature and extent of anatomical disability as it related to age, education, and employment history (manual typedabor), that a “reasonable stable labor market commensurate with claimant’s ability to perform regular employment services is unlikely to exist”. Id. at 101. (emphasis supplied)

Id. at 1317-18.

In Dade Federal, the claimant was 56 years old, was obese weighing 280 pounds, had degenerative arthritis in her knees, required the assistance of a cane to walk prior to her industrial accident, had experience only as a cleaning woman, and after the industrial accident was in such condition that she could not perform even light and sedentary employment. Although she had only a 5% disability of the leg from the industrial accident, this court upheld the deputy’s finding that she sustained a 75% disability of the body as a whole based on loss of wage earning capacity.

Here, the claimant does not approach having the degree of physical or educational handicaps and the lack of job skills which rendered the claimants in the above cited cases totally or almost totally disabled because of loss of wage earning capacity. Nor does he have the lack of employability which the court found in all cases allowing PTD. On the contrary, the claimant was employable and, in fact, was employed.

For the foregoing reasons Wright, Dade Federal, and similar cases relied on by the appellee are not applicable and the petition for rehearing is denied.

MILLS, J., concurs.

WENTWORTH, J., dissents.

WENTWORTH, Judge,

dissenting.

I would affirm because I believe we misconceive our function when we disregard those parts of the voluminous record which support the deputy’s determinations that claimant has “a total loss of wage earning capacity in the open labor market”; that current monies from his boiler business were largely distributions upon liquidation having no probative effect other than sheltered short term employment in the business he was attempting to sell; that his job search showed he was not “reluctant to re-enter the job market”; and that employer/carrier’s remedy was against the Special Disability Trust Fund for any excess compensation attributable to claimant’s pre-ex-isting osteoarthritis and degenerative disc disease.

The term “merger” is in my opinion properly used in this case in both the “general sense of a combination ... of all the factors which influence claimant’s employability,” and in the medical sense based on the physician’s statement that claimant’s particular “impairment of the right lower extremity affects his total body function,” and resulted in a permanent change in gait and dual aggravations described in the order.

      . Among relevant factors were his age (61), lack of high school education, and inability to walk unaided or perform any of the physical activity which constituted his lifelong method of operating the boiler maker’s business. Cf. Larson, Workmen’s Compensation Law, § 57.-51, et seq.

      . Evidence includes eighteen pages of testimony by an accountant experienced as a business consultant, concluding from analysis of claimant’s company records that to pay his salary since surgery in 1979 “He has just borrowed money from the company . . . it’s certainly not for what he’s doing for the company now. It has to [have] been on past good will.”

      .Some twenty applications for varied jobs over a year’s time achieved no results, and a vocational expert opined that “he has no potential to compete in [the local] market.”

      . Wright v. Gulf and Western Food Products, 401 So.2d 1316 (Fla. 1981); Dade Federal Savings & Loan Association v. Smith, 403 So.2d 995 (Fla. 1st DCA 1981).


author: SCHWARTZ, Judge.

text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. The WACKENHUT CORPORATION, Appellee.
    No. 81-764.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied Sept. 28, 1982.
    Ress, Gomez, Rosenberg & Howland and Mark J. Mintz, North Miami, Papy, Poole, Weissenborn & Papy, and Sheridan K. Weissenborn, Miami, for appellant.
    Richard H. W. Maloy & Associates, Coral Gables, for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   SCHWARTZ, Judge.

On the authority of Sterling Ins. Co. v. Hughes, 187 So.2d 898 (Fla. 3d DCA 1966), cert. denied, 194 So.2d 622 (Fla.1966) and Travelers Ins. Co. v. Wilson, 261 So.2d 545 (Fla. 4th DCA 1972), we affirm the conclusion that Wackenhut’s liability carrier is liable for the punitive damages recovered in Canty v. Wackenhut Corp., 311 So.2d 808 (Fla. 3d DCA 1975), cert. discharged, 359 So.2d 430 (Fla.1978). See also, Duke v. Hoch, 468 F.2d 973 (5th Cir. 1972); Morrison v. Hugger, 369 So.2d 614 (Fla. 2d DCA 1979).

Since the Canty case was tried and the insured’s liability for punitive damages was fixed without reference to the later decided case of Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981), we conclude, although Aetna argues otherwise, that that decision has no effect upon the coverage issue before us. Cf. Jessup v. Redondo, 394 So.2d 1031 (Fla. 3d DCA 1981).

Affirmed.


text:
    ST. JOE PAPER COMPANY and Theodore B. Gould, Appellants, v. METROPOLITAN DADE COUNTY, Florida, a political subdivision of the State of Florida, Merritt Steirheim, County Manager of Dade County, Florida, A. H. Blake, Property Appraiser, Dade County, Florida, B. W. Williams, Jr., Acting Tax Collector for Dade County, Florida, State of Florida, and Harry L. Coe, Director of the Department of Revenue, State of Florida, Appellees.
    No. 81-1258.
    District Court of Appeal of Florida, Third District.
    May 25, 1982.
    Rehearing Denied Sept. 27, 1982.

      Valdes-Fauli, Richardson & Cobb and Harley S. Tropin and Christine M. Arguello, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and James K. Kracht, Asst. County Atty., for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   HENDRY, Judge.

The primary issue posed by this appeal is whether the untimely filing of a petition with the property appraisal adjustment board protesting an ad valorem tax assessment bars a taxpayer from thereafter seeking judicial redress. We hold that a taxpayer who files an untimely petition with the board seeking review of a tax assessment is not thereafter precluded from filing an action in circuit court, subject only to the limitations imposed under section 194.-171, Florida Statutes (1979).

The facts pertaining to this controversy are as follows. In November, 1979, appellants filed a petition with the Dade County Property Appraisal Adjustment Board (Board) pursuant to section 194.011, Florida Statutes (1979), challenging an increased tax assessment on three parcels located in downtown Miami. The Board refused to grant the appellants a hearing and summarily rejected the petition as untimely on the ground that it was filed more than three months after notice of the increase. See sec. 194.011(3)(d). Subsequent to receipt of the Board’s order denying the petition, and within the time limits imposed by section 194.171, the appellants filed suit in circuit court contesting the 1979 assessments. The County, appellee herein, answered and asserted as an affirmative defense that the court lacked subject matter jurisdiction. The County later filed a motion for summary judgment on the basis that appellants were barred from proceeding in circuit court since they had failed to exhaust their administrative remedies by timely filing a petition with the Board. On May 22, 1981, the circuit court entered final summary judgment dismissing the action with prejudice. The plaintiff-taxpayers appeal contending that resort to administrative remedies under Chapter 194 is optional and need not be exhausted prior to proceeding in circuit court. We agree and reverse.

It is well-settled that the circuit courts have original and exclusive jurisdiction of all cases involving the legality of any tax assessment. Sec. 26.012(2)(e), Fla. Stat. (1981); Williams v. Law, 868 So.2d 1285 (Fla.1979); Department of Revenue v. Amrep Corp., 358 So.2d 1343 (Fla.1978). Similarly, the Florida Constitution, Article V, Section 20(c)(3), provides, inter alia, that “until changed by general law” circuit courts shall have exclusive original jurisdiction “in all cases involving legality of any tax assessment or toll.” In the absence of a general law expressly changing this result, the circuit courts retain jurisdiction to determine contested tax assessment actions such as the dispute in the instant case. Chapter 194 not only does not alter the circuit court’s jurisdiction in this respect, but actually affirms it by providing in section 194.032(3), that “nothing herein shall preclude an aggrieved taxpayer from contesting his assessment in the manner provided by s. 194.171.”

An aggrieved taxpayer is not required to exhaust or even utilize the administrative procedure provided by Chapter 194. In lieu of administrative remedies, a taxpayer may directly challenge the appraiser’s preliminary assessment in circuit court since a hearing before the Board is a mere administrative option as opposed to a judicial prerequisite. Secs. 194.032(3) and 194.171, Fla.Stat. (1979); Bystrom v. Equitable Life Assurance Society, 416 So.2d 1133 (Fla. 3d DCA 1982) (Case Nos. 80-26, 80-66, opinion filed March 31, 1982). Appellants were, therefore, entitled to invoke the original jurisdiction of the circuit court, subject only to the restrictions of section 194.171. Since they had the choice of either administrative review before the Board or de novo review in circuit court, appellants were clearly not required to exhaust administrative remedies prior to seeking judicial relief. Cf. Fredericks v. Blake, 382 So.2d 368 (Fla. 3d DCA 1980) (taxpayer who failed to demonstrate special injury or allege violation of specific provisions of the Florida Constitution relating to the county’s taxing power in his complaint to invalidate preliminary tax assessment rolls, lacked standing to invoke the original jurisdiction of circuit court without first exhausting administrative remedies).

The only remaining question is whether by filing a petition, albeit untimely, with the Board, appellants made an election of remedies precluding them from seeking relief in the courts. We answer this query in the negative. Appellants’ belated attempt to petition the Board constituted an illusory remedy which is not a valid election prohibiting them, from thereafter instituting suit:

[F]or an action to constitute “election of remedies”, there must be two or more available remedies open to plaintiff at the time he institutes the first action. The remedies sought must not only be inconsistent but they must also be coexistent. If the remedy sought in the first instance does not exist at the time it is sought, then there is no election of remedies.... If, in the first instance, plaintiff proceeds upon an assumed remedy which does not exist at the time, and such effort proves abortive, he is not precluded from resorting to another remedy.

Perry v. Benson, 94 So.2d 819, 821 (Fla. 1957) (citations omitted). See also Stone v. City of Maitland, 446 F.2d 83 (5th Cir. 1971) (federal court suit challenging constitutionality of zoning ordinances not barred by res judicata or election of remedies where Florida state court dismissed case on a procedural flaw without entering a judgment on the merits); City National Bank of Miami v. Blake, 257 So.2d 264 (Fla. 3d DCA 1972) (taxpayers who received adverse result in arbitration action under section 194.033, Florida Statutes [repealed, Ch. 71-371, Laws of Fla.] with respect to tax assessment on hotel improvements, were not barred by estoppel or election of remedies and could resort to court action where they did not assert inconsistent positions and assessors were unable to show detrimental reliance).

In summary, we hold that appellants were not required to exhaust administrative remedies prior to seeking judicial relief, and that their untimely filing of a petition with the Board did not serve as an election of remedies so as to preclude them from thereafter filing suit in circuit court.

On the basis of our resolution of this issue, we do not decide the remaining contentions raised by appellants.

The summary judgment is reversed and the cause remanded to the court below for further proceedings.

Reversed and remanded.

      . § 194.01 l(3)(d), Fla.Stat. (1979), provides:
      Such petition may be filed at any time during the taxable year prior to the later of:
      1. July 15, or
      2. The 17th day following the mailing of notice by the property appraiser as provided in subsection (2).

      . § 194.171 Circuit court to have original jurisdiction in tax cases.—
      (1) The circuit courts have original jurisdiction at law of all matters relating to property taxation. Venue is in the county where the property is located.
      (2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2).
      (3) Before a taxpayer may bring an action to contest a tax assessment, he shall pay to the collector the amount of the tax which he admits in good faith to be owing. The collector shall issue a receipt for the payment, and the taxpayer shall file the receipt with his complaint.
      (4) No action to contest a tax assessment may be maintained unless all taxes on the property which the taxpayer in good faith admits to be owing, including taxes assessed in years after the action is brought, are paid before they become delinquent.
      (5) Pending actions to contest tax assessments shall be dismissed unless the taxpayer shall have paid to the collector all taxes on the property which he in good faith admits to be owing, including taxes assessed in years after the action is brought.
      (6)The clerk of the circuit court shall, after deducting his statutory fee, pay to the collector all taxes which have been admitted to be due and have been deposited in the registry of the court in connection with pending actions to contest tax assessments.

      . In granting summary judgment for the County, the circuit court relied upon Strickland v. Sarabay Country Club, Inc., 301 So.2d 129 (Fla. 2d DCA 1974) to support the proposition that a taxpayer must exhaust administrative remedies prior to filing an action in court. We find Strickland, which construed Chapter 194 prior to the 1974 amendment which added the language in section 194.032(3) that “nothing herein shall preclude an aggrieved taxpayer from contesting his assessment in the manner provided by s. 194.171,” giving taxpayers the express right to institute judicial proceedings without prior resort to administrative remedies, inapposite to the present case.


author: PER CURIAM.

text:
    BORDEN, INC., and Crystal Springs Water Co., Appellants, v. Eddie Lee YOUNG and Deborah Young, his wife, Appellees.
    No. 81-61.
    District Court of Appeal of Florida, Third District.
    June 8, 1982.
    Rehearing Denied Sept. 24, 1982.
    Papy, Poole, Weissenborn & Papy and Sheridan K. Weissenborn, Coral Gables, for appellants.
    Horton, Perse & Ginsberg and Arnold Ginsberg, Richard Reynolds, Miami, for ap-pellees.
    Before HUBBART, C.J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Cloud v. Fallis, 110 So.2d 669 (Fla. 1959); Rivera v. White, 386 So.2d 1233 (Fla. 3d DCA 1980); Sawyer v. Dawson, 215 So.2d 764 (Fla. 3d DCA 1968).


author: NESBITT, Judge. BASKIN, Judge NESBITT, Judge.

text:
    F. Allen BLISS, Appellant, v. Oscar CARMONA, Appellee.
    No. 81-1676.
    District Court of Appeal of Florida, Third District.
    June 15, 1982.
    Rehearing Denied Sept. 14, 1982.
    Therrel, Baisden, Stanton, Wood & Sett-lin; Daniels & Hicks and Mark Hicks and Elizabeth K. Clarke, Miami, for appellant.
    Walters, Costanzo, Miller, Russell; Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

This is an appeal from a post-decretal order denying a motion to vacate a final judgment decreeing specific performance. We have jurisdiction. Fla.R.App.P. 9.130(a)(4).

Bliss sold Carmona a lot for the total purchase price of $1,300,000. Bliss received $42,000 as an earnest money binder. At the time of this sale, the lot was encumbered by three separate mortgages. The land sale contract provided that the mortgages were to be assumed by Carmona. It became necessary for Carmona to seek enforcement of the contract. He, in fact, obtained a judgment of specific performance compelling Bliss to convey by a day certain, or else the judgment would act as a deed of conveyance. That judgment required Carmona to assume or satisfy the three existing mortgages.

The mortgages all contained provisions authorizing acceleration by the mortgagees upon default. Bliss had defaulted on the mortgage payments and the mortgagees had accelerated as they were privileged to do. Scarfo v. Peever, 405 So.2d 1064 (Fla. 5th DCA 1981); Federal Home Loan Mortgage Corporation v. Taylor, 318 So.2d 203 (Fla. 1st DCA 1975); Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970). Since Bliss was not able to pay the accelerated debt, the mortgages had gone into foreclosure.

Carmona, as vendee, was charged with full knowledge of the acceleration provisions, Case v. Smith, 146 Fla. 340, 200 So. 917 (1941), which in effect, prevented him from assuming the mortgages. Seeing this avenue closed, Carmona requested that the mortgagees assign the mortgages to a bank that had agreed to refinance the mortgages for Carmona. When the mortgagees refused, Carmona filed an emergency motion in the trial court requesting a modification of the final judgment to require that the conveyance by Bliss be conditioned upon assignment of the mortgages to the aforementioned bank. This motion was filed only two days prior to the closing date fixed by the judgment, and for reasons which are not relevant to our inquiry, the trial court never ruled on it. Bliss and Carmona thus proceeded to closing based on the judgment of specific performance as it stood.

At closing, Carmona took inconsistent positions. Initially, he attempted to demonstrate that he was capable of satisfying the existing mortgages by displaying cashier’s checks in amounts sufficient to retire the respective mortgage principals and unpaid interest, plus costs and attorney's fees. Consequently, the closing statement indicated that Carmona was being credited with the aggregate unpaid principal and interest of the three mortgages in the approximate sum of $350,000, and it also gave Carmona credit for the recordation of three satisfactions of mortgage with the clerk of the court. However, the cashier’s checks were never actually tendered. Instead, they were returned to a loan officer from the issuing bank before the closing was completed, indicating that they were not the property of Carmona and would not be tendered absent an assignment from the mortgagees to the issuing bank.

As an alternative, Carmona attempted a unilateral assumption of the mortgages. Bliss, in obedience to the judgment of specific performance, conveyed by warranty deed to a corporate assignee with which Carmona was in admitted privity. The deed provided that Carmona’s corporation was assuming the three existing mortgages and that Bliss was accepting a “fourth mortgage” for the unpaid purchase price.

A month after the court-ordered closing, Bliss moved to vacate the judgment of specific performance on the basis that Carmo-na had failed to satisfy the mortgages or to validly assume them and that it was “no longer equitable that the judgment . .. should have prospective application.” Fla. R.Civ.P. 1.540(b)(5). The motion was denied and this interlocutory appeal ensued.

Carmona attempts to support the order denying the motion to vacate on the ground that he validly assumed the existing mortgages by virtue of the assumptions memorialized in the deed. This argument is totally inadequate. Although under the judgment Carmona had the option of either satisfying or assuming the three mortgages, under the operative facts on the date of closing, he could only satisfy the mortgages. This he failed to accomplish and has not achieved to this day. Carmona has, therefore, completely failed to comply with the judgment of specific performance.

When the buyer wins the right to specific performance and cannot comply with the judgment or refuses to do so, equities shift and the seller has the right to vacate the judgment. Delray Beach Whitehouse Apts., Inc. v. Hoffman, 257 So.2d 550 (Fla. 1972). It is of no moment that Bliss agreed to become a “fourth mortgagee” in the present case. Had Carmona done that which was required of him, Bliss’ fourth mortgage would have become a first mortgage on or shortly after the closing. Car-mona’s noncompliance with the judgment severely jeopardized Bliss’ interest in the property under foreclosure. Equities have clearly shifted in favor of Bliss and vacation of the judgment of specific performance.

The order denying the motion to vacate the final judgment of specific performance is reversed with directions that the court retain jurisdiction to restore Bliss and Car-mona to their original positions prior to the execution of the land sale contract at a time and in a manner consistent with the circumstances of the parties.

Reversed and remanded with directions.

BASKIN, Judge

(dissenting).

I disagree with the majority opinion because, in my view, the testimony does not support the majority’s finding that Carmo-na failed to comply with the judgment of specific performance.

Furthermore, the purchase money mortgage appears in both the warranty deed and the mortgage deed as subject to the prior outstanding mortgages and fourth in position. Appellant agreed to relinquish any legal priority the purchase money mortgage might otherwise have enjoyed. See Graham v. Commonwealth Life Insurance Co., 114 Fla. 585, 154 So. 335 (1934); Williams, Salomon, Kanner & Damian v. American Bankers Life Assurance Co. of Florida, 379 So.2d 119 (Fla. 3d DCA 1979), aff’d after remand, 399 So.2d 365 (Fla. 3d DCA 1981); Roberts v. Harkins, 292 So.2d 603 (Fla. 2d DCA), cert. denied, 302 So.2d 417 (Fla. 1974); Miller, Starr & Regalia, Subordination Agreements, 13 U.C.L.A. L. Rev. 1298, 1299 (1966). Under these circumstances, the seller may not be heard to complain.

For these reasons, I would affirm.

ON MOTION FOR REHEARING

NESBITT, Judge.

On motion for rehearing, Carmona asserts that we overlooked or failed to consider his argument that he assumed the three existing mortgages encumbering the subject real property at the time of closing. Because we have fully disposed of that argument, we would summarily strike the motion for rehearing were it the only ground presented. Fla.R.App.P. 9.330(a).

However, Carmona also contends that we have deprived him of the opportunity to be heard on the remaining grounds asserted in his response to the motion to vacate the judgment of specific performance, since that motion was denied by the trial court following Bliss’ presentation of his case-in-chief. We have examined Car-mona’s response and find that, for the following reasons, no issues raised therein remain to be disposed of. First, most of the allegations in the response were pure conclusions of law. Certainty is required when pleading defenses and claims alike, Zito v. Washington Federal Savings & Loan Association of Miami Beach, 318 So.2d 175 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 23 (Fla. 1976), and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Chris Craft Industries, Inc. v. Van Valkenberg, 267 So.2d 642 (Fla. 1972); Ellison v. City of Fort Lauderdale, 175 So.2d 198 (Fla. 1965); Fuller, Inc. v. Frank F. Jonsberg, Inc., 107 Fla. 330, 144 So. 653 (1932); L.B. McLeod Const. Co. v. Cooper, 101 Fla. 441, 134 So. 224 (1931); Clark v. Boeing Company, 395 So.2d 1226 (Fla. 3d DCA 1981); Trawick’s Florida Practice and Procedure § 6-6 (1981). Second, the remaining arguments contained in the response are entirely subsumed within the defense of assumption and this issue has been thoroughly presented and treated.

The motion for rehearing is denied.

      . Bliss did not agree to subordinate his fourth mortgage to the lien of any future encumbrance as suggested in Judge Baskin’s dissent.


text:
    Albert W. AULD, M.D., Appellant, v. Eugene HOLLY, M.D., et al., Appellees.
    Nos. 78-2657, 79-972.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearings Denied Sept. 20, 1982.

      Edna L. Caruso, West Palm Beach, and Stephen Cahen, Miami, for appellant.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appel-lee-Eugene Holly, M.D.
    Michael B. Davis of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellee-Hubert L. Rosomoff, M.D.
    Rosemary Cooney and John S. Wilbur, Jr., of Paxton, Crow, Taplin & Bragg, P.A., West Palm Beach, for appellee-Robert S. Tolmach, M.D.
    Kent S. Pratt of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellee-Albert Ehlert, M.D.
   PER CURIAM.

This is an appeal from a judgment rendered in favor of the defendants (the appel-lees) in a defamation action. The principal issues are (1) whether the trial court erred in limiting discovery based on Section 768.-40, Florida Statutes (1977), and (2) whether the trial court improperly instructed the jury on the elements necessary to prove slander. We reverse and remand for a new trial.

The plaintiff below, Dr. Auld (the appellant), applied for staff privileges at Good Samaritan Hospital. The hospital’s by-laws required him to release from liability hospital representatives and persons furnishing information concerning his application to the hospital. The release covered acts connected with his application and performed in good faith and without malice.

The hospital rules also required Auld to interview with the chief physician in charge of the division in which he desired staff privileges, the neurosurgery division. Dr. Holly, who was the chief physician of neu- ° rosurgery and is an appellee here, interviewed Auld. Holly also contacted a number of physicians to verify information gleaned from the interview. Those physicians included the other appellees, Drs. Ro-somoff, Tolmach, and Ehlert.

Dr. Holly submitted a report concerning Auld to the hospital’s credentials committee. The committee, for whatever reason, denied Auld’s application. The committee’s decision was later affirmed by the hospital’s appellate review committee.

Dr. Auld then filed suit against the four appellees. He alleged that he was denied staff privileges at the hospital; suffered a loss of reputation, referrals, patients, and fees; sustained a blemish on his record; and suffered mental pain as a result of allegedly false and defamatory statements made by Drs. Rosomoff, Tolmack, and Eh-lert and published to the committee by Dr. Holly. The appellees denied the allegations of the complaint and alleged that the statements were true and privileged.

Dr. Auld sought discovery of the credentials committee’s records and sought to examine witnesses concerning the denial of staff privileges. He alleged that discovery was necessary to refute the appellees’ assertion that he was denied staff privileges J because of an incident involving the filming of a pornographic movie on his yacht, rather than appellees’ alleged defamatory statements. The trial court denied discovery on the grounds that it was barred by Section 768.40(4), Florida Statutes (1977).

The defamation action was tried before a jury. The jury returned a special verdict finding that the allegedly defamatory statements were made, but that the statements did not “tend to expose the Plaintiff to hatred, ridicule or contempt or tend to injure the Plaintiff in his profession.” Thus, the jury found that the statements were not defamatory because they did not cause Auld any damages. The jury did not make any findings on whether the statements were true or privileged. A judgment was entered in accordance with the verdict.

DISCOVERY PRIVILEGE

The first question we must decide is whether the trial court erred in limiting discovery. Dr. Auld asserts that the trial court erred by refusing to allow discovery of the credentials committee’s records and by refusing to allow Auld to examine witnesses concerning the committee’s denial of Auld’s application for staff privileges. Auld contends that he needed the records to prove that the allegedly defamatory statements caused the denial.

The appellees assert that those proceedings were protected by Section 768.40, Florida Statutes, and that subsection (4) of the statute bars discovery of those proceedings. While we find some merit in the appellees’ position, we have concluded that the statute does not bar discovery in this case.

We begin our analysis by noting that almost all of the provisions of Section 768.-40, Florida Statutes (1981), are ambiguous. The Legislature has amended this statute four times since its enactment, and with each amendment the statute has become more complicated and the exact intent of the Legislature more difficult to discern. See Ch. 72-62, §§ 1 and 2; Ch. 73-50, §§ 1 and 2; Ch. 77-461, §§ 1 and 2; Ch. 79-400, § 285; and Ch. 80-353, § 3, Laws of Fla.

What is obvious from the statute, however, is that the Legislature has endorsed peer review as an important means to foster the improvement of health care services in Florida. By enacting this statute, the Legislature has encouraged self-policing and peer review by so-called “medical review committees.”

A “medical review committee” was originally defined as any committee “which is formed to evaluate and improve the quality of health care rendered by providers of health. service, to determine that health services were professionally indicated or that the cost of health care was considered reasonable . . .. ” Ch. 72-62, § 1, Laws of Fla. The definition was later expanded to include committees which determine whether health services “were performed in corn-pliance with the applicable standard of care.” Ch. 73-50, § 1, Laws of Fla.

At the outset, we must decide whether a hospital’s credentials committee is a “medical review committee” as defined by the statute. A credentials committee is a medical review committee so long as the purpose of the committee is one of those listed in the statute. It is apparent that at least one of the purposes of the credentials committee in the present case is to improve the quality of health care at the hospital by limiting staff privileges to doctors of a certain caliber of competence.' Therefore, we conclude that the credentials committee is a medical review committee.

The Legislature apparently enacted Section 768.40 in response to the problems confronting self-policing and peer review efforts by medical review committees. We perceive at least two major problems that the Legislature apparently addressed: (1) people will refuse to participate because of the threat of a lawsuit against them by the people they police, and (2) people will refuse to furnish information to the committees in order to protect their friends and colleagues from malpractice liability.

The Legislature addressed the first of these problems by enacting subsection (2) of Section 768.40. As originally enacted, subsection (2) conferred a limited tort immunity on the members of medical review committees. In 1980 the Legislature expanded the tort immunity to protect “health care providers” that furnish information to the committees. Ch. 80-353, § 3, Laws of Fla. The statute defines health care providers as physicians, osteopaths, podiatrists, dentists, chiropractors, and pharmacists. § 768.-40(1), Fla. Stat. (1981); see Ch. 77-461, § 1, Laws of Fla. Thus, medical review committees and the doctors who provide information to the committees enjoy statutory tort immunity under Section 768.40(2).

This immunity protects persons who make mistakes in reviewing and evaluating their peers or in furnishing information to a review committee. Without this immunity, committee members might not want to participate because of the threat of a lawsuit against them by the doctors whose activities are reviewed. Similarly, without tort immunity, other doctors might refuse to furnish information to a committee for fear of defamation suits against them. This tort immunity, however, is limited; it applies only so long as the protected party acts without fraud or malice. Thus, while the Legislature recognized that the threat of lawsuits might inhibit the activities of medical review committees, it was not willing to absolutely bar suits against committee members and the doctors who furnish information to the committees. The Legislature merely said that so long as those engaged in the self-policing effort act without fraud or malice, they will incur no tort liability for their mistakes.

After having enacted subsection (2) to deal with the problem of lawsuits by a doctor whose conduct was reviewed, the Legislature added subsection (4) to the statute. We believe that this subsection was intended to address a different problem than subsection (2), the problem that the records of review proceedings might be used by a doctor’s patient to prove malpractice. Subsection (4) provides as follows:

The proceedings and record of ... [a medical review committee] shall not be subject to discovery ... in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by [a medical review committee]

§ 768.40(4), Fla. Stat. (1981).

Because of subsection (4), a doctor can provide information to a committee without the fear that the information might later be used against a colleague in a malpractice action. Even if the information already existed, the activity of the committee in marshalling the facts and making a determination could be very prejudicial in a subsequent malpractice case. Thus, we believe that the Legislature added subsection (4) because it believed that the medical community would not enthusiastically engage in self-policing as a means to improve health care if the self-policing efforts could later be used in medical malpractice cases.

We have previously expressed this same view of the Legislature’s intent in enacting subsection (4):

[T]he legislature could have felt that a medical society committee examining the alleged negligence of a physician, may be inhibited in its proceedings if the participants were aware that anything disclosed at the meeting could be used to prove a case against the physician in a civil action for malpractice. Hence, the legislature, in Section 768.40(4), prohibited discovery of the proceedings and records of the committee. Our decision does no harm to that legislative determination. We would also note that this bar to discovery does not, by operation, effectively bar a cause of action for malpractice since evidence of malpractice is otherwise obtainable.

Good Samaritan Hospital Ass’n, Inc. v. Simon, 370 So.2d 1174, 1176 (Fla. 4th DCA 1979). One of our sister courts, the Third District, has also read subsection (4) as preventing the use of medical review records in malpractice cases: “[T]he statute immunizes the records from discovery in a malpractice case . . .. ” Dade County Medical Ass’n v. Hlis, 372 So.2d 117, 119 n. 2 (Fla.3d DCA 1979).

Consistent with those views, today we hold that the discovery privilege of subsection (4) applies only in civil actions in which a doctor, or other health care provider as defined by the statute, is sued for malpractice or a similar deviation from the acceptable medical standards in the delivery of professional health services. In doing so, we rely on both the intent of the Legislature and the language of the statute.

Turning to the language of subsection (4), we find three requirements for the application of the discovery privilege. First, the privilege applies only in civil actions. Second, it applies only in actions against providers of health services, i.e., physicians, osteopaths, dentists, chiropractors, and pharmacists. Finally, the privilege applies only in actions “arising out of the matters which are the subject of evaluation and review” by a medical review committee.

The first two requirements seem rather clear cut. But the last requirement, which is the key to interpreting the extent of the privilege, is ambiguous. In interpreting this provision, we must bear in mind the strong public policy favoring discovery and the ascertainment of truth in legal proceedings. See Jones v. Seaboard Coast Line Railroad, 297 So.2d 861, 863 (Fla.2d DCA 1974) (rules are liberally construed in favor of discovery); 19 Fla. Jur.2d Discovery and Depositions, § 1 (1980) (rules are liberally construed in favor of discovery); 23 Am. Jur.2d Depositions and Discovery § 144 (1965) (statutes and rules are liberally construed in favor of discovery). This policy requires us to narrowly construe statutes, such as the present statute, which prevent parties from discovering why their legitimate interests have been adversely affected. If a statute is susceptible to different but equally tenable constructions, we must adopt the construction which allows discovery. We cannot, without a clear expression of legislative intent, allow a cloak of secrecy to envelop a proceeding that substantially affects a person’s legitimate interests.

We think that subsection (4) is fairly susceptible to different constructions. For example, Dr. Holly is a provider of health services and he is being sued for furnishing information to the committee. Arguably, he is being sued for a matter that was the subject of evaluation and review by the committee and, arguably, the discovery privilege applies. But we cannot accept such a broad reading of subsection (4) in the face of an obligation to narrowly construe such statutes. We believe that the Legislature intended the discovery privilege to apply in suits in which a health care provider is being sued for malpractice. We interpret the phrase “matters which are the subject of evaluation and review” to mean the provision of health care services; it is the provision of such services that are the subject of review.

We think our interpretation is supported by the different language used in subsections (2) and (4). When subsection (4) was added, the tort immunity of subsection (2) protected committee members. Only later was the tort immunity extended to health care providers that furnish information to the committees. See Ch. 80-353, § 3, Laws of Fla. Yet, when the Legislature adopted subsection (4) it said that the discovery privilege would apply in suits against “health care providers”; it did not say in suits against “committee members.” We think this choice of words shows that the discovery privilege was intended to apply only when a doctor who has been the subject of evaluation and review is later sued concerning the same matters which were evaluated and reviewed by the committee.

We also note that the discovery privilege applies only in suits against health care providers, which are defined as physicians, osteopaths, podiatrists, dentists, chiropractors, and pharmacists. We point out the inconsistency that would result if we were to hold that the discovery privilege applied in a defamation suit against a doctor even though the privilege would not apply in a suit against a hospital administrator who was a member of a review committee. We do not think the Legislature intended to enact a statute that would apply in suits against some committee members but not others.

Our interpretation, that subsection (4) does not apply in defamation suits brought by a doctor who was the subject of review, resolves the dilemma we faced in Good Samaritan Hospital Ass’n v. Simon, supra (“Simon ”). In that case we noted the apparent conflict between the provisions of subsections (2) and (4). We resolved the conflict in Simon by resorting to the rule of statutory construction that the courts will not attribute absurd results to the Legislature. We concluded that the Legislature would not have authorized a cause of action against a committee member for fraud and malice and yet barred discovery of the evidence necessary to maintain the action. Today’s construction of Section 768.40(4) permits the result we reached in Simon without the judicial straining we went through in Simon.

In addition to deciding that the statute is inapplicable, we hold that public policy does not suggest that discovery should be denied in this case. The Third District recently said that, “[t]he non-applicability of the statutory privilege does not mean . . . that we may or should ignore the considerations of public policy which informed the enactment of the statute . . . . ” Dade County Medical Ass’n v. Hlis, supra, 372 So.2d at 119. The court adopted a rule that the confidential proceedings of a medical review committee cannot be discovered without a showing of extraordinary circumstances or need. The court adopted this rule in order to safeguard the legislative policy of precluding civil litigants from discovering the proceedings of a medical review committee in order to prove medical negligence. This policy consideration, however, is not implicated when the party seeking discovery of a peer review proceeding is the doctor who was the subject of review. Accordingly, neither the statute nor its underlying policy prevent discovery in this case.

The appellees contend that any error in limiting discovery was harmless because the evidence sought, the reason the committee rejected Auld’s application, would bear only on the question of damages. We reject this contention. The jury was asked to decide, in determining whether the statements were defamatory, whether the statements tended to expose Auld to hatred, ridicule, or contempt or tended to injure him in his profession. In other words, the jury was asked to decide whether Auld suffered any damages that would make the statements defamatory. We cannot say with any degree of certainty that the jury would not have decided this case differently if it had been allowed to know the effect the statements had on the committee’s decision to deny Auld’s application.

Because of the obvious difficulty we have had in construing the provisions of Section 768.40(4) and our belief that the construction of the statute is an issue of great public importance, we certify the issue for resolution by the Supreme Court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

IS THE DISCOVERY PRIVILEGE SET OUT IN SECTION 768.40(4), FLORIDA STATUTES, LIMITED TO CIVIL ACTIONS AGAINST PROVIDERS OF HEALTH SERVICES BASED ON MEDICAL MALPRACTICE?

JURY INSTRUCTIONS ON DEFAMATION

The second issue is whether the trial court erred in allowing the jury to decide if certain statements alleged to be slander per se were defamatory. We hold that the question of whether a statement constitutes slander per se is normally a question of law and must be decided, when possible, by the court rather than the jury. As we view this record, the trial court erred in allowing the jury to decide the actionable nature of some of the statements in question.

Where a publication is false and not privileged, and causes injury to a person in his business or trade, it is presumed to injure him and is actionable per se. Thus, the Florida Supreme Court has held:

Where a publication is false and not privileged, and is such that its natural and proximate consequence necessarily causes injury to a person in his personal, social, official or business relations of life, wrong and injury are presumed or implied, and such publication is actionable per se.

Joopanenko v. Gavagan, 67 So.2d 434 (Fla. 1953). Words are actionable per se when:

their injurious character is a fact of common notoriety, established by the general consent of men, and the court consequently takes judicial notice of it. They necessarily.import damage; therefore, in such cases general damages need not be pleaded or proved, but are conclusively presumed to result. Special damages need not be shown in order to sustain the action.

19 Fla. Jur.2d Defamation and Privacy, § 5 (1980).

Keeping in mind that the statements refer to a practicing physician, the following sampling of the statements should suffice to demonstrate their injurious character:

1. Dr. Auld left town suddenly and under suspicious circumstances.
2. Something had happened and Dr. Auld left town rather precipitiously.
3. Dr. Auld had been run out of town or it seemed he was run out of town.
4. Dr. Auld had left in a hurry to go into the Navy.
5. Dr. Auld’s malpractice defense attorney was looking for him.
6. Dr. Auld abandoned patients in the hospital.
7. This guy is bad news.
8. Dr. Auld’s Miami practice was tied in with a notorious neurologist, who referred him most of his patients and they had a falling out so Auld’s practice went to pot.
9. Dr. Auld was kicked out of a small hospital.
10. Dr. Auld left town because of many malpractice suits against him.
11. Dr. Auld did a lot of ghost surgery for the notorious neurologist.
12. Dr. Auld was likely to develop rapport with fringe operators and do ghost surgery for them also. There was no reason to suspect that this might not occur again,
13. Dr. Auld did not give adequate postoperative care.
14. Dr. Auld performed unnecessary surgery.
15. There was an altercation of some sort with Dr. Auld’s colleagues.
16. Dr. Auld had a boat where pornographic movies were made.
17. Dr. Auld had apparently applied all over the east coast for jobs.

In instructing the jury, the trial court gave a combination of Standard Jury Instruction MI 4.1 and 4.2. However, a footnote at the end of Instruction 4.1 admonishes the trial courts not to give MI 4.1(b) if the alleged defamatory matter is defamatory per se. MI 4.1(b) is the portion of the instruction which allows the jury to determine whether the words in question are defamatory by allowing the jury to decide whether the words tend to expose the claimant to hatred, ridicule, or contempt or tend to injure the claimant in his business or occupation. Of course, the reason 4.1(b) should not be given if the words are defamatory per se is that it is a question for the court, not the jury.

While not all of the foregoing statements are actionable per se, we hold that the statements listed as 6, 9, 10, 13, and 14 fall into that category as a matter of law. It seems clear to us that publication of untrue statements about a physician to the effect that he does unnecessary surgery, that he abandons his patients in the hospital, that he does poor post-operative care, that he was kicked out of a hospital, or that he ran out of town because of too many malpractice cases constitutes injury to the physician in his profession. Therefore, it was the trial court’s function to determine those statements were slander per se and allowing the jury to make the determination was error. Some of the other statements listed could well be found by the jury to be slanderous per quod and, thus, allowing the jury to make that determination under proper instructions was appropriate.

To summarize, we hold (1) that the discovery privilege of Section 768.40(4), Florida Statutes (1981), applies only in civil actions in which a health care provider, as defined by the statute, is sued for malpractice or a similar deviation from acceptable medical standards in the delivery of health services, and (2) that the trial court erred by allowing the jury to decide the actionable nature of certain allegedly defamatory statements. Accordingly, we reverse the judgment, remand for a new trial on all issues, and certify the discovery issue as one of great public importance.

REVERSED AND REMANDED; QUESTION CERTIFIED.

DOWNEY, ANSTEAD and HURLEY, JJ., concur.

      . We note that the appellant also asserts that the trial court erred in taxing the cost of copies of depositions. We have previously held that such copies are taxable in the discretion of the trial court if it finds that the copies, like the original, served a useful purpose. Moore v. Caughey, 368 So.2d 109 (Fla. 4th DCA 1979). Since, however, we are reversing the judgment on other grounds, and the cost order is likewise reversed, we need not reach the costs issue in this case.

      . The report provided as follows:
      Credentials Committee
      Good Samaritan Hospital
      P.O. Box 3166
      West Palm Beach, Florida 33402
      Re: Albert W. Auld, M.D.
      Gentlemen:
      I have interviewed Dr. Auld in our office and have reviewed his curriculum vitae as well as his bibliography.
      I was impressed by the fact that Dr. Auld was unable to really give me a good reason why he left Miami and why he had a subsequent short career in the Navy. Following this I have spoken with several individuals, neurosurgeons and a general surgeon in Miami and requested some information about him. Some of our neurosurgical colleagues in Miami were less than impressed with Dr. Auld’s performance. He apparently has lacked giving postoperative care and his previous partners did not seem to bee [sic] too unhappy that he has left them. He apparently has done some unnecessary surgical procedures and his leaving Miami was prompted by a falling out with a neurologist who was his main referral source. Because not all reports were detrimental about him I cannot frankly oppose his admission to the Good Samaritan Hospital Staff but I certainly would recommend that the Credentials Committee take a long, hard look at his career and at his credentials.
      If I can be of any further assistance, please do not hesitate to call me.
      Very truly yours,
      /s/ E. Holly Eugene H. Holly, M.D.

      . The current version of the statute, which we cite because subsection (4) has remained unchanged throughout this action, provides as follows:
      768.40 Medical review committee, immunity from liability.—
      (1)As used in this section, the term “medical review committee” or “committee” means a committee of a state or local professional society of health care providers or of a medical staff of a licensed hospital or nursing home, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home, which committee is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area. The term “health care providers” means physicians licensed under chapter 458, osteopaths licensed under chapter 459, podiatrists licensed under chapter 461, dentists licensed under chapter 466, chiropractors licensed under chapter 460, or pharmacists licensed under chapter 465.
      (2) There shall be no monetary liability on the part of, and no cause of action for damages shall arise against any member of a duly appointed medical review committee, or any health care provider furnishing any information, including information concerning the prescribing of substances listed in s. 893.-03(2), to such committee, for any act or proceeding undertaken or performed within the scope of the functions of any such committee if the committee member or health care provider acts without malice or fraud. The immunity provided to members of a duly appointed medical review committee shall apply only to actions by providers of health services, and in no way shall this section render any medical review committee immune from any action in tort or contract brought by a patient or his successors or assigns. The provisions of this section do not affect the official immunity of an officer or employee of a public corporation.
      (3) Except as provided in subsection (2), this section shall not be construed to confer immunity from liability on any professional society or hospital or upon any health professional while performing services other than as a member of a medical review committee. In any case in which, but for the enactment of the preceding provisions of this section, a cause of action would arise against a hospital, professional society, or an individual health professional, such cause of action shall exist as if the preceding provisions had not been enacted.
      (4) The proceedings and records of committees as described in the preceding subsections shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions, or other actions of such committee or any members thereof. However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.
      § 768.40, Fla. Stat. (1981).

      . See Mennes v. South Chicago Community Hospital 100 Ill.App.3d 1029, 56 Ill.Dec. 547, 427 N.E.2d 952 (1st DCA 1981); Matchett v. Superior Court, 40 Cal.App.3d 623, 115 Cal. Rptr. 317 (3d DCA 1974); Annot., Discovery of Hospital’s Internal Records of Communications as to Qualifications or Evaluations of Individual Physician, 81 A.L.R.3d 944 (1977).

      . We, of course, make no ruling in this case on whether these doctors would be protected from tort liability by the statutory tort immunity, if it had been in effect, or by a common-law privilege, as such are not issues in this appeal. See generally Prosser, Law of Torts § 115 (4th ed. 1971). Rather, we merely intend to point out the apparent purpose of the statutory tort immunity.

      . Subsection (4) was added at the same time that the definition of medical review committees was amended to include committees that determine whether health care services were provided in compliance with applicable standards, i.e., whether a doctor was guilty of malpractice. See Ch. 73-50, §§ 1 and 2, Laws of Fla.

      .Further evidence can be found in subsection (3). That subsection provides in part:
      In any case in which, but for the enactment of the preceding provisions of this section, a cause of action would arise against a hospital, professional society, or an individual health professional, such cause of action shall exist as if the preceding provisions had not been enacted.
      § 768.40(3), Fla. Stat. (1981). Under one reading of subsection (3), it abolishes the tort immunity of subsection (2) because the people protected by subsection (2) are almost always health professionals. That, of course, would be an absurd result because subsections (2) and (3) were enacted together. See Ch. 72-62, § 2, Laws of Fla. To read these subsections consistently we must infer that the phrase, “cause of action [arising] against ... an individual health professional,” was meant to define malpractice suits and not suits against committee members for their actions as committee members. In other words, we believe the Legislature intended a distinction between suits against doctors as doctors and suits against doctors in their role as committee members. If so, then a reading of the similar language in subsection (4) “action against a provider of professional health services,” forces us to conclude that subsection (4) was not intended to prevent a doctor who was the subject of peer review from discovering the committee proceedings.

      . As written the discovery privilege also does not apply to actions against other persons, such as patients or nurses, who might supply information to a committee. Presumably, even under appellees’ view, the committee proceedings would be subject to discovery in an action against a patient for defamation.

      . We note that the hospital’s own by-laws, although not relied on by the appellant, would also allow the appellant to discover the information sought in this case. The “By-laws and Rules and Regulations for the Government of the Medical Staff of the Good Samaritan Hospital,” which were admitted into evidence in the case at bar, indicate that the plaintiff has an absolute right to the information which was denied by the trial court. Article V of the by-laws contains an elaborate and carefully crafted procedure for appointment and reappointment to the hospital’s staff. Section 2(f) of that article indicates that a physician who receives an adverse recommendation is entitled to certain due process rights including a hearing and appellate review procedure pursuant to Article VIII. In turn, Article VIII, Section 6(e) indicates that:
      The affected practitioner shall have access to the report and record (and transcription, if any) of the ad hoc hearing committee and all other material, favorable or unfavorable, that was considered in making the adverse recommendation or decision against him.
      Thus, the hospital’s own rules guarantee access to the information sought by appellant in the trial court.


author: ANSTEAD, Judge.

text:
    Frances Elaine STELLA, Appellant, v. Joseph George STELLA, Appellee.
    No. 81-1796.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1982.
    Rehearing Denied Sept. 20, 1982.
    Perry S. Itkin, Fort Lauderdale, and Edna L. Caruso, West Palm Beach, for appellant.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appel-lee.
   ANSTEAD, Judge.

Following entry of a final judgment in this dissolution proceeding the wife filed a motion for new trial pursuant to Florida Rule of Civil Procedure 1.530. No written order was ever entered on the motion. However, following a hearing thereon, the wife filed a motion to amend her motion for new trial asserting fraud by the husband with respect to his trial testimony as to the value of certain art objects. A hearing was held on the motion to amend at which the husband’s attorney objected to the receipt of any evidence. The trial court chose to treat this motion as one filed pursuant to Florida Rule of Civil Procedure 1.540(b) and denied it without conducting an evidentiary hearing. The court concluded that the wife was really relying on newly discovered evidence of the value of the art objects that she had discovered after the trial but that she could have discovered with the exercise of due diligence before trial. The wife then brought this appeal asserting her right to an evidentiary hearing.

Although we find the motion of the wife to be less than artfully drawn and the statement of her position to the trial court and now on appeal to be less than clear-cut, we conclude that she is entitled to an evidentiary hearing on her allegations of fraudulent conduct by the husband. In her brief the wife asserts that the “evidence that the Wife now had showed that the Husband had been fully aware at the time that he testified that the statue was worth $35,000, not $100.” The wife also claims that the husband made substantial misrepresentations as to the value of other valuable art objects. If proven, this conduct would constitute the kind of fraud, misrepresentation, or other misconduct of an adverse party contemplated by the provisions of Rule 1.540(b)(3). Such conduct may also be the proper subject of a timely filed motion for rehearing under Rule 1.530.

A party seeking relief on the basis of such misconduct has an obligation to raise this issue as soon as is reasonably possible. If the conduct takes place at trial and a party is then aware of evidence suggesting fraud he has an obligation to present such evidence at trial. On the other hand, if the party only becomes aware of the fraud after final judgment the fraud should be asserted in either a motion for rehearing under Rule 1.530 or Rule 1.540(b), depending on the time the fraud is discovered. In either case, however, the party asserting such fraud is entitled to an eviden-tiary hearing on the issue.

Accordingly, the order of the trial court is reversed and this cause is remanded with directions that an evidentiary hearing be conducted on the wife’s motion.

HURLEY and DELL, JJ., concur.

      . From the record it appears that the motion to amend the motion for new trial was timely since no order had yet been entered on the motion for new trial and Rule 1.530(b) allows amendment of a timely filed motion at any time before the motion is determined.


author: SCHEB, Acting Chief Judge.

text:
    Shirlee B. COLLINS and Florence Breacher, as Trustees of the Lewis E. Bower Trust—1977, and Rose Bower Trust—1977, Appellants, v. INTERVEST, INC., Bruce E. Clary, Randolph Y. Matheny, Intervest Construction Company, Real Estate Technology, Inc. of Florida, Guardian Mortgage Investors, and W.J.W. of Tampa, Inc., Appellees.
    No. 81-1599.
    District Court of Appeal of Florida, Second District.
    July 2, 1982.
    Rehearings Denied Sept. 3, 1982.
    Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    John W. Boult and A. Broaddus Livingston of Carlton,- Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for W.J.W. of Tampa, Inc.
    Marvin E. Barkin and Richard Candelora of Trenam, Simmons, Kemker, Scharf, Bar-kin, Frye & O’Neill, P.A., Tampa, for Guardian Mortg. Investors.
   SCHEB, Acting Chief Judge.

Appellants contend the trial court erred in dismissing their second-amended complaint in an action for conversion. We agree and reverse.

Appellants alleged that appellee Intervest trespassed upon their land and removed large amounts of soil and fill material without appellants’ knowledge or consent. In-tervest allegedly placed the soil upon nearby parcels of land owned by appellee Real Estate Technology, Inc. (RET). Appellee Guardian Mortgage Investors (GMI) subsequently foreclosed on a mortgage from RET on these lands, and eventually sold the property to W.J.W. Appellants also alleged that GMI knew that the soil had been wrongfully taken from appellants’ lands and that it continued to be aware of that fact through the time it obtained fee ownership of the parcels. Moreover, appellants alleged that when W.J.W. acquired the property, it was also aware that appellants’ soil had been wrongfully taken and placed upon it. Thus, appellants maintain that GMI and W.J.W., by virtue of taking possession and control of appellants’ soil and fill material, converted the soil to their own use.

GMI and W.J.W. filed motions to dismiss. The trial court granted the motions, subsequently stating that the basis for its decision was the rule announced in Hatfield v. Spears, 380 So.2d 262 (Ala. 1980). There the Supreme Court of Alabama announced that conversion was not a proper remedy for a plaintiff to recover dirt which had been severed from his land and affixed to another’s land.

Appellants urge that soil which has been removed from a plaintiff’s property and is subsequently placed upon and becomes part of a defendant’s property can still be the subject of an action for conversion. They point out that conversion is the taking of personal property from the possession of another without legal justification and with the intention of exercising dominion over it. Wilson Cypress Co. v. Logan, 120 Fla. 124, 162 So. 489 (Fla. 1935). Appellants recognize that earth, sand, or gravel in its original bed is a part of the realty and, as such, cannot be the subject of an action for conversion. Nevertheless, they argue that in Florida where soil has been wrongfully severed and removed, the removed soil becomes personalty and an action for conversion will lie. Pettigrew v. W & H Development Co., 122 So.2d 813 (Fla. 2d DCA 1960).

Appellees concede that soil or other materials attached to the land could constitute personalty once severed from the land. They argue, however, that to be the subject of an action for conversion the severed soil must remain separate from the realty and identifiable. They maintain that once severed soil becomes incorporated into other realty, the soil is no longer personal property and cannot be the subject of an action for conversion. This was precisely the rule announced in Hatfield v. Spears, where the Alabama court stated:

Plaintiffs urge that conversion was a permissible cause of action because (1) dirt was severed from their property; (2) the dirt thus became personal property; and (3) Spears converted such personal property to his own use. We, however, agree with defendant’s argument that an action for conversion could not be maintained because the dirt was permanently affixed to realty and, thus, became incorporated into that realty. Alabama law is clear that trover will only lie for conversion of chattels and will not lie for the conversion of personal property which is, after the alleged conversion, incorporated into real property.

380 So.2d at 265.

The Hatfield rule differs from the Florida view. Hatfield would bar a cause of action for conversion once the soil has become affixed to realty. This court in Petti- grew did not make this distinction. Hatfield emphasized some of the practical problems of ascertaining damages and concluded that where the soil has not yet been joined to the new realty, it is identifiable and the measure of damages is ascertainable. However, the court reasoned that once the soil has become attached to the realty, it is no longer identifiable and the plaintiff must submit other proof of damages in order to recover. We agree that incorporation of the severed soil into the new real property may make the task of assessing damages difficult; yet, such difficulty should not deprive a plaintiff of an otherwise viable cause of action.

Appellees contend, alternatively, that appellants failed to allege that appellees participated in the actual removal of the soil. Since the trial court dismissed the complaint solely on the basis of Hatfield, we do not reach the appellees’ alternative argument as to the sufficiency of the complaint. However, our opinion is without prejudice to the court’s revisiting the motion to dismiss or. any other grounds alleged.

We adhere to Pettigrew and hold that an action for conversion will lie for soil wrongfully severed from its original bed, removed and placed on other land. Accordingly, we reverse the trial court’s order, and remand for proceedings consistent with this opinion.

REVERSED.

CAMPBELL and SCHOONOVER, JJ., concur.

      . The Florida view is supported by the decided weight of authority. See 89 C.J.S., Trover and Conversion, § 24 (1955), and Annot., 84 A.L. R.2d 790 (1962).


text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Bruce J. SCOTT, Appellee.
    No. 81-1741.
    District Court of Appeal of Florida, Second District.
    July 2, 1982.
    Rehearing Denied Sept. 3, 1982.

      Anthony N. DeLuccia, Jr., Fort Myers, for appellant.
    Charles L. Bigelow, Jr., of Bigelow & Winesett, Fort Myers, for appellee.
   SCHEB, Acting Chief Judge.

Appellant, Department of Health and Rehabilitative Services (HRS), appeals from the entry of a final judgment in favor of appellee, Bruce Scott. The issue we address is whether HRS, Scott’s tenant, has “taken” a leasehold interest in his property by holding over and not paying him an increased monthly rental rate.

Appellee leased a building to HRS for five years ending June 30, 1977, at $2,083 per month. In anticipation of the expiration of the term of the lease, the parties stipulated to a six-month extension at an increased monthly rental rate of $4,066.42. A modification to this effect was signed July 6, 1977. The Department of General Services refused to approve the increase, and without its authorization, HRS was unable to pay the increased rate. HRS received Scott’s permission to continue to occupy the premises and remained in possession for four months after the lease expired. During this period, Scott unsuccessfully sought General Services’ approval of the lease extension. After the third month, HRS tendered three months rent at the old rate and notified Scott that it intended to leave in twenty days. Scott refused to accept the rent tendered by HRS, and attempted to prevent it from using the building by locking the premises. HRS obtained a temporary injunction and continued operations in the building until the latter part of October. At that point HRS moved off the premises.

Scott sued HRS on different theories, but the litigation proceeded only on his allegation that HRS had inversely condemned his property. The trial court entered a summary judgment against HRS finding that it had “taken” a leasehold interest in Scott’s property for a term from July 1 to October 28, 1977. The court ordered a jury trial on damages, after which final judgment was entered in favor of appellee Scott. HRS challenges that judgment, arguing that the trial court erred in finding a taking and allowing the ease to proceed on a theory of inverse condemnation. We agree with that position and reverse.

Eminent domain is the exercise of the government’s power to take private property for the public good. This sovereign power is limited by our constitution which states that any taking of private property for a public purpose must be with full compensation to the owner. Art. X, § 6, Fla. Const. (1968). The government generally exercises its power to condemn through formal proceedings. However, when a governmental body takes private property without first initiating formal proceedings, the injured property owner may institute an inverse condemnation suit. City of Jacksonville v. Schumann, 167 So.2d 95 (Fia. 1st DCA 1964), cert. denied 172 So.2d 597 (Fla.1965).

Proof of a taking by the governmental body is an essential element in an action for inverse condemnation. Taking has been defined as:

[E]ntering upon private property for more than a momentary period and, under the warrant or color of legal authority, devoting it to a public use, or otherwise informally appropriating or injuriously affecting it in such way as substantially to oust the owner and deprive him of all beneficial enjoyment thereof.

Poe v. State Road Department, 127 So.2d 898 (Fla. 1st DCA 1961). The determinative question in an alleged taking is: What has the owner lost? In this case the owner did not lose four months rent; rather, he was deprived of receiving an increase in rent for four months occupancy by HRS.

Each factual situation involving the issue of taking must be judicially determined on an individual basis. We have found no Florida cases which suggest that failing to pay rent could be classed as a taking within the constitutional meaning of the term. Nevertheless, a profitable comparison may be made to Weir v. Palm Beach County, 85 So.2d 865 (Fla.1956), and Dudley v. Orange County, 137 So.2d 859 (Fla.2d DCA 1962). In Weir the supreme court found that the widening of a highway which destroyed the lateral support of the citizen’s property did not amount to a taking or appropriation of his property. In Dudley v. Orange County, this court found that flooding caused by the county’s dams which affected private property was not a taking because there was no showing of continuous flooding that inflicted irreparable and permanent injury to the property. The underlying rationale in these cases is that the damage did not amount to a permanent deprivation of the owners’ use of their lands. Likewise, in the instant case, the acts of the appellant did not permanently deprive the appellee of the use and enjoyment of his property.

The common thread running through the cases on inverse condemnation involves situations where a continuing trespass or nuisance ripens into a constitutional taking of property without the payment of just compensation. In this case there was no trespass for the three months that HRS was holding over as a tenant with appellee’s permission. Once it notified appellee that it intended to move in twenty days and appellee locked the premises, permission was withdrawn. Nevertheless, HRS moved out promptly and the short period of time that it took for it to vacate the premises did not “ripen” into a constitutional taking of appellee’s property.

We hold that a dispute over rent to be paid between a landlord and a government tenant arising after termination of a lease agreement, where the government retains use of the premises while the parties attempt to negotiate a new agreement, cannot be characterized as a taking.

We note that appellee sought his remedy through inverse condemnation as an alternative to other requested relief. While ap-pellee should be entitled to pursue a remedy against HRS, we believe that he should do so on a basis other than the theory of inverse condemnation.

Accordingly, we vacate the judgment and remand to the trial court so that appellee may further litigate his cause on grounds other than the theory of inverse condemnation.

CAMPBELL and SCHOONOVER, JJ., concur.