author: McCORD, Judge. McCORD, Judge.

text:
    Tyrone GOODSON, Appellant, v. STATE of Florida, Appellee.
    No. PP-126.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1980.
    Rehearing Denied Oct. 27, 1980.
    Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Goodson moved to correct an illegal sentence after he was sentenced to two fifteen-year consecutive sentences for two counts of armed robbery. Fla.R.Crim.P. 3.800(a). He alleged that the trial court erred in failing to classify him as a youthful offender under the guidelines of section 958.04(2), Florida Statutes (Supp.1978) after he had requested such classification at his sentencing hearing. We affirm on a ground not relied upon below.

The trial court based its order denying relief upon a construction that classification under the Youthful Offender Act was discretionary in all instances. It is clear that this section is indeed mandatory. Subsection (1) delineates certain eligibility requirements which must be met before the trial court is permitted to classify an individual as a youthful offender. If these criteria are met and the criteria of subsection (2) are met, “a person shall be classified a youthful offender. [Emphasis added.]” The word “shall,” as used in statutes, is usually intended to be mandatory rather than directory. Holloway v. State, 342 So.2d 966 (Fla.1977). The interpretation depends upon the context in which it is found. S. R. v. State, 346 So.2d 1018 (Fla.1977). Not only does the context show the legislature intended to provide both discretionary and mandatory sentencing; but, committee reports on the bill support this conclusion. The legislative intent expressed in section 958.021 does not require a different result because, as indicated there, classification as a youthful offender may offer a discretionary sentencing alternative in cases where a child prosecuted as an adult needs a more restrictive environment than that available under chapter 39. See §§ 39.111(1), (5)(b), and (6). However, in the context of providing a sentencing alternative to traditional adult sanctions, section 958.04(2) mandates youthful offender classification if the criteria are met. We note that recognizing youthful offender sentencing as an adult sanction is implicit in State v. Cain, 381 So.2d 1361 (Fla.1980), a consolidated case concerning transfers for adult prosecution pursuant to informations filed by the state attorney. The court explained:

[ E]ven when a juvenile is convicted in adult court he is still given special treatment as a juvenile. Before imposing judgment, the trial court must conduct a disposition hearing to determine whether juvenile or adult sanctions are appropriate. § 39.02(6), Fla.Stat. (Supp.1978) . [I]f adult sanctions are imposed against a juvenile, he may still enjoy the benefit of the youthful offender act under chapter 958 of the Florida Statutes.

381 So.2d at 1367.

We also reject appellee’s contention that because Goodson was charged initially by indictment, he was not “transferred” for purposes of qualifying for youthful offender classification under chapter 958. On this point, we respectfully disagree with Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980) (holding indicted child not within purview of chapter 958). Not only do we think the statutes at issue require a contrary conclusion, but, we perceive some problems if we were to adopt such a construction. Initially, we note that denying an indicted child the benefits of the Youthful Offender Act could result in unacceptable disparate treatment. Section 598.04(l)(a), the eligibility requirement in controversy, states:

(1) The court may classify as a youthful offender any person:
(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39. [Emphasis supplied.]

An examination of chapter 958 in its entirety shows that eligibility is extended not only to transferred children, but to young adults committing crimes between the ages of 18 and 21. § 958.04(l)(b). Chapter 958 makes no distinctions between treatment accorded indicted persons and other persons. Thus, it appears if we were to accept the Postell rationale, under the disjunctive language in section 958.04(l)(a) above, a 13-year-old indicted child would be ineligible for youthful offender treatment, (Pos-tell, supra) whereas a 19-year-old indicted person, never within the scope of chapter 39, would be eligible. We do not think the legislature could intend this result.

As we understand Postell, it states that because section 39.111(6) is explicitly referred to in the waiver provisions of section 39.02(5)(a) but isn’t mentioned in the indictment provisions of section 39.02(5)(c), this evinces a legislative intent to sentence an indicted child strictly as an adult. However, section 39.02(5)(d) and (6) reveal the error in this reasoning as follows:

[§ 39.02(5)](d) Once a child has been transferred for criminal prosecution pursuant to a waiver hearing, indictment, or information and has been found to have committed the offense for which he is transferred or a lesser-included offense, a child shall thereafter be handled in every respect as if he were an adult for any subsequent violation of Florida law.
[§ 39.02](6) When a child has been transferred for criminal prosecution as an adult and the child has been found to have committed a violation of Florida law, the disposition of the case shall be made pursuant to s. 39.111(6). [Emphasis supplied.]

Subsection (5)(d), clearly referring to “indictment,” means that an indicted child, whether or not an earlier petition has been filed, is to be considered as though “transferred for criminal prosecution.” Logically, subsection (6) provides that such a transferred child (whether waived or indicted or informed against) is protected by section 39.111(6). Regarded in this manner, all children convicted of criminal violations will be subject to the same statutory sentencing procedures and any disparity in treatment as perceived in Postell is avoided. To construe these sections otherwise makes subsection (6) redundant and meaningless because the preceding subsection (5)(a), as noted above, explicitly provides for section 39.111(6) treatment in waiver cases. Thus interpreted, both an indicted child and a waiver child are subject to section 39.111(6) and, depending upon individual facts, both may be subject to juvenile sanctions or adult sanctions, including treatment under the Youthful Offender Act. See generally State v. Cain, supra; section 39.111(5)(b).

Thus, although a child, whether indicted, informed against, or otherwise waived over to adult court, will in most respects be treated as if an adult, chapters 39 and 958 clearly provide some limitations as to the manner and extent of sentencing such persons as adults.

Although we have rejected the foregoing points raised to sustain the order, we find merit to the proposition that appellant does not qualify for treatment under the mandatory provisions because he has previously been found guilty of' a felony. § 958.04(2)(a). Killian v. State, 387 So.2d 385 (Fla. 2d DCA 1980).

Goodson was adjudicated guilty of two robberies based on previous pleas of guilty. Thereafter, he was sentenced on both charges. Thus at the time of sentencing, he had been previously found guilty of a felony other than the felony qualifying him under the act.

We think it appropriate to find that “previously . . . found guilty of a felony” refers to' any adjudication taking place before sentencing, not before the adjudication of the qualifying felony. Lucas v. State, 376 So.2d 1149, 1152-1153 (Fla.1979) (holding that “previously convicted . of a felony involving the use or a threat of violence to the person” included felony convictions entered contemporaneously with a murder, because both were entered “previous” to sentencing and therefore appropriately considered as an aggravating circumstance); Killian, supra. This interpretation thus comports with the rehabilitative purposes of the act. The scheme of the act indicates the legislature contemplated mandatory classification for young persons committing their first and only felony. Otherwise, the legislature has wisely provided for discretionary sentencing, with the court considering, among other things, the likelihood of reasonable rehabilitation and whether classification would reflect the seriousness of the offense, promote respect for law, and provide just punishment. § 958.04(3)(f), (g). It is difficult, if not impossible, to conclude that the legislature would provide for mandatory classification considering the serious nature of the felonies committed here.

AFFIRMED.

MILLS, C. J., and BOOTH, J., concur.

ON MOTIONS FOR REHEARING AND REQUEST FOR CERTIFICATION

McCORD, Judge.

We adhere to our original opinion, rejecting the state’s argument that chapter 80-321, Laws of Florida, deleting mandatory classification, in any way indicates the legislature intended section 958.04(2), Florida Statutes (Supp. 1978) to be discretionary when initially enacted.

However, we agree that our opinion passes upon several questions of great public importance and we hereby certify those questions so that the Supreme Court may have an opportunity to review them. Fla. R.App.P. 9.030(a)(2)(A)(v).

1. Does section 958.04(2), Florida Statutes (Supp. 1978) provide for mandatory classification if certain statutory prerequisites are satisfied?
2. Is a child charged by indictment considered “transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39” so as to qualify for youthful offender classification under section 958.04(l)(a), Florida Statutes (Supp. 1978)?
3. If question 1 is answered in the affirmative, is a person excluded from mandatory classification under section 958.-04(2)(a), Florida Statutes (Supp. 1978) when prior to sentencing the offender has been found guilty of a qualifying felony under the act and has simultaneously been found guilty of other felonies?
Questions certified; rehearing denied.

MILLS, C. J., and BOOTH, J., concur.

      . See particularly, “A Report Submitted to the House Committee on Corrections, Probation and Parole,” May 10, 1978, concerning CS for CS/SB 165.- Other records of interest are. in the files of the House and Senate Committees on Corrections, Probation and Parole.

      . Chapter 78-414, Laws of Florida, effective October 1, 1978, amending § 39.02(5)(c), inserted a new phrase, “when an indictment is returned, the petition for delinquency, if any, shall be dismissed.” Thus, the legislature contemplated the situation sub judice involving an indictment returned before the filing of a petition.

      . Notably, chapter 78 — 414, amending the waiver provisions of § 39.02(5)(a) to refer to § 39.111(6), simultaneously added subsections (5)(d) and (6).

      . Of course, youthful offender treatment would be denied any child, indicted or not, if convicted of a capital or life felony. § 958.04(1 )(c).

      . State v. Cain, supra, and cases cited in Postell v. State, supra.

      . The parties filed supplemental briefs on this issue upon our request.

      . We find no distinction between adjudications preceding the sentencing by days and those preceding the sentencing by moments.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ATLANTA NATIONAL REAL ESTATE TRUST and Atlanta National Management Company and Affiliated FM Insurance Company, Appellants, v. William Herbert RAIN, Sparrow Condominium, Inc., R&MW, Inc., Sparrow’s Nest, Inc., Dominion Realty, Inc. and Aetna Casualty Insurance Company, Appellees.
    No. QQ-384.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1980.
    On Rehearing Jan. 16, 1981.

      Wayne C. McCall of Ayres, Cluster, Curry, McCall & Briggs, P.A., Ocala, for Atlanta National Real Estate Trust.
    Steven H. Gray of Green, Simmons, Green, Hightower & Gray, P.A., Ocala for Atlanta National Management Company and Affiliated FM Insurance Co.
    S. David Cox of Barton & Cox, Gaines-ville, for William Herbert Rain.
    Bruce R. Raster of Pattillo, MacKay & McKeever, P.A., Ocala, for Sparrow Condominium, Inc.
    R. Franklin Ritch, of Ritch & Graves, P.A., Gainesville, for Aetna Cas. Ins. Co.
   PER CURIAM.

This is an appeal from a worker’s compensation order which finds that Atlanta National Real Estate Trust (ANRET) and Atlanta National Management Company (ANMC) were the employers of the claimant at the time of his injury. The appellants raise numerous issues, only four of which require discussion.

The significant issue with regard to ANMC is whether the Judge of Industrial Claims erred in finding that ANMC is the alter ego of ANRET. We agree this finding is erroneous. In Roberts’ Fish Farm v. Spencer, 153 So.2d 718 (Fla.1963), the Supreme Court held that neither the Judges of Industrial Claims nor the IRC may pierce the corporate veil primarily because workers’ compensation proceedings do not provide an adequate forum for the necessary fact finding. Accord, Goldstein v. Gray Decorators, Inc., 166 So.2d 438 (Fla.1964); Stiles Construction Co. v. Gruber, 2-2920, cert. denied 336 So.2d 106 (Fla.1976). Although the Judge of Industrial Claims’ piercing of the corporate veil was upheld in Walt Disney World Company v. Dille, 2-2597, cert. denied 303 So.2d 335 (Fla.1974) we find the rationale of Roberts’ Fish Farm compelling. Here, in a record which contains in excess of 1,500 pages, there are not sufficient facts to determine whether ANMC is, in fact, the legal alter ego of ANRET. We reverse the finding and order that ANMC be dismissed from the proceedings. Having so ruled, it is unnecessary to determine other issues relative to ANMC.

The only other issues which require discussion are whether claimant has shown a causal relationship between his physical and psychological problems and the accident, whether the Judge of Industrial Claims erred in failing to find a date of MMI and in finding that Rain remains TTD, whether the Judge of Industrial Claims erred in ordering an independent medical examination post-hearing and whether claimant is entitled to an attorney’s fee below.

.We find no error in the requirement of a post-hearing independent medical examination nor in the failure to find a date of MMI. Sections 440.29(1) and 440.-25(3)(b) Fla.Stat. (1977) authorize such examinations; section 440.25(6) Fla.Stat. (1977) requires injured employees to submit to physical examinations if ordered. While section 440.25(3)(b) contemplates that independent examinations will be ordered where there is a conflict in the medical evidence, no such requirement appears in Section 440.29(1). Under Lu-Mar Enterprises, Inc. v. Mazur, IRC Order 2 -2456 (1974) the Judge of Industrial Claims may order independent medical examinations even where there is no conflict in the medical evidence so long as the employer/carrier is not required to pay for the examination. Here, no such cost was imposed upon the employer.

ANRET’s argument that sections 440.29(1) and 440.25(3) contemplate the use of independent witnesses before entry of the compensation order is not supported by the cases cited. In Palm Beach Junior College v. Aho, IRC Order 2-2985, cert. denied 339 So.2d 1171 (Fla.1976), the IRC affirmed an order which found the claimant to be TTD and required further medical examination. In Lu-Mar, supra, the IRC found no abuse of discretion in the failure to rule on the issue of MMI and the degree of permanent partial disability pending an independent medical examination. Section 440.-29(1) authorizes whatever investigations are necessary to ascertain the rights of the parties and as these cases indicate, an appropriate order may be entered pending completion of the examinations. As always, the question is whether the order is supported by competent substantial evidence.

In the instant case, the Judge of Industrial Claims was imminently correct in finding that MMI had not been reached since there is not competent substantial evidence in the record to determine whether claimant is psychologically MMI. Dr. Freeman testified that Rain needed a thorough psychological workup. This testimony along with Dr. Freeman’s refusal to assign a PPD rating because he did not think Rain’s mental and physical status had been sufficiently evaluated and the Judge of Industrial Claims’ observation of the claimant at the hearing support the finding that claimant continues to be TTD. Crowell v. Messana Contractors, 180 So.2d 329 (Fla.1965). We affirm the order on these points.

In the event Dr. Petty is not a psychiatrist, the Judge of Industrial Claims should order that Rain be psychologically evaluated to determine if his continued complaints are causally related to the industrial accident.

The finding that the accident was within the scope and course of Rain’s employment is supported by competent substantial evidence. However the finding of a causal relationship is premature. There is not, at this time, sufficient evidence in the record to support such a finding. We reverse on this point and remand for additional fact finding based on the result of the independent medical examination or examinations.

The award of attorney’s fees below is affirmed. A claimant is entitled to a fee if the employer/carrier declines to pay a claim on or before the 21st day after notice, controverts the claim or otherwise unsuccessfully resists payment of compensation. Section 440.34(1) Fla.Stat. (1977), Sherrill v. Richard M. McKenzie Trust, 2 3127 (1977), C & S Packing Co. v. Driggers, 80 FLW 776 (Fla. 1st DCA 1980). In this case, Rain’s attorney has obtained a benefit for him by having ANRET declared the employer. However, the amount of the award should not be determined until the proceedings are completed in accordance with this opinion.

The same rationale applies to the award of fees on appeal. Accordingly, we dismiss without prejudice Rain’s motion for attorney fees with instructions that it be refiled with the Deputy Commissioner for his determination upon entry of the final order.

The order is affirmed on all other points.

Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

McCORD and THOMPSON, JJ., and WOODIE A. LILES (Ret.), Associate Judge, concur.

ON PETITION FOR REHEARING OR CLARIFICATION

ANRET petitions the Court for rehearing or clarification urging that our prior opinion could be construed as ordering reimbursement of benefits when the evidence of a causal relationship between claimant’s disability and the industrial accident is insufficient. To avoid any confusion as to this issue, we here clarify that opinion.

The causal relationship between claimant’s back injury and the accident is supported by the logical cause doctrine. Wilhelm v. Westminster Presbyterian Church, 235 So.2d 726 (Fla.1970). Claimant injured his back on December 21, 1977, was hospitalized through the emergency room on December 22, 1977, with a diagnosis of lumbar disc disease without rupture, rehospitalized on January 4, 1978, with probable psychogenic vomiting and acute back strain, and rehospitalized again on March 3, 1978, with psychogenic vomiting. Claimant has shown' a serious injury and a logical cause for it. The employer has not proven that another cause is more logical and consistent with reason.

There is evidence that claimant was MMI from a neurological standpoint as of February 21, 1978. However, claimant continues to have the stomach problems and back pain and testified he cannot work. There is no competent, substantial evidence that the psychogenic vomiting is causally related to the industrial accident or that the continuing back pain is sufficient to prevent claimant from working. Additional medical examinations have been ordered to determine if these problems are psychological and if they are causally related to the accident.

On remand, the deputy commissioner should determine the reimbursement Sparrow Condominiums, Inc., is entitled to at this time, including any medical treatment or care which was causally related to the compensable accident and properly paid in accordance with Glades County Sugar Growers, Inc. v. Gonzales, 388 So.2d 333 (Fla. 1st DCA 1980). After the examinations are completed, the deputy commissioner shall determine the additional reimbursement, if any, to which Sparrow Condominiums, Inc., is entitled.

McCORD and THOMPSON, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.

      . ANMC lists 16 issues; ANRET list nine “points” which, for the most part, include the issues raised by ANMC. For some obscure reason, the appellants presented their issues in different order. While the Appellate Rules do not establish procedures for cases in which there are multiple appellants, we think a common sense approach to the situation would expedite review. When two or more appellants intend to raise and argue the same issues it would be helpful if they would agree to a format for the presentation of their joint issues. In the same vein, and for future guidance we note that both ANMC and ANRET filed 50 page initial briefs and 12 and 13 page reply briefs. The reply briefs were identical on the joint issues; the initial briefs contained many identical pages and paragraphs. This court does not need to read the same arguments twice. We recognize that appellants were within their rights in filing these briefs; however, parties, aware as they should be of this court’s work load, should cooperate in not swamping the court with unnecessary paper work.
      We would also point out that there is no need for a party to file duplicative answer briefs for each appellant. One brief, addressed to all appellants will suffice, especially if the issues being argued are the same.
      This common sense approach to such problems would ultimately benefit the litigants: presentation of the issues in a clear and concise format and a reduction of the reading material which the court must consider would facilitate processing of appeals.


author: SCHWARTZ, Judge.

text:
    WEATHERHEAD COMPANY, Appellant, v. Salvatore COLETTI and Tonya Coletti, his wife, Salvatore L. Coletti and Tonya Coletti, as next friends of Christine Coletti, a minor, Sea Horse Motel, Inc., and Public Gas Company, Appellees.
    No. 80-1217.
    District Court of Appeal of Florida, Third District.
    Nov. 25, 1980.
    Rehearing Denied Feb. 18, 1981.

      Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Claudia B. Greenberg, Miami, for appellant.
    Kurzban & Kurzban and Steven M. Weinger, Miami, Conroy & Simberg and Bruce F. Simberg, Hollywood, for appellees.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and LILES, WOODIE A. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The trial judge denied the appellant Weatherhead Company’s otherwise timely motion to dismiss for lack of jurisdiction over its person, explicitly on the ground that the jurisdictional objection had been waived by the filing, prior to the motion, of a “notice of appearance” of its counsel. Although this ruling was understandably made in accordance with a formidable array of Florida authority, we hold to the contrary and therefore reverse the order below.

The effect of a notice of appearance upon a later asserted jurisdictional objection is an issue of first impression in this court. In ruling on related questions, however, we have held that “[a] general appearance ordinarily will be effected by making a motion involving the merits of plaintiff’s claim and his right to maintain the suit and secure the relief sought.” McKelvey v. McKelvey, 323 So.2d 651, 653 (Fla. 3d DCA 1976); see also, Gelkop v. Gelkop, 384 So.2d 195, 203 (Fla. 3d DCA 1980) (Schwartz, J., dissenting in part, specifically concurring in part); Kirshner v. Shernow, 367 So.2d 713 (Fla. 3d DCA 1979); Lawrence v. Lawrence, 130 So.2d 639 (Fla. 3d DCA 1961). Such statements do not, it is true, constitute a determination that the converse is also correct-that is, that a document which seeks no relief whatever and is not itself inconsistent with an assertion of lack of jurisdiction will not serve to waive that objection. We now take that step. There is no basis in the rules and no reason in policy for a determination that the mere filing of an entirely neutral and innocuous piece of paper, which indicates no acknowledgment of the court’s authority, contains no request for the assistance of its process, and, most important, reflects no submission to its jurisdiction should nevertheless be given just that effect. Such a conclusion represents, we think, no less than the apotheosis of a meaningless technicality. It cannot be accepted in a judicial era which requires that, as far as is consistent with orderly procedure, the rights of parties be decided on the merits of their positions. We thus entirely agree with the contrary opinion of Judge Robert Smith, specially concurring in Marine Distributors of Virginia v. Kelly, 374 So.2d 592, 593 (Fla. 5th DCA 1979), appeal dismissed, 383 So.2d 1198 (Fla.1980):

The rules of civil procedure know no such thing as a ‘notice of appearance’ and they extract no penalty for the use of it as a convenient way of placing counsel’s name and address on the record to avoid court action on some extra ordinary early application by the plaintiff, with notice to defendant personally but not to his counsel, or to guard against an unnoticed default entered upon some later inadvertence by defendant’s counsel. Rule 1.140(b) permits the simultaneous assertion, without waiver, of jurisdictional defenses and defenses on the merits. The similar federal rule has been construed to permit the filing of substantially inconsequential papers such as this ‘notice of appearance’ without waiver of the right to file a timely pleading contesting the court’s jurisdiction of the defendant’s person. Fed.R.Civ.P. 12(b); Grammenos v. Lemos, 457 F.2d 1067 (2d Cir. 1972); Housing Authority of City of Atlanta v. Millwood, 472 F.2d 268 (5th Cir. 1973); Wright v. Yackley, 459 F.2d 287 (9th Cir. 1972). If we had not so recently and repeatedly enforced the common law rule, I would vote for its assignment to oblivion.

Since, unlike Judge Smith, we are not bound by any prior inconsistent decision, we are free to adopt the views so well expressed in his opinion, notwithstanding that, by doing so, we bring ourselves into direct conflict with decisions of each of our sibling courts of appeal. Fulmer v. Northern Central Bank, 386 So.2d 856 (Fla. 2d DCA 1980); Marine Distributors v. Kelly, supra; Hotel and Restaurant Employees Union v. Lake Buena Vista Communities, Inc., 349 So.2d 1217 (Fla. 4th DCA 1977); Viator v. Morgan Construction Co., 344 So.2d 657 (Fla. 1st DCA 1977), cert. denied, 352 So.2d 173 (Fla.1977); Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1st DCA 1976), cert. denied, 351 So.2d 408 (Fla. 1977); see also, White v. Nicholson, 386 So.2d 74 (Fla. 2d DCA 1980). We accordingly hold that the notice of appearance had no effect on Weatherhead’s ability to raise the claim that it was not subject to the jurisdiction of the court. Accord, Pacific Lanes, Inc. v. Bowling Proprietors Association of America, Inc., 248 F.Supp. 347 (D.Or.1965); Alford v. Addressograph-Multigraph Corp., 3 F.R.D. 295 (S.D.Cal.1944), appeal dismissed, 143 F.2d 595 (9th Cir. 1944); see, D’Amico v. Treat, 379 F.Supp. 1004 (N.D.Ill.1974), affirmed, 510 F.2d 976 (7th Cir. 1975) (appearance does not waive objection to venue).

We must therefore consider the merits of Weatherhead’s motion to dismiss. Weatherhead is a foreign corporation which was joined as a defendant in three consolidated damage suits and as a third-party defendant for contribution and indemnity, because it had allegedly negligently manufactured a multi-valve assembly later incorporated into a liquid petroleum storage tank. The tank was installed at a Marathon Shores motel. In 1979, the tank exploded, causing serious personal injuries and extensive property damage. “Personal” service was attempted on Weatherhead in Cleveland, Ohio under Section 48.-193(l)(f)(2), Florida Statutes (1979), the provision of the long-arm statute which applies under some circumstances when a product manufactured elsewhere causes injury within the state of Florida. For two separate reasons, the service was ineffective. First, the general and conclusory jurisdictional allegations in the amended complaints and third-party complaint were entirely insufficient. Life Laboratories, Inc. v. Valdes, 387 So.2d 1009 (Fla. 3d DCA 1980), and cases cited. Second, and more significant, it was established that the product manufactured by Weatherhead was made and distributed sometime in the 1950s well before the 1970 effective date of thq original statutory predecessor of Section 48.193. Thus, the provision invoked below could not apply to this case. Tako v. Mayer Rothkopf Industries, Inc., 388 So.2d 1092 (Fla. 3d DCA 1980) and cases cited.

For these reasons, the order under review is reversed and the cause remanded with directions to grant the motion to dismiss, without prejudice to any further attempt by the appellees to perfect service on Weatherhead under alternative statutory procedures.

Reversed and remanded.

      . The document stated simply:
      TO: CLERK OF THE ABOVE STYLED COURT
      PLEASE TAKE NOTICE of the appearance of the Law Firm of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius as counsel for Weatherhead Company.

      . Jurisdiction to review the order is conferred by Fla.R.App.P. 9.130(a)(3)(C)(i).

      .The closest prior case is Paulson v. Faas, 171 So.2d 9 (Fla. 3d DCA 1965), which held that an extra court stipulation extending the time to answer did not waive a jurisdictional defense. This conclusion is at least not inconsistent with the one reached in this case.

      . The appellees suggest that the “notice of appearance-automatic waiver of jurisdiction” rule has the advantage of certainty of application in the trial court. It seems to us, however, that a rule which gives no effect whatever to a notice of appearance is just as clear as the contrary one which makes it decisive. In any case, it is no recommendation of an unsound doctrine that it is easy to administer.

      . Judge Smith indicated his position “in favor of a waiver rule applying only when the defendant, without reserving his jurisdictional objection, takes some action the effect of which is to request relief on the merits. See, McKelvey v. McKelvey, 323 So.2d 651 (Fla. 3d DCA 1976); First Wisconsin Nat'l Bank of Milwaukee v. Donian, 343 So.2d 943 (Fla. 2d DCA 1977), cert. denied, 355 So.2d 513 (Fla.1978).” Since only the effect of the notice of appearance is presently before us, we need not now indicate the contents of an alternative rule. We merely decide that the notice is immaterial in deciding the waiver question.

      . There would be a different result if an appearance gave rise to some detriment to the adverse party. See, Spearman v. Sterling S. S. Co., Ltd., 171 F.Supp. 287 (E.D.Pa.1959), discussed in Pacific Lanes, Inc. v. Bowling Proprietors Ass’n of America, supra, 248 F.Supp. at 348-49. No such disadvantage appears in this case.

      . Pursuant to Section 48.194, Florida Statutes (1979).

      . This will no longer be the case under the new Fla.R.Civ.P. 1.070(i), effective January 1, 1981. See, In re Rules of Civil Procedure, 391 So.2d 165 at 166 (Fla.1980) (Case no. 58,986, opinion filed, October 9, 1980), slip opinion at 3.

      .See, Atlas Aircraft Corp. v. Buckingham, 302 So.2d 163 (Fla. 4th DCA 1974). We specifically express no opinion as to Weatherhead’s amenability to service through the secretary of state under Sec. 48.181, Fla.Stat. (1979), or the effect upon that issue of the fact that the corporation was apparently formally registered to do business in Florida between 1950 and 1959.


author: SCHEB, Chief Judge.

text:
    CITY OF TARPON SPRINGS, a Florida Municipal Corporation, Appellant, v. STATE of Florida ex rel. Thomas MEISTER and Oscar Taylor, Appellee.
    No. 79-2341.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 1980.
    Rehearing Denied Jan. 30, 1981.

      Herbert Elliott, Tarpon Springs, for appellant.
    J. E. Satterfield, Clearwater, for appellee.
   SCHEB, Chief Judge.

The trial court issued a peremptory writ of mandamus ordering the City of Tarpon Springs to reinstate two employees it had discharged without following procedures set out in its ordinances. We reverse because reinstatement was improperly ordered where there was no determination that the employees had a clear right to be reinstated.

The City of Tarpon Springs discharged Thomas Meister and Oscar Taylor on September 16, 1977, on the ground that they had stolen some of its water meters. At that time the City’s ordinances provided that it could discharge employees only for cause and that a terminated employee was entitled, upon request, to a hearing before the City’s Merit System Personnel Board. Meister and Taylor petitioned the Board for review, and on December 16, following an evidentiary hearing, the Board ruled against them.

The City’s ordinances also provided for a new hearing before the City Commission, provided request was made within fifteen days of the decision of the Board. On December 22, 1977, Meister and Taylor requested a hearing de novo before the Commission. When the Commission failed to conduct a hearing, they petitioned the circuit court for a writ of mandamus to require the City to reinstate them. The court issued an alternative writ on February 8, 1978. On April 12, while the litigation was in progress, the City conducted a hearing. Over the objection of Meister and Taylor, the Commission simply had the record of the Merit Board hearing read aloud and copies furnished to the commissioners for their review. The city attorney advised the Commission to examine the record and findings and determine whether there was substantial competent evidence to support the findings of the Merit Board. On a tie vote the Commission declined to revise the Board’s findings.

On June 27, 1978, the trial court entered a final judgment holding that the Commission’s hearing was not in substantial compliance with the City’s ordinances in that it was not a “new hearing.” Therefore, the court voided the City’s discharge of Meister and Taylor and ordered the City to reinstate them with full seniority and backpay from the date of discharge.

On August 11, the City moved to set aside that judgment under Florida Rule of Civil Procedure 1.540(b). The trial court granted the motion and on January 19, 1979, entered an amended final judgment directing the City to hold a hearing de novo to determine whether Meister and Taylor had been discharged for cause. The court also ruled that if the City determined that it had not discharged them for cause, it must reinstate them with full seniority and backpay, less any compensation they received between the time of their discharge and reinstatement.

Next, the employees moved for rehearing, and the court entered a third-final judgment on December 7, 1979, holding that the discharge of Meister and Taylor was void. As in its first judgment, the court directed the City to reinstate Meister and Taylor with reimbursement for lost wages and full seniority on the ground that the tie vote of the Commission could not sustain the action of the Merit Board. The City now challenges this third-final judgment.

At the outset we observe that the City Commission erred in failing to grant Meister and Taylor a hearing de novo. At the time Meister and Taylor requested the hearing, section 2-49 of the City Code provided, “In a hearing, the personnel board shall not be bound by technical rules of evidence, but shall use reasonable grounds and discretion to secure a fair and complete hearing of the facts of the case.” Section 2-50 provided for a new hearing before the City Commission and stated that, “[t]he commission, in conducting such hearings, shall be found by the same procedures . . . as .. . for personnel board hearings.” To follow the procedures of the Merit System Personnel Board, the Commission had to conduct “a fair and complete hearing of the facts of the case,” that is, a hearing de novo.

In its second final judgment, the trial court properly construed the City’s ordinances as requiring a hearing de novo. It also properly ordered the City Commission to conduct a hearing de novo and to determine whether Meister and Taylor were discharged for cause. It follows that the court correctly held that if the City Commission should determine that Meister and Taylor were not properly discharged for cause, the City must reinstate them with no loss of seniority and with reimbursement for lost pay.

The court, however, erred in amending its second-final judgment to order the City to immediately reinstate Meis-ter and Taylor. Mandamus is an extraordinary writ available to require an official or governmental body to perform duties required by law. State v. City of Lakeland, 112 Fla. 200, 150 So. 508 (1933); Ferris v. Board of Public Instruction of Sumter County, 119 So.2d 389 (Fla. 2d DCA 1960). It is essential that the act which the petitioner seeks to compel through the writ be ministerial and not discretionary. City of Miami Beach v. Mr. Samuel’s Inc., 351 So.2d 719 (Fla.1977); Solomon v. Sanitarians’ Registration Board, 155 So.2d 353 (Fla.1963). The City followed its procedures in terminating Meister and Taylor, and the Merit Board affirmed the termination. The City Commission has not yet held the required hearing de novo. Consequently, at this point Meister and Taylor have no clear right to be reinstated, and the trial court could not order their reinstatement. Unless it is determined that the City did not have cause to terminate them, Meister and Taylor cannot obtain reinstatement through a writ of mandamus. This is consistent with the decisions of our sister courts that under similar circumstances it is improper for a court to issue a writ of mandamus to require a city or public officer to reinstate a public employee. City of Hollywood v. Fielding, 362 So.2d 362 (Fla. 4th DCA 1978); Moneyhun v. Purdy, 258 So.2d 505 (Fla. 3d DCA 1972).

Inasmuch as mandamus is a remedy to command performance of a ministerial right and conducting the hearing was a ministerial function under the City’s ordinances, the writ issued in the second-amended final judgment compelling the City to conduct the hearing was appropriate.

Meister and Taylor were entitled to the hearing de novo; hence, their discharge cannot be final until the conclusion of the hearing. Therefore, they are entitled to their net lost wages for the period that the City deprived them of a hearing de novo irrespective of whether the City Commission ultimately determines that they were discharged for cause. The City contends that it offered to conduct the hearing on August 11, 1978, but that Meister and Taylor declined the offer. Consequently, on remand the trial court must determine the date on which the City filially offered to conduct a hearing de novo as Meister and Taylor are entitled to their net lost wages for the period from fifteen days from their request for a hearing to the time the City offered to provide one or provides one, whichever is earlier.

We have examined and find no merit to the remaining points argued by the City.

Accordingly, we vacate the writ of mandamus issued December 7, 1979, and remand to the trial court with directions that it reinstate its second-final judgment entered on January 19, 1979, with the additional provision that irrespective of whether the City Commission finds cause for termination, the employees shall receive their net lost wages for the time they were denied a hearing.

GRIMES and OTT, JJ., concur.


author: COWART, Judge.

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. Minnie Powell JOHNSON, formerly known as Minnie Powell, Appellee.
    No. 80-11.
    District Court of Appeal of Florida, Fifth District.
    Dec. 24, 1980.
    Rehearing Denied Feb. 3, 1981.

      Ira Wm. McCollum, Jr., of Pitts, Eubanks & Ross, P. A., Orlando, for appellant.
    James R. Lavigne, Winter Park, for ap-pellee.
   COWART, Judge.

This is an insurance case involving “stacking” of uninsured or underinsured motorist coverage.

On March 23, 1977, Marvin Albert Fehr-ing was operating his vehicle when it collided with a vehicle owned by Carrie D. Fudge and operated with her permission by Minnie Powell Johnson. Johnson, whose damages could be in excess of $50,000, was not a resident of the household of Fudge nor a member of her family. Everyone had insurance. Fehring had liability with Allstate with $10,000 coverage. Fudge’s policy with Reserve Insurance Company (for whom appellant Florida Insurance Guaranty Association has been substituted) covered the period from June 6, 1976, to June 6, 1977, and provided uninsured motorist limits of $15,000 per person plus medical benefits on both the vehicle involved in this collision and on another vehicle owned by Fudge. Johnson’s own insurance with General Accident covered one vehicle for the period from February 1, 1977, through February 1, 1978, and provided uninsured motorist limits of $10,000 and personal injury protection and medical benefits. Allstate tendered Johnson $10,000. General paid Johnson $5,000 PIP benefits and $1,000 medical benefits. Reserve paid Johnson $1,000 medical benefits.

On these undisputed facts the trial court held that Johnson was entitled to Reserve’s coverage of $15,000 on Pudge’s vehicle Johnson was operating and upon this Johnson was entitled to add or “stack” Reserve’s coverage of $15,000 on Fudge’s vehicle which was not involved in this collision; upon this $30,000 of coverage Johnson was held entitled to “stack” the $10,000 of uninsured motorist coverage from her own insurer General for a total uninsured motorist coverage of $40,000. The trial court also ruled that General, by providing $10,000 or Vith of the $40,000 uninsured motorist coverage, was entitled to setoff $2,500 or V-ith of the $10,000 liability coverage provided by Allstate plus the $5,000 PIP and the $1,000 medical paid by General, for a total of $8,500, against its $10,000 of uninsured motorist coverage, leaving General with a net uninsured motorist coverage exposure of $1,500. General accepted this decision, settled with Johnson and did not appeal. Reserve appeals and argues that Johnson is entitled to Reserve’s $15,000 of coverage on the vehicle she was operating, but not to the coverage on Fudge’s second vehicle, and that the anti-stacking statute prohibits Johnson, whose own vehicle was not involved in this collision, from recovering from her own insurer General and, consequently, the combined paid coverage of Allstate’s $10,000 of liability, General’s $5,000 PIP and $1,000 medical and Reserve’s $1,000 medical, totaling $17,000, should be offset against Reserve’s $15,000 of uninsured coverage, leaving no sum available to Johnson from Reserve for which appellant should be responsible.

In cases involving the stacking of uninsured motorist coverage two statutes are involved: The uninsured motorist statute, Section 627.727, Florida Statutes, which requires uninsured motorist coverage to be offered with automobile liability insurance, and Section 627.4132, Florida Statutes, commonly called the anti-stacking statute, which generally attempts to limit an insured to coverage on the vehicle involved in the accident and to prohibit various other insurance coverages from being added to or stacked upon that coverage.

The first question is whether Johnson can recover from Reserve both the $15,000 uninsured motorist coverage on the vehicle she was operating and the $15,000 similar coverage on Fudge’s vehicle which was not involved in this accident.

While the anti-stacking statute purports to apply to all claims arising out of accidents occurring on or after its effective date on October 1, 1976, and this accident occurred after that date, nevertheless, the statute does not apply to the issue of stacking the multiple vehicle coverages under Fudge’s policy with Reserve because that policy was renewed on June 6, 1976, before the effective date of the statute, and to apply the statute would unconstitutionally impair this insurance contract. Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978); Hausler v. State Farm Mutual Automobile Insurance Co., 374 So.2d 1037 (Fla. 2nd DCA 1979); Bunch v. Hartford Accident and Indemnity Co., 370 So.2d 455 (Fla. 4th DCA 1979).

The term “stacking” is used to refer to two different instances of the adding together of insurance coverage. The original or traditional use of the term “stacking” refers to the combining together of the coverages on a number of vehicles which are covered under one policy and in this sense, “stacking” has been permitted by case law in Florida for a number of years where not prevented by an applicable statute. In this use of the term “stacking,” and only in this sense, the status of the claimant as a named insured has become significant as shown by the following case law development:

In Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229, 232 (Fla.1971), the Florida Supreme Court held that the coverage of an uninsured motorist policy was determined by the uninsured motorist statute and any policy exclusions not in the statute were invalid. The court then held that under this statute there are two classes of insureds: Class I, being the named insured and relatives resident in his household, who had full protection, and Class II, being others occupying the insured vehicle with the owner’s permission, who had a qualified protection.

Tucker v. Government Employees Insurance Co., 288 So.2d 238 (Fla.1973) extended Mullis and held that a Class I insured under uninsured motorist endorsements with stated per person per accident limits attached to a policy covering two vehicles, with separate premiums charged for each, could aggregate or “stack” the limits for each vehicle and recover the total and policy provisions to the contrary were invalid. Another example of this stacking principle operating in favor of a Class I insured is Florida Farm Bureau Casualty Co. v. Andrews, 369 So.2d 346 (Fla. 4th DCA 1978), cert. denied 381 So.2d 764, 766 (Fla.1980).

However, other cases have drawn a distinction based on the status of the claimant as being or not being a named insured and have held that the owner’s coverages on a number of vehicles under one policy could not be stacked for the benefit of a Class II insured. In Travelers Insurance Co. v. Pac, 337 So.2d 397 (Fla. 2nd DCA 1976), Pac was injured while operating a vehicle insured under a fleet policy issued to his employer. The policy contained uninsured motorist coverage of $10,000 on 14 separate vehicles. Pac attempted to stack these coverages to compensate for his injuries. The court refused to approve the stacking because Pac was a Class II insured under Mullis.

The Tucker opinion cites Mullis and we think the net effect of the language quoted above is that stacking is mandated only for those insureds in the first category outlined in Mullis. Stacking is derived from the presumption that when the named insured purchases uninsured motorist coverage on more than one automobile, he intends to buy extra protection for himself and his family, regardless of whether his injury occurs in any one of his insured vehicles or elsewhere. But there is no reason to apply this result to a guest or employee injured in an insured vehicle. That person has no relationship with any other insured vehicle and the coverage on the others should not inure to his benefit. Pac, supra at 398.

The reasoning of Pac has been followed in later cases. See Liberty Mutual Insurance Co. v. Searle, 379 So.2d 131 (Fla. 4th DCA 1979); Hartford Accident and Indemnity Co. v. Richendollar, 368 So.2d 603 (Fla. 2d DCA 1979).

Therefore, Johnson was properly included as a Class II insured under Reserve’s coverage of Fudge’s vehicle involved in the accident as she was operating it with Fudge’s permission; however, Johnson is not covered under Fudge’s additional coverage on Fudge’s second vehicle because (1) Johnson was not a Class I insured because she was neither a named insured nor a relative of Fudge residing in Fudge’s household and (2) Johnson was not a Class II insured as to Fudge’s second vehicle because she did not occupy it at the time of the accident. Therefore, the trial court erred in directing that Fudge’s multiple coverages be stacked to allow Johnson an aggregate coverage of $30,000 rather than the $15,000 coverage on the one vehicle of Fudge that was involved in this accident.

The next question is whether Johnson can recover on the uninsured motorist coverage in her own policy with General. While this question would not appear to be involved in this appeal because General and Johnson have, as between themselves, settled this issue, it is involved because, as appellant argues, if General was not obligated to Johnson then Reserve would be entitled to set off against Reserve’s policy all proper set offs without proration with General.

This question involves the term “stacking” as it is sometimes used in a secondary sense referring to the adding together of coverage under different policies.

Before passage of the anti -stacking statute, Section 627.4132, Florida Statutes (1976), this second type of stacking was generally recognized and held to be proper. United States Fidelity and Guaranty Co. v. Curry, 371 So.2d 677 (Fla. 3d DCA 1979); Lezcano v. Leatherby Insurance Co., 372 So.2d 214 (Fla. 4th DCA 1979). Contra, Government Emp. Ins. Co. v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977).

Appellant claims that the anti-stacking statute applies and prohibits the stacking of coverage under the General policy upon the coverage under the Reserve policy and cites McLellan v. State Farm Mutual Automobile Insurance Company, 366 So.2d 811 (Fla. 4th DCA 1979). McLeilan does hold that this statute was intended to, and does, “eliminate stacking entirely”, even where the policies sought to be stacked were issued to different named insureds (such as to Johnson and Fudge in this case), notwithstanding that the last sentence of the statute provides:

This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.

The contrary view was taken in Kokay v. South Carolina Insurance Company, 380 So.2d 489 (Fla. 3d DCA 1980). This court and other courts have concluded that the McLeilan decision was reached through a strained judicial interpretation of legislative intent arid therefore we have declined to follow McLeilan, preferring instead to follow Kokay in holding that the last sentence of the statute prevents it from applying where, as here, the policies in question were issued to different insureds. Accordingly, we hold the trial court properly held that the anti-stacking statute did not bar Johnson from recovering from General on her personal uninsured motorist coverage and that Johnson can “stack” that coverage onto coverage under Fudge’s policy with Reserve.

The third and last problem in this case relates to setoffs against uninsured motorist coverage. Since the decision of the trial court in this case, this court has interpreted Section 627.727(1), Florida Statutes (1979), to not allow a set-off for PIP and medical benefits against uninsured motorist coverage. State Farm Mutual Automobile Insurance Co. v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980). As stated therein, our decision in Bergman expressly and directly conflicts on the same point of law with the decision of the First District Court of Appeal in Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979), and with other cases cited in Bergman. Cf. Lackore v. Hartford, 390 So.2d 486 (Fla. 4th 1980) [1980 F.L.W. 2204] (for an alternative approach).

As a result of our decisions herein and the fact that this appeal affects only the parties thereto, Paragraph 1 of the partial final judgment herein is modified to provide, subject to trial on the reserved issue of damages, that plaintiff-appellee Minnie Powell Johnson is entitled to recover from the defendant-appellant Florida Insurance Guaranty Company upon the policy issued by Reserve Insurance Company to Carrie D. Fudge the gross amount of $15,000 with a set- off of $6,000, being /oths of Allstate’s $10,000 of liability coverage, for a net recovery of $9,000.

The excellent briefs submitted by counsel were of special value to the court in this case.

As modified, the partial final summary judgment herein is

AFFIRMED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . Ch. 80-364, § 1, Laws of Fla. effective October 1, 1980, eliminates uninsured motorist coverage from Sec. 627.4132, Fla.Stat.

      . See State Farm Mutual Auto. Ins. Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979).

      . Under the usual insurance policy the term “named insured” includes any person designated as such and while residents of the same household, the spouse of a named insured and relatives of either, but others occupying an insured vehicle are only an “insured.”

      . See, e. g., Sellers v. United States Fidelity and Guaranty Co., 185 So.2d 689 (Fla.1966); Cox v. State Farm Mutual Automobile Insurance Co., 378 So.2d 330 (Fla. 2d DCA 1980).

      . Day v. United States Fidelity and Guaranty Co., 388 So.2d 351 (Fla. 5th DCA 1980).

      . Porter v. State Farm Automobile Insurance Co., 385 So.2d 1100 (Fla. 2d DCA 1980); Stephan v. U. S. Fidelity and Guaranty Co., 384 So.2d 691 (Fla. 2d DCA 1980); Burt v. State Farm Mutual Automobile Insurance Co., 383 So.2d 966 (Fla. 1st DCA 1980).

      . The Florida Supreme Court in Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla.1978), held that the uninsured motorist statute required that the tortfeasor’s liability coverage be set off against uninsured motorist coverage.

      . Reserve’s coverage of $15,000 plus General’s coverage of $10,000 totals $25,000 of which sum Reserve’s $15,000 equals /sths for the purpose of prorating Allstate’s liability coverage.


text:
    MONOGRAM PRODUCTS, INC., a Florida Corporation, Appellant, v. Joseph L. BERKOWITZ, d/b/a J. L. Berkowitz Agency, Gulf Insurance Company, Aetna Insurance Company, Peninsular Fire Insurance Company and Security Insurance Company of Hartford, Appellees.
    No. 80-202.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 1980.
    Rehearing Denied Jan. 30, 1981.

      William M. Schneikart of Jacobs, Robbins & Gaynor, St. Petersburg, for appellant.
    J. Emory Wood of Harris, Barrett & Dew, St. Petersburg, for appellee Joseph L. Berkowitz.
    W. Donald Cox of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for ap-pellees Aetna Ins. Co., Peninsular Fire Ins. Co., Sec. Ins. Co. of Hartford, and Gulf Ins. Co.
   SCHEB, Chief Judge.

The trial court awarded summary final judgments holding that the Statute of Frauds barred enforcement of an oral contract concerning insurance and that an insurance agent owed no duty to the insured to provide coverage above the limits of the policies actually issued. We reverse.

Monogram Products, Inc., sued Joseph L. Berowitz, doing business as J. L. Berkowitz Agency, Gulf Insurance Company, Aetna Insurance Company, Peninsular Fire Insurance Company and Security Insurance Company of Hartford. Monogram alleged that the defendants’ negligence and breach of an alleged oral contract resulted in inadequate insurance coverage for a fire loss at one of its warehouses.

Monogram alleged that it manufactured, imported and distributed novelty and souvenir merchandise. Since its plans called for importing and storing unusually large quantities of merchandise in early 1977, it leased a second warehouse. Realizing that the value of its inventory at the new warehouse could fluctuate as much as $200,000 in a month, Monogram asked Berkowitz, its regular insurance agent, to procure adequate insurance for the inventory prior to using the warehouse. Monogram alleged that it informed Berkowitz that $100,000 coverage on the inventory in the new warehouse would not be adequate and that due to the fluctuating inventory, coverage would have to be flexible.

In his deposition Charles Burkett, Monogram’s president, testified that Berkowitz suggested that Monogram report the amounts of inventory in the two warehouses monthly so that proper premiums could be computed at year’s end. Further, Burk-ett said that Berkowitz suggested that since the initial inventory in the new warehouse would be only $50,000 to $60,000, Monogram should set a limit to coverage of $100,000 for the inventory in that warehouse. According to Burkett, Berkowitz explained that when monthly reports indicated an inventory exceeding that amount, the policies would automatically cover it as long as inventory in both warehouses did not exceed $700,000 in value. Monogram alleged that it entered into an oral contract with Ber-kowitz to that effect. Berkowitz subsequently procured policies from the defendant insurance companies. The policies, however, limited coverage on the new warehouse to $100,000 without regard to the value of the inventory at both warehouses. Monogram was not aware of this since, claiming that it relied on the representations of Berkowitz, it had not read the policies. This, however, does not bar its claim. Blumberg v. American Fire & Casualty Co., 51 So.2d 182 (Fla.1951).

On November 26, 1977, fire destroyed Monogram’s new warehouse and its inventory valued in excess of $180,000. At that time the inventory in both warehouses was worth less than $700,000. The four insurance companies subsequently honored Monogram’s claim only to the extent of $100,-000.

Monogram sued to recover the deficit on the theories that Berkowitz had been negligent in failing to maintain adequate insurance coverage for it and had breached the alleged oral contract and was therefore liable. It also alleged that the insurance companies were liable for the actions of Ber-kowitz as their agent. Each defendant moved for summary judgment on two grounds: (1) the Statute of Frauds barred enforcement of Monogram’s claim because the alleged contract was not in writing and could not be performed in one year- as required by section 725.01, Florida Statutes (1979), and (2) Berkowitz had no duty to maintain adequate insurance for Monogram. In their motions Aetna and Peninsular added that even if their agent Berkow-itz made the alleged agreement, there was no evidence that he acted as their agent on this occasion; while Gulf and Security contended they were not liable because Ber-kowitz was not even their agent. The trial court awarded summary final judgments to all defendants on the grounds that Berkow-itz had no duty to provide insurance to Monogram over the limits of the policies actually issued, and that the Statute of Frauds barred enforcement of the alleged oral contract. This appeal by Monogram followed.

Initially, we note that the liability of an insurance agent for failure to procure coverage as agreed is recognized in Florida. First National Insurance Agency v. Leesburg Transfer and Storage, Inc., 139 So.2d 476 (Fla.2d DCA 1962). Florida also recognizes both oral contracts to procure insurance and oral contracts of insurance. Hanover Fire Insurance Co. v. Hiers, 79 Fla. 408, 84 So. 605 (1920); State Farm Fire & Casualty Co. v. Hicks, 184 So.2d 685 (Fla.2d DCA 1966); 18 Fla.Jur. Insurance §§ 337 38 (1971); see § 627.401, Fla.Stat. (1979). Hence, the Statute of Frauds applied only if the alleged oral contract could not have been performed within one year. § 725.01, id. Monogram alleged that it and Berkow-itz had agreed that Berkowitz would procure insurance coverage immediately. Where, as here, an oral contract is at issue, the Statute of Frauds does not bar enforcement of that contract if the parties intended for it to be performed within one year. First Realty Investment Corp. v. Gallaher, 345 So.2d 1088 (Fla.3d DCA 1977). From the pleadings, affidavits and depositions, it appears that a factual issue existed as to the intent of the parties as to whether coverage should be procured immediately; hence, none of the defendants were entitled to a summary judgment on the basis of the Statute of Frauds.

The defendants also rely on the trial court’s holding that Berkowitz had no duty to provide insurance to Monogram over the limits of the policies actually existed. Assuming the existence of the alleged oral contract, Berkowitz owed Monogram the duty to procure insurance as they had agreed. Burns v. Consolidated American Insurance Co., 359 So.2d 1203 (Fla.3d DCA 1978). Therefore, the trial court improperly awarded summary judgment on this ground.

Aetna and Peninsular argue that irrespective of entitlement on the above grounds, the court properly awarded summary final judgment to them because Ber-kowitz did not act as their agent. We find sufficient evidence to raise a factual issue as to their relationship with Berkowitz, however. Aetna and Peninsular stated in their motions for summary judgment that Berkowitz was their general agent, and, in fact, a written agency agreement existed between Berkowitz and the companies. This indicates that Berkowitz may have been acting as the agent of Aetna and Peninsular. Monogram states that it relied on Berkowitz to obtain proper coverage for its inventory. As Couch states, however, “giving an insurance agent general authority to insure property with discretion to select the company, and to cancel and replace policies, does not make such agent the agent of the insured, and not of the insurer in the issuance of the policy.” Couch, Cyclopedia of Insurance Law § 25:100 (1960).

On the other hand there was a history of Monogram relying on Berkowitz to handle its insurance needs. Further, Berkowitz did not specify which companies he would procure insurance through when Monogram requested coverage. Thus, Berkowitz may have been acting as an agent for either the insurance companies or Monogram when he procured the policies. See Karam v. St. Paul Fire & Marine Insurance Co., 265 So.2d 821 (La.App.1972), aff’d., 201 So.2d 728 (La.1973); 16 J.A. Appleman & J. Appleman, Insurance Law and Practice § 8725 (1968); 18 Fla.Jur. insurance § 316 (1971). Consequently, Aetna and Peninsular failed to conclusively establish that Berkowitz was not acting as their agent in this instance, and the awards of summary judgment cannot be sustained on that ground.

Gulf and Security stand in a different relationship to Berkowitz than Aetna and Peninsular. They reassert, as they did in the trial court, that Berkowitz was not their agent but merely brokered the insurance contracts with them through another insurance agency. Monogram did not refute their showing that they had no contractual relationship with Berkowitz. Further, Monogram did not establish the factual issue of ratification in the trial court, as it now attempts to assert on appeal. Therefore, the trial court properly awarded summary final judgments to Gulf and Security.

Accordingly, we reverse the summary judgments awarded to Berkowitz, Aetna and Peninsular; we affirm the summary judgments in favor of Gulf and Security. We remand for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.


author: BUCK, MORISON, Associate Judge.

text:
    MANATEE CONVALESCENT CENTER, INC., Appellant, v. Vera Marie McDONALD, Appellee.
    No. 80-714.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 1980.
    B. J. Owens of Staab & Montgomery, Chartered, Bradenton, for appellant.
    Daniel B. Schuh of Schuh & Schuh, St. Petersburg, for appellee.
   BUCK, MORISON, Associate Judge.

This is an appeal from an order dismissing with prejudice a complaint which sought to collect from a wife the cost of her husband’s hospitalization. The issue presented is clear and uncluttered. The solution is not. The issue is whether or not a wife is subject to an action by a facility which has provided medical or medically related services to her husband and for which the wife is not otherwise obligated either by contract or statute.

The common law, given vitality in this state in 1845 when the statutes of Great Britain were collected and reported to the First General Assembly of the Legislature of Florida, is the fountainhead of the rule that a husband is responsible for the necessaries of his spouse, and medical expenses fall clearly within that category of obligations. Correll v. Elkins, 195 So.2d 27 (Fla. 1st DCA 1967); Holiday Hospital Association v. Schwarz, 166 So.2d 493 (Fla. 2d DCA 1964). Historically, courts were never called upon to consider a converse application of the doctrine where the wife was sued by a third party creditor claiming to have extended necessaries for the husband’s benefit. This was because at common law a married woman was deemed legally incapable of incurring any obligations independent of her husband.

The rigidity of the common law in dealing with interspousal rights and liabilities was broken by the Supreme Court of Florida in Gates v. Foley, 247 So.2d 40. (Fla.1971). There a wife was granted the right to claim loss of consortium against another causing personal injuries to the husband. In that opinion, Justice Adkins made the following cogent observations in finding that where the wife was being denied a substantive right due to some reason of the common law no longer apparent, the rule denying her the right may take flight with it:

The law is not static. It must keep pace with changes in our society, for the doctrine of stare decisis is not an iron mold which can never be changed.
It may be argued that any change in this rule should come from the legislature. ... Legislative action could, of course, be taken, but we abdicate our own function, in a field peculiarly non-statutory, when we refuse to consider an old and unsatisfactory court-made rule.

247 So.2d at 43.

While the proposed equal rights amendment to the Florida Constitution urged by the Constitution Revision Commission a few years ago was rejected by the electorate, and the word “sex” does not appear in the second sentence of article I, section 2 of that constitution, the movement of the law has inexorably been toward equality of the sexes. This has been most notable in the area of the maintenance and support, traditionally seen as a duty only of the male partner to the marital contract. In 1971, almost a decade ago, the legislature saw fit to overhaul Chapter 61 by changing all references therein from “husband” and “wife” to “spouse” or “party.” Section 61.-08, Florida Statutes (1979), most significantly was amended to provide that the court could grant alimony to either party thus recognizing that in some instances the male partner may be unable to fund his necessaries, including hospitalization and medical expenses. So, as between the parties, the rights of the husband to have contributions- from the wife for those items became coequal with those of the wife.

This court believes that by adopting the concept that the duty of support and maintenance is reciprocal and complementary, the Florida legislature has imposed in this state the same sex-neutral burden of support as the court found to exist in Pennsylvania after the passage of an equal rights amendment to the Pennsylvania Constitution. Kurpiewski v. Kurpiewski, 254 Pa.Super. 489, 386 A.2d 55 (1978). That case was relied upon by the United States District Court in a 1979 case arising in Pennsylvania, United States v. O’Neill, 478 F.Supp. 852 (E.D.Pa. 1979), where the court found the wife liable for counsel fees for the husband’s criminal defense because they were necessaries. The court stated:

We reach our conclusion in favor of the government, however, by applying the common law of Pennsylvania. In Pennsylvania, a husband has a legal duty to support his wife and children. When he neglects this duty, one who supplies necessaries for their support is entitled to recover their cost in an action under the common law, which raises an implied promise by the husband to repay. Jenkins v. Jenkins, 246 Pa.Super. 455, 371 A.2d 925 (1977). . . . Therefore a wife can be liable for the costs of necessaries provided to her husband so long as it is shown she is capable of bearing the financial burden.

478 F.Supp. at 854.

The court then proceeded to discuss whether or not legal fees could be deemed necessaries and concluded that they were, noting that “the costs of legal representation are just as important and necessary as the costs of medical expenses for which a spouse would be liable.” 478 F.Supp. at 855.

A recent New Jersey supreme court decision points up the trend towards modification of the common law rule so as to equalize the financial responsibilities of each spouse for the necessaries of the other. In that case the court determined to apply the decision prospectively to achieve substantial justice in light of the reasonable expectations of the parties. Jersey Shore Medical Center-Fitkin Hospital v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980).

Less helpful is State University Hospital v. Moyer, 62 Misc.2d 761, 309 N.Y.S.2d 741 (1970), where the court held the wife could not be responsible for the husband’s hospital bills in the absence of a special agreement. There is, however, a hint or suggestion in the ruling that while the wife had no such burden at common law she might be liable if it were not for her patent financial inability to pay the medical bills and attorney’s fees owed by her husband.

Changing times demand reexamination of seemingly unchangeable legal dogma. Equality under law and even handed treatment of the sexes in the modern market place must also carry the burden of responsibility which goes with the benefits. Justice Terrell’s colorful observations in 1942 about the status of women is even more apt now than then:

The disability of coverture was the product of a period in which man was smeared with the externals of a potential culture. The wife was little more than a chattel and was considered incapable of taking an education or following a career. All she was expected to thrill over was accouchement and the kitchen. The drawing room and the woman’s college were as far in the future as it was to John Marshall when Justinian proclaimed his Code. It was the dark ages of the common law but it had its renaissance. The fact that woman has an I.Q. rating the equivalent of man’s is no longer an open question. She has entered the trades, crafts, business, and professions and has demonstrated marked skill in all of them except in cases where mere physical prowess is the deciding factor. She has not achieved distinction as a prize fighter, a lumberjack, or a stevedore. She is directing much of the world’s business; she has created and controls much of its wealth, she sits on boards of directors, runs schools, charities, and hospitals, is a sane counsellor, and has served as judge, Governor, United States Senator, Congresswoman, and legislator, and is the directing hand in many institutions that are nominally conducted by men, all this absent the “hunch” of a husband.
It is utterly foolish to contend that in marriage, the personality of the wife is submerged in that of the husband. Personalities differ as the ones who wear them but they do not merge in husband and wife unless one or the other happens to be of the floor dummy variety. So if there was ever sound reason for the disability of coverture, that reason has disappeared, every element on which it was predicated has been outmoded and discarded. In the marital state, husband and wife are partners and equals; in business both know their way about and being so there is no earthly reason why the wife should be hobbled by such an impediment. There is every reason to discard it when its main use is to void her obligations.

Merchant’s Hostess Service of Florida, Inc. v. Cain, 151 Fla. 253, 257-58, 9 So.2d 373, 375 (1942).

We therefore hold that a wife is liable for the necessaries of her husband. Because the parties had a right to rely upon prior law, we adopt this principle prospectively so that it applies only to debts incurred after the date of this decision. Therefore, we affirm the order of the trial court.

HOBSON, A.C.J., and GRIMES, J., concur.

      . We leave open the question of whether, in light of our decision, the common law rule ought to be interpreted to mean that one spouse will be held responsible for the necessaries of the other only if the resources of the spouse who incurred the debt are insufficient to pay it. See Jersey Shore Medical Center-Fitkin Hospital v. Estate of Sidney Baum, 87 N.J. at 149-150, 417 A.2d at 1009-10.


author: McCORD, Judge.

text:
    ARIZONA PROPERTIES MARKETING COMPANY, INC., an Arizona Corporation, Appellant, v. Robert D. ALLEN and Edda Allen, Husband and Wife, Appellees.
    No. OO-463.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1981.
    Rehearing Denied Feb. 17, 1981.
    Philip S. Parsons, MacFarlane, Ferguson, Allison & Kelly, Tallahassee, for appellant.
    Cecil G. Costin, Jr., Port St. Joseph, for appellees.
   McCORD, Judge.

This appeal is from an order denying appellant’s motion for an order directing levy upon appellees’ homestead located in Franklin County, Florida. The appellant was plaintiff below and appellees were defendants. The order states as follows:

THIS CAUSE came on to be heard before the Court on the Plaintiff’s Motion for an Order Directing Levy on real property of the Defendants known as Sportsman’s Lodge in Franklin County, Florida pursuant to a General Judgment rendered in the State of Arizona on April 5, 1976, in Case No. 152,731 against the Defendants on the grounds that said Judgment in Arizona represented a claim by Plaintiff against Defendants on an obligation wherein Defendants were a party to a contract in Arizona that provided among other things for the Plaintiff to be given a simultaneous mortgage upon the Sportsman’s Lodge property in Franklin County, Florida as well as other properties in Arizona in consideration of an exchange by Plaintiff of certain Arizona property to a third party who had conveyed Sportsman’s Lodge to the Defendants. The Defendants filed a Motion to Dismiss or Strike the Motion for Order Directing Levy on the ground that the contract on Sportsman’s Lodge property was involved in the Arizona lawsuit where an election was made by Plaintiff to waive the enforcement of the contract and seek damages for breach of contract which resulted in the General Judgment entered in the Arizona case. Plaintiff now seeks to enforce this Judgment claiming a specific lien against the real property of Defendants known as Sportsman’s Lodge in Franklin County, Florida. The Court has examined the authenticated copies of the proceedings in Arizona which discloses that the Arizona Court has jurisdiction over the persons of the Defendants Allen. At the trial of said cause the Plaintiff elected to waive the enforcement of the contract involving the Sportsman’s Lodge property and sought damages for breach of contract. A Final Judgment was entered against the Defendants in the amount of $83,500.00 for compensatory damages plus interest at the rate of 8% per annum from December 12,1974, attorney’s fees of $14,500.00 and punitive damages in the amount of $5,000.00 plus interest at the rate of 6% per annum. A partial Satisfaction of Judgment was filed on August 10,1976 in the amount of $23,510.31 which should be credited to the total amount of the Judgment and interest. This Court recognized that Judgment under the full faith and credit clause of the Constitution as a General Judgment against the Defendants by Summary Judgment on May 6, 1977.
The Court having considered the motion of the Plaintiff and evidence in said cause is of the opinion that the Plaintiffs election of remedy in the Arizona case to waive enforcement of specific performance of the contract which provided for a mortgage on the Sportsman’s Lodge property and seek damages for breach of contract merged the claim into the judgment and that this Court is now precluded from changing the nature of the Arizona Judgment to provide for a specific lien upon the real property in Florida which the Plaintiff abandoned claim to in the Arizona court.

It is thereupon, on consideration thereof

ORDERED AND ADJUDGED as follows:

1. That the Summary Judgment heretofore entered in this cause on May 6,1977, recognizing the Arizona Judgment as being entitled to full faith and credit in the State of Florida, be, and the same is hereby ratified and confirmed that the Plaintiff do have and recover from the Defendants the sum of $111,335.55 as the balance due on this Judgment as of this date, for all of which let execution issue.
2. That the claim of the Plaintiff for a specific lien against Florida real property, be, and the same is hereby denied.

Prior to this order the trial court had entered an order of summary judgment on May 6, 1977, in which it found that the Arizona judgment constitutes a valid judgment entitled to full faith and credit in the State of Florida with the same effect as a Florida judgment and directed that execution issue. Then subsequently, on May 18, 1977, the trial court reserved ruling on the question of whether the judgment creates a lien against Florida property which can be reached by execution or levy. While this May 18 order appears to conflict with the May 6 order, the apparent intent of the trial court was to reserve ruling on whether or not execution or levy could be made on appellee’s homestead property. Appellant sought levy on the property in question, but the Franklin County Sheriff refused to levy on the ground that he had been served a copy of a judicial determination that the property constituted homestead. Appellant then filed with the trial court a motion for order directing the sheriff to levy upon and sell the property pursuant to appellant’s judgment lien, appellant contending that its claim against appellees represented by the judgment “constitutes an obligation contracted for the purchase of the property against which plaintiff seeks to levy and thus this property as to the plaintiff is not exempt from forced sale within the meaning of Article X, Section 4, Florida Constitution of 1968.” The above-quoted order of May 1, 1979, from which this appeal is taken, was the trial court’s ruling on that motion.

Appellant argued before the trial court and argues here that the obligation upon which appellant’s judgment is based arose from an agreement between the parties in 1974 providing for a three-party simultaneous closing of an exchange of property and obligations for payment; that appellant agreed to transfer certain real and personal property in Arizona to appellees, who in turn agreed to simultaneously transfer the same property to a third party who would in turn transfer to appellees real property in Franklin County, Florida (the property upon which appellant now seeks to levy); that as consideration, appellees agreed to execute a promissory note in favor of appellant secured by a first mortgage on the Florida property; that all parties agreed to place the necessary documents of title in other instruments with an escrow agent prior to the date of closing; that without appellant’s knowledge and consent, appellees obtained appellant’s deed and other documents of title, transferred the property in order to acquire Florida property, and immediately moved to Florida as residents of the Florida property never paying appellant the amount agreed nor delivering the note and mortgage required by the agreement. It appears that in the Arizona action (as the trial court pointed out in its order) appellant sought alternative relief seeking on the one hand a monetary judgment for breach of contract and on the other specific enforcement of the contract which, if granted, would have required appellees to deliver to appellant the note and mortgage of the Florida property; that in the course of the trial in Arizona, appellant elected to proceed on breach of contract and waived the remedy of specific enforcement of the contract. Appellant contends that the trial court erred in applying the doctrine of merger to deny it the relief sought. We agree.

Article X, Section 4, of the Florida Constitution provides in pertinent part as follows:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for ... obligations contracted for the purchase .. . thereof, . . . the following property owned by the head of a family:
(1) A homestead, . . . (Emphasis supplied.)

By waiving its right to specific performance of its contract with appellees in the Arizona case, appellant did not preclude any right it may have under the above-quoted constitutional provision for an execution lien upon appellee’s Florida homestead property if the judgment upon which it seeks execution is predicated upon an obligation contracted for the purchase of the property. See Porter, et al. v. Teate, 17 Fla. 813 (1880), in which the Supreme Court affirmed the decree of the chancellor which went behind a general judgment and subjected certain lands to sale to satisfy a general judgment, the court finding:

.. . The breach of the covenants and the value of the consideration was legally established by the action and recovery of judgment by Teate against Porter. The judgment establishes the amount due Teate of the consideration for the sale of the Jefferson county land, which had not been paid or otherwise satisfied.

The Supreme Court’s opinion was predicated upon a provision of the Florida Constitution of 1868 which contained in substance the same provision relating to forced sale of a homestead as does the present constitution:

A homestead ... shall be exempted from forced sale under any process of law, and the real estate shall not be alienable . . . But no property shall be exempt from sale ... for payment of obligations contracted for the purchase of said premises, Art. IX, § 1, Fla.Const. (1868).

When one elects to pursue one of two different co-existent modes of procedure and relief which are repugnant and inconsistent, the election of one precludes resort to the other. Thus having elected and pursued one of two such remedies to judgment, the doctrine of merger precludes reinstituting the action to seek the other remedy. The election of remedies and merger doctrines are not applicable to the relief appellant seeks, however. Appellant is not here attempting to reinstitute a cause of action for specific performance on the facts of its Arizona action but is merely seeking to levy upon the property in question under its general judgment which has been established by the trial court as a Florida judgment through giving full faith and credit to appellant’s general Arizona judgment.

If properly authenticated copies of the Arizona proceedings show that the judgment (or a determinable part of it) is for the purchase price of the appellees’ now homestead Florida property, levy on the property to satisfy the judgment (or such part thereof) should be directed. This would not involve, and we do not authorize, a retrial in Florida of the case which was tried in Arizona or an alteration of the judgment, or the grounds on which it is based. It only involves an examination of such portions of the Arizona proceedings as are offered and received in evidence in this cause to determine, if possible, from those proceedings whether or not the judgment, or a determinable part of it, was for the purchase price of the Florida property.

Reversed and remanded for further proceedings consistent herewith.

MILLS, C. J., and BOOTH, J., concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Donald Farrell GRANT, Appellee.
    No. 80-422.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1981.
    Rehearing Denied Feb. 25, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellant.
    Philip G. Butler, Jr., of Foley, Colton & Butler, P.A., West Palm Beach, for appel-lee.
   DOWNEY, Judge.

The State of Florida appeals from an order suppressing evidence obtained during a search of appellee’s luggage at the West Palm Beach Air Terminal. The only evidence adduced at the suppression hearing was the deposition of Deputy Sheriff Glover, who made the search and the arrest involved herein.

Glover’s deposition reflects the following occurrences. Appellee Donald Farrell Grant entered the Delta Airlines terminal at the airport in West Palm Beach at approximately 6:00 p. m. Glover was on duty as a deputy sheriff employed by the Palm Beach County Sheriffs’ Department working the airline terminal for narcotics couriers. Glover observed Grant enter the terminal, check his suitcase, and purchase a one way ticket to Chicago for cash. Glover noticed that Grant appeared very nervous, more so than most travelers. As Grant walked away from the ticket counter Glover approached him and said, “I’m with the Sheriff’s office. Do you have a minute to talk to me?” Grant said, “Yes.” Grant was nervous about his flight and said he did not want to miss his flight; Glover assured him he would not. Glover asked to see Grant’s ticket, and Grant handed it to him. Then Glover asked if Grant would mind if Glover looked at some identification and Grant produced that. Grant appeared very nervous throughout. After examining the identification Glover inquired if Grant had any objection to Glover’s looking through Grant’s luggage. Grant advised he had no objection. He did say he was afraid he was going to miss his flight, but Glover told him not to worry; he would make the flight. Glover handed the ticket back to Grant and the two men returned to the ticket counter where Glover searched the suitcase and found 2V2 ounces of cocaine and two bottles of cutting agent. Glover then placed Grant under arrest.

It appears from the order under consideration that the state contended Glover had a well founded suspicion that Grant was involved in illegal activity, thus warranting the type of stop authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, the circuit court found that the “drug courier profile” used by law enforcement officers engaged in narcotics investigations is not sufficiently reliable to justify a stop and that Glover had neither probable cause nor a well founded suspicion to stop Grant. Two of the cases relied upon by the court were State v. Battleman, 374 So.2d 636 (Fla. 3rd DCA 1979), and State v. Frost, 374 So.2d 593 (Fla. 3rd DCA 1979). The Frost case would be particularly persuasive in view of the careful analysis made of the various authorities on the subject were it not for the recent case of United States v. Mendenhall, 446 U.S. 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), which decision was not available to the trial judge when he entered the order in question.

Mendenhall, supra, is factually very similar to the case at bar. There Ms. Menden-hall had just arrived in Detroit District Metropolitan Airport on a flight from Los Angeles. As she disembarked the airplane she was observed by two Federal Drug Enforcement Administration agents who were present in the airport for the purpose of detecting the unlawful traffic of narcotics. The agents noticed that Mendenhall’s conduct was characteristic of persons unlawfully carrying narcotics, so they approached her as she was walking through the concourse, identified themselves as federal agents, and asked to see her identification and airline ticket. Mendenhall produced an airline ticket and driver’s license containing different names. When one of the agents identified himself as a narcotics agent, Mendenhall became quite shaken and extremely nervous. After returning the ticket to Mendenhall the agents asked if she would accompany them to the airport DEA office for further questioning, which she did. At the DEA office they asked if she would allow a search of her person and handbag. Although advised she had a right to decline, Mendenhall said, “Go ahead.” Mendenhall also consented to a personal search by a policewoman, although again having been advised she could decline. Two packets of heroin were found in her undergarments and she was arrested.

The Federal District Court denied a motion to suppress and Ms. Mendenhall was convicted of drug offenses. On appeal the Circuit Court of Appeals, Sixth Circuit, reversed. In a plurality decision the Supreme Court of the United States reversed the Circuit Court of Appeals, ruling essentially, that the trial court’s decision was correct. In discussing the factual setting, the Court stated that the Fourth Amendment requirement that all searches and seizures be founded on objective justification governs all seizures including those which involve only a brief detention short of an actual arrest. However, the Court noted that not all personal intercourse contact between the police and citizenry involves a seizure of the person. On this point two members of the Court stated:

We adhere to the view that a person is “seized” only when by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
Moreover, characterizing every street encounter between a citizen and the police as a “seizure,” while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. “Without such investigation, those who were innocent might be falsely accused, and those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515 [83 S.Ct. 1336, 1344, 10 L.Ed.2d 513].” Schneckloth v. Bustamonte, supra [412 U.S. 218] at 225, 93 S.Ct. [2041] at 2046 [36 L.Ed.2d 854].
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
Examples of circumstances that might indicate a seizure even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with. the officer’s request might be compelled. See Terry v. Ohio, supra, 392 U.S., at 19, n.16, 88 S.Ct., at 1879, n.16; Dunaway v. New York, 442 U.S. 200, 207, and n.6, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824; 3 LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law amount to a seizure of that person. 100 S.Ct. at 1877.

Thus, two Justices ruled there was no seizure of Mendenhall by the DEA agents on the airport concourse. In addition, the search was found to be consensual.

While the five members of the Supreme Court concurred in the judgment of the Court to reverse the Court of Appeals and reinstate the ruling of the District Court, unfortunately all of the language used by the author of the plurality opinion was not endorsed even by those concurring in the judgment. However, we have quoted above at some length portions of the opinion on which two members of the Court agreed and which we believe are particularly relevant to this case and to our times. The courts must be vigilant in the protection of constitutional rights, but they must also recognize the present day problems of law enforcement, particularly in the narcotics field. In accommodating the tension between constitutional rights of the individual and the compelling interest of the public in detecting those trafficking in illegal drugs the courts should not create artificial barriers which hobble the efforts of law enforcement to stem the ever increasing tide of drug trafficking. As three of the justices observed in the Mendenhall case:

To meet this pressing concern, the Drug Enforcement Administration since 1974 has assigned highly skilled agents to the Detroit airport as part of a nationwide program to intercept drug couriers transporting narcotics between major drug sources and distribution centers in the United States. Federal agents have developed “drug courier profiles,” that describe the characteristics generally associated with narcotics traffickers. For example, because the Drug Enforcement Administration believes that most drugs enter Detroit from one of four “source” cities (Los Angeles, San Diego, Miami, or New York), agents pay particular attention to passengers who arrive from those places. See United States v. Van Lewis, 409 F.Supp. 535, 538 (ED Mich.1976), aff’d, 556 F.2d 385 (CA6 1977). During the first 18 months of the program, agents watching the Detroit airport searched 141 persons in 96 encounters. They found controlled substances in 77 of the encounters and arrested 122 persons. Id., at 539. When two of these agents stopped the respondent in February 1976, they were carrying out a highly specialized law enforcement operation designed to combat the serious societal threat posed by narcotics distribution. 100 S.Ct. at 1881.

In view of the foregoing, we hold that the contact made by Glover with Grant was not a seizure or a stop which would require either probable cause or a well grounded suspicion. Glover had the same right as any other citizen to approach Grant. He was not in uniform; he did not display a gun; he did not order Grant to comply with his requests. The tone of the entire approach appears to have been non-authoritative and Glover’s description of the incident is not patently incredible. Thus, the circuit court’s decision has no support in the record when viewed in the light of Mendenhall. Had Grant testified and denied Glover's description of the incident the record may well have supported the findings and ruling of the trial court, and we would be bound thereby. However, as we pointed out initially, the only evidence adduced at the suppression hearing was Glover’s deposition.

Accordingly, the order appealed from is reversed, and the cause is remanded for further proceedings.

REVERSED AND REMANDED with directions.

BERANEK and HURLEY, JJ., concur.

       We agree with The District Court that the subjective intention of the DEA agent in this case to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent.


text:
    Calvin MORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1607.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 1981.
    Calvin Morris, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Morris v. State, 348 So.2d 969 (Fla. 3d DCA 1977).