author: HENDRY, Judge.

text:
    George J. TALIANOFF, as Trustee, Appellant, v. ASHANTI ENTERPRISES, INC., a Florida Corporation, Appellee.
    No. 80-131.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Talianoff & Rubin and George J. Talia-noff, Miami, for appellant.
    No appearance, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   HENDRY, Judge.

Plaintiff/appellant seeks review of the order denying its motion for entry of an order to validate service of process nunc pro tunc. The undisputed factual and procedural history of the cause is recounted in the said motion, which recites in relevant part:

“1. The Court entered a Final Judgment of Foreclosure on October 6, 1977. Thereafter a public sale took place on November 14,1977 pursuant to said Final Judgment of Foreclosure and GEORGE J. TALIANOFF, As Trustee, was the successful bidder.
“2. GEORGE J. TALIANOFF, As Trustee, thereafter sold the subject property to ALEXANDER A. MACNAB and CYNTHIA L. MACNAB, his wife, by Warranty Deed. ALEXANDER A. MACNAB and CYNTHIA L. MACNAB, his wife, thereafter sold the subject property to GARTH C. REEVES, SR.
“3. American Title Insurance Company issued its Title Policy Commitment No. C374889 to the purchaser, GARTH C. REEVES, SR., and therein stated its objection to the service of process in the foreclosure action. Based upon its review of the foreclosure action American Title Insurance Company objected because of need ‘. . .for proper joinder and
service upon ASHANTI ENTERPRISES, INC., fee owner.’
“4. The Secretary of State reported PATRICIA HITCHMON as the Resident Agent and EDWARD DUFFIE as the President of ASHANTI ENTERPRISES, INC. A copy of the report of the Secretary of State is attached hereto as Petitioner’s Exhibit ‘A’.
“5. Your petitioner attempted to effect service upon PATRICIA HITCHMON at the address given in her capacity as the Resident Agent of the corporation. The Sheriff reported that he was unable to contact her and that he ‘believed avoiding service.’ A copy of the said Sheriff’s return is annexed hereto as Petitioner’s Exhibit ‘B’. Your petitioner then contacted EDWARD DUFFIE, Vice President of Capital Bank, that had financed JOHN HITCHMON, husband of PATRICIA HITCHMON, in the purchase of the subject property. He informed your petitioner that he was no longer President of
the corporation and that the President was JOHN HITCHMON.
“6. MANNY GELLER, Process Server, thereupon effected corporate service upon the corporation by serving JOHN HITCHMON as President on November 16, 1976. A copy of said proof of service is annexed hereto as Petitioner’s Exhibit ‘C’.
“7. Petitioner respectfully submits unto this Honorable Court that, based upon the facts hereinafter set forth, JOHN HITCHMON was the ‘head of the corporation’ and that service upon him was service upon the corporation, ASHANTI ENTERPRISES, INC., pursuant to Chapter 48.081, Florida Statutes. Said statute provides:
“ ‘48.081 Service on Corporations “(1) Process against any private corporation, domestic or foreign, may be served:
“(a) On the president or vice-president, or other head of the corporation
“From the time that the defendant entered into a contract of purchase with your petitioner, the said JOHN HITCH-MON personally handled all matters relating to the contract of purchase and sale, the closing of the transaction with his Attorney JOHN R. SQÜITERO of the law firm of Marx and Squitero, the operation of the building, the rental of space in the building, the payment of the mortgage payments to petitioner, the requests for additional time to make mortgage payments, and the payment of monies to petitioner when mortgage payment checks were dishonored.
“Petitioner further avers that JOHN HITCHMON personally handled all affairs relating to said mortgage and the subject premises and did it with the knowledge and approval of his wife, PATRICIA HITCHMON. When contacted by your petitioner concerning defalcations under the mortgage PATRICIA HITCHMON frequently stated to your petitioner that JOHN HITCHMON ‘. . . would take care of it.’ On frequent occasions PATRICIA HITCH-MON came to petitioner’s office with funds that she said JOHN HITCHMON instructed her to pay in order to make good on dishonored checks.
Subsequently, during the incarceration of JOHN HITCHMON your petitioner’s contacts were with PATRICIA HITCHMON who informed petitioner that she was handling matters under the directions of and with the instructions of JOHN HITCHMON.
“8. Petitioner avers that at all times pertinent and material herein JOHN HITCHMON was the ‘head of the corporation’.
“WHEREFORE, the premises considered, your petitioner respectfully requests the entry of an Order nunc pro tunc to validate the service of process effected upon the Defendant, ASHANTI ENTERPRISES, INC., by personal service made upon JOHN HITCHMON on November 16, 1976 (Petitioner’s Exhibit ‘C’); that said service be amended to read ‘JOHN HITCHMON as head of said corporation’; and that wherever the record refers to JOHN HITCHMON as President of the corporation the same be amended so as to refer to him as head of the corporation.”

The trial court denied the motion and the subsequent motion for rehearing of the matter; we believe the trial court erred in its decision, and reverse. The defendant/appellee has shown at all stages of the proceedings that it has no interest to defend. A number of years has elapsed since it abandoned the subject premises after default in meeting its obligations under the mortgage. It has not challenged the subsequent possession of the premises by the plaintiff/appellant and two successor buyers. No appearance was made either in the foreclosure proceedings or in the proceedings leading to the orders appealed from— notwithstanding the fact that in the later proceedings service was made personally. Not only was service of process made on John Hitchmon, personally, but ordinary mail and certified mail were employed to serve the resident agent (Mrs. Hitchmon) and all the other officers and directors of the corporation. See Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., 350 So.2d 539 (Fla. 1st DCA 1977). [Personal service on corporation means personal service on its officers or agents.] Woodham v. Northwestern Steel & Wire Company, 390 F.2d 27 (5th Cir. 1968) [discusses the test for determining whether service upon agent is sufficient to constitute service upon the corporation.]; and National Organization Masters, Mates and Pilots of America v. Banks, 196 F.2d 428 (5th Cir. 1952), cert, denied, 344 U.S. 868, 73 S.Ct. Ill, 97 L.Ed. 673 (1952) [The pertinent statute at the time was numbered as Section 47.17, Florida Statutes; it contained language identical to the current Section 48.081.].

Accordingly, the order appealed is reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SCHOTT AND KEYSTONE, P. A., Appellant, v. Thomas F. BLAKE, Personal Representative of the Estate of Dorothy S. Freni, Deceased, Appellee.
    No. 80-222.
    District Court of Appeal of Florida, Third District.
    April 22, 1980.
    Becker, Poliakoff & Streitfeld and Kay Latona, Ft. Lauderdale, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Curtis Carlson, Miami, for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. Stolley & Associates, Inc. v. Lawrence, 243 So.2d 446 (Fla.4th DCA 1971).


text:
    Charles David BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 78-2786.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1980.
    Richard L. Jorandby, Public Defender, and Bruce Zeidel, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on authority of State v. Paschal, 358 So.2d 73 (Fla. 1st DCA 1978), cert. den. 360 So.2d 1249 (Fla.).

DOWNEY, HERSEY and GLICKSTEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    Robert A. BUTTERWORTH, Sheriff of Broward County, Florida, Petitioner, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
    No. 80-64.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1980.
    Joseph A. Caldwell and Karen Ridge Moran of Muller, Mintz, Kornreich, Caldwell & Casey, P. A., Miami, for petitioner.
    Joseph P. Manners and George H. Tucker of Manners, Amoon, Whatley & Tucker, Miami, for respondent, Federation of Public Emp.
   DOWNEY, Judge.

Petitioner seeks review of a non-final order issued by respondent striking five of the affirmative defenses which petitioner filed in an unfair labor practice case.

Upon consideration of the petition and response filed by the Public Employees Relations Commission we are disposed to deny the petition for the reason that petitioner has not demonstrated that he will not have an adequate remedy by review of the final agency action.

Were this a judicial proceeding in which the defendant suffered the elimination of some of his alternative defenses by motion to strike, that action would not be reviewable under Florida Appellate Rule 9.130. Neither would we grant certiorari because the matter could be adequately considered on plenary appeal. See, e. g., Siegel v. Abramowitz, 309 So.2d 234 (Fla.4th DCA 1975); Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla.4th DCA 1979). We mention the foregoing simply to demonstrate that ordinarily the subject matter of this petition is not generally considered except upon full appeal. This gives rise to the rhetorical question, why would we review such non-final action in administrative proceedings?

Petitioner seeks to proceed upon authority of Florida Appellate Rules 9.130 and 9.100 and Section 120.68, Florida Statutes (1979). Unquestionably we have jurisdiction under Rule 9.100; however, since in our opinion petitioner will have an adequate remedy by review of the final agency action, we exercise our discretion and decline to review this preliminary agency action.

PETITION DENIED.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Deborah ORR, Appellant, v. STATE of Florida, Appellee.
    No. OO-245.
    District Court of Appeal of Florida, First District.
    April 23, 1980.
    F. Lloyd Blue, Jr. and J. LaDon Dewrell, Ft. Walton Beach, for appellant.
    Jim Smith, Atty. Gen., Charles A. Stampelos and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Appellant was convicted of possession of more than five grams of marijuana and this appeal is taken from the judgment entered on the jury verdict and the resulting sentence. Appellant contends the trial court erred in denying her motion to suppress the marijuana seized pursuant to a search warrant. We agree and reverse.

The application for a search warrant was supported by an officer’s affidavit, supplemented by the officer’s testimony before the magistrate which was recounted by the officer at the suppression hearing. The trial court refused to suppress the marijuana, ruling that the affidavit and the additional testimony of the affiant constituted probable cause for the issuance of the search warrant. Appellant urges, however, that the affidavit on its face must establish probable cause for the issuance of the search warrant and that the present affidavit does not do so.

We hold that the trial court erred when it considered the officer’s testimony outside the affidavit in order to determine the validity of the search warrant. An affidavit forming the basis of a search warrant must, in and of itself, demonstrate probable cause for the issuance of the warrant and cannot be supplemented by oral testimony to prove the probable cause. Article I, Section 12, Florida Constitution; Swartz v. State, 316 So.2d 618 (Fla. 1st DCA 1975), cert. den., 333 So.2d 465 (Fla. 1976).

Turning to the issue of whether the affidavit is sufficient to establish probable cause for the search warrant, we find that it is not sufficient. The affidavit states:

Heretofore, within the past ten days a confidential informant, who has proven reliable in the past, said informant having led to the arrest of persons for drug violations, further it is known by your affiant that said confidential informant has knowledge of the appearance, texture and odor of marijuana, advised your affi-ant that a quantity of marijuana was inside the above described premises and that said marijuana was observed by said confidential informant. Therefore, your affiant has probable cause to believe that marijuana is now being kept in the above described premises. (Emphasis added.)

The affidavit states only that the affiant received information from the confidential informant within the past ten days that marijuana was observed inside appellant’s house. There is no indication as to when the informant actually observed the marijuana. The affidavit should have contained the specific time or times when the informant observed the marijuana. State v. Mills, 267 So.2d 44 (Fla. 2d DCA 1972). Consequently, the trial court erred in denying appellant’s motion to suppress the evidence seized pursuant to the invalid search warrant. The judgment and sentence are

REVERSED.

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


author: WENTWORTH, Judge.

text:
    D. W. GILMORE, as Trustee in Bankruptcy for the Estate of Financial Corporation, Appellant, v. STATE BOARD OF ADMINISTRATION OF FLORIDA, Appellee.
    No. PP-34.
    District Court of Appeal of Florida, First District.
    April 23, 1980.

      David G. Hanlon of Shackleford, Farrior, Stallings & Evans, Tampa, and Albert W. Thomson of Linde, Thomson, Fairchild, Langworthy & Kohn, Kansas City, Mo., for appellant.
    Ford L. Thompson of Thompson, Wads-worth, Messer, Turner & Rhodes, Tallahassee, for appellee.
   WENTWORTH, Judge.

The appellant/plaintiff trustee for Financial Corporation appeals from a judgment entered for appellee/defendant State Board after trial before the court.

The trustee, on alternative theories of resulting trust under common law principles or provisions of Ch. 679, Florida Statutes, claims proceeds from the Board’s sale of U.S. treasury bills and notes in excess of the amount the Board would have received under a repurchase agreement on which the Corporation defaulted before the sale. The trustee argues that the transactions were merely collateralized loans. We affirm because we find no error in the ruling against the trustee on the evidence as to that issue, and a second issue as to computation of interest does not require disposition.

The trial court found that appellant proved only a sale and purchase of specific securities “subject to [the Corporation] plaintiff’s agreement to repurchase similar securities” at a given time, place and price. This finding was based on evidence that the parties’ contractual relations were governed mostly by oral communications and customary usage in the market.

By transactions in June and July 1975, the State Board made short term investments in U.S. treasury bills and notes through a security brokerage firm acting for Financial Corporation. These transactions involved payment of more than 45 million dollars for securities having a face value over 46 million dollars. A typical Corporation memorandum confirming a sale simply described the amount, denomination and maturity date of the securities, and bore the inscription: “It is expressly understood and agreed that title to these securities shall remain vested in Financial Corporation until full payment in cash or its equivalent is made therefore.” (e.s.) A report on June 17,1975, by a bank states as to securities received for the Board that “[t]hese securities are sold to you under agreement to repurchase, Interest rate 5.35%, Interest at maturity $4,458.33, Pay Out 7/17/75.” (e.s.) Other transactions contemplated that equivalent securities would be resold by the Board and repurchased by Corporation on demand.

The Corporation declared bankruptcy and a receiver was appointed July 10,1975. All the securities here in question were sold by the Board after default upon presentment to the receiver for repurchase on July 18, 1975. The Board concedes an excess of $9,004.90 in the proceeds of the sale over the amount which the Corporation was obligated to pay for repurchase of such securities if it had not defaulted on its agreement to repurchase. The Corporation claims a surplus of $62,905.61, based in part on a dispute as to interest computation the resolution of which is obviated by our conclusion on the merits.

The appellee Board correctly construes the judgment herein as recognizing the Corporation’s obligation to purchase securities of the kind presented to it by the Board on July 18 at a price fixed by the parties’ prior transactions. Appellant contends, without reference to the record or authority on the point, that such obligation necessarily implies absolute liability of Corporation for a deficiency if the Board’s sale proceeds had been less than the contract price. The further contention is that “it is only liable for the amount due under the repurchase agreement and if the securities are sold for an amount in excess of that obligation, Financial [Corporation] is entitled to the excess.” Cf. § 679.502(2) and § 679.504(2), Florida Statutes, providing for deficiency or surplus entitlement in connection with sales “only if the security agreement so provides.” Such contentions must be regarded as purely speculative on the record before us.

There is, in contrast, adequate testimony in this case based on custom and usage to support the conclusion of the trial court that upon default by Corporation the Board “had the right to utilize unconditionally the securities that it would have sold to Financial Corporation.” That evidence is consistent with the practice described in a similar case involving sale by a purchaser: “Profits realized from these transactions were retained by the Bank and not delivered to the defaulting dealer.” Union Planters National Bank of Memphis v. United States, 295 F.Supp. 1151, 1154 (W.D.Tenn.1968); rev’d, 426 F.2d 115 (6th Cir.), on grounds that property law considerations did not control income taxes; cert. denied, 400 U.S. 827, 91 S.Ct. 53, 27 L.Ed.2d 56 (1970). The evidence, in addition, is that under the parties’ agreement the Board had the right to sell the original securities at any time after acquiring them from Corporation without accountability for sale proceeds, subject only to its obligation to offer like securities for repurchase by Corporation under the terms specified by the agreement. The posture of the case presents no necessity for determining whether alternative measures of damages might have been claimed for breach by either party. Such ambiguities as might exist in the parties’ agreement were correctly resolved against the Corporation’s claim by the determination that its “failure to purchase . . . terminated any obligation on the part of Defendant toward . . . Corporation.”

The court’s further conclusion was that the evidence showed two transactions, an actual purchase and sale of securities with minor characteristics of a secured loan, and a simultaneous but separate agreement to repurchase and resell similar securities on specific terms. That conclusion is not negated by the use of loan terminology for internal purposes in the Board’s records of such transactions, nor by the definition of a buy-back price by interest computations. The several decisions to which the parties refer are all fully consistent with our determination of contractual relations between the parties on the basis of evidence of a sale, even if that evidence might not be conclusive on the question of tax consequences of such transactions. American National Bank of Austin v. United States, 421 F.2d 442 (5th Cir. 1970); cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970); Union Planters National Bank of Memphis v. United States, supra.

The judgment is accordingly affirmed.

ROBERT P. SMITH, Jr. and LARRY G. SMITH, JJ., concur.


author: SCHEB, Judge.

text:
    AMERICAN EASTERN CORPORATION, Appellant, v. HENRY BLANTON, INC., a Florida corporation, Richard R. Madden, an individual, Henry H. Blanton, an individual, and GIHLS Properties, Inc., a corporation, Appellees.
    No. 79-1264.
    District Court of Appeal of Florida, Second District.
    April 23, 1980.

      George H. Bailey of Jones, Paine & Foster, West Palm Beach, for appellant.
    Stephen D. Hughes, Largo, for appellees, Henry Blanton, Inc., Henry H. Blanton, and Gihls Properties, Inc.
    Harold N. Hume, Jr. of Allen, Knudsen, Swartz, DeBoest, Rhoads & Edwards, Fort Myers, for appellee, Richard R. Madden.
   SCHEB, Judge.

The trial court dismissed American Eastern Corporation’s case for lack of prosecution. The court found that no record activity had occurred for one year prior to the defendants’ filing their motion to dismiss, and that American Eastern had failed to show good cause why its case should not be dismissed. American Eastern appeals contending that it did show good cause under Florida Rule of Civil Procedure 1.420(e), and that, therefore, the court erred in dismissing its cause of action. We agree and reverse.

On October 23, 1975, American Eastern sued to collect on a promissory note. It sought $216,000 plus interest, attorney’s fees and court costs. During the course of the litigation, American Eastern moved for summary judgment but, on July 27, 1976, before the motion was heard, the parties filed a stipulation for judgment. The defendants agreed that they were liable to American Eastern for $216,000 plus interest at seven and one-half percent per annum from March 1, 1974, together with reasonable attorney’s fees and costs. They further agreed to pay their total indebtedness no later than August 1, 1976, with the proviso that American Eastern’s attorney’s fees and costs would be determined by agreement and that failing agreement, the court would fix them. Finally, the stipulation provided that if the defendants did not discharge their obligation by August 1, 1976, American Eastern could have a judgment entered against the defendants upon notice to their counsel.

On April 10, 1979, the defendants moved to dismiss American Eastern’s action for failure to prosecute on the ground that there had been no record activity since February 11, 1977. American Eastern filed affidavits of its two attorneys along with a memorandum citing the stipulation for judgment and subsequent activities between the parties as grounds for denying the defendants’ motion. Nevertheless, on June 12, 1979, the trial court dismissed the case under Rule 1.420(e).

Rule 1.420(e), as amended effective January 1, 1977, states:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.

Counsel for the parties indicate that the trial court’s dismissal was based upon its perception that Rule 1.420(e), as construed by this court in Sainer Constructors, Inc. v. Pasco County School Board, 349 So.2d 1212 (Fla. 2d DCA 1977), precluded American Eastern from establishing good cause by nonrecord activity. It follows that the court did not consider the facts as stated in American Eastern’s affidavits as basis to establish good cause.

In Sainer we stated that Rule 1.420(e), as amended, requires that activity must appear “on the face of the record” to save a cause from dismissal. Nevertheless, the thrust of our ruling was that the amendment operated prospectively only. Thus, we held that nonrecord activity could constitute good cause where it occurred prior to the effective date of the amendment. In dicta, however, we added, “Non-record activity as defined in the decisional law construing the former rule can no longer be good cause to avoid dismissal for lack of prosecution.” 349 So.2d at 1214.

The Fourth District Court of Appeal chose not to follow this statement in F. M. C. Corp. v. Chatman, 368 So.2d 1307 (Fla. 4th DCA 1979). There the court said that “to do so would render the excerpt from the rule ‘. . . unless a party shows good cause . . . .’ mere surplusage.” Id. at 1308. We agree with our sister court and now recede from our dicta in Sainer.

Nevertheless, the amendment to Rule 1.420(e) must not be disregarded. Its purpose was to eliminate most nonrecord activity of the type recognized prior to the amendment as a basis to establish good cause to avoid a dismissal for lack of prosecution. Consequently, the standard in determining whether particular nonrecord activity constitutes good cause must be set high, and a party must now show a compelling reason to avoid dismissal where there has been no record activity. For example, the party might show estoppel, as in the present case, or a calamity preventing record activity.

We now turn to the affidavits filed by American Eastern in its attempt to avoid dismissal by a showing of good cause. According to these affidavits the defendants did not make payment in full by August 1, 1976, as they agreed to under the stipulation. There were a series of contacts between counsel for the parties with defendants requesting American Eastern to defer taking judgment to give them time to raise the funds. Then on November 24, 1976, when the defendants still had not paid, American Eastern moved for entry of judgment on the basis of the stipulation. Once again, it postponed action at the defendants’ request to give them additional time to resolve their financial problems. During 1977 the defendants paid a total of $160,000 on the stipulated obligation. In February 1978 American Eastern informed them that if the balance remained unpaid on May 5 it would insist on entry of judgment. Again, the defendants secured a delay, their counsel advising American Eastern that a real estate transaction scheduled to close on June 30,1978, would enable them to pay the balance. The transaction took place and the defendants paid American Eastern the principal and interest in full. At this point counsel for the defendants informed American Eastern’s counsel that the defendants had terminated his services. American Eastern then informed the defendants on-July 6, 1978, that until they paid its legal expenses, their note remained in default. The parties could not agree on fees and costs. On April 9,1979, American Eastern’s attorney contacted one of the defendants to discuss with him the payment of the legal fees. The defendant stated that he would have to discuss the matter with his attorney. Through a subsequent call American Eastern’s attorney was referred to new counsel for the defendants who informed him that on April 10 he had filed a motion on behalf of the defendants to dismiss American Eastern’s case. From the facts outlined we conclude that American Eastern made a prima facie showing of good cause.

The purpose of Rule 1.420(e) is to expedite litigation and keep the court dockets as current as possible. To accomplish this the rule imposes the sanction of dismissal, as did its predecessor statute, against litigants who allow cases to stagnate. Sudduth Realty Co. v. Wright, 55 So.2d 189 (Fla.1951). We think it significant that here American Eastern apparently had prosecuted its case to the point where a judgment could be entered with formal entry withheld only at the request of the defendants. Consequently, American Eastern’s attempts complied with the purpose of the rule.

We recognize that the facts outlined were presented in affidavit form and that many of the statements in the affidavits were hearsay. As noted, however, the defendants’ position has been that the facts presented were immaterial since the trial court could not find good cause on the basis of nonrecord activity. Therefore, on remand, if the defendants controvert American Eastern’s version of the facts, the trial judge may conduct an evidentiary hearing to determine whether American Eastern has shown good cause.

We reverse and remand for further proceedings consistent with this opinion.

GRIMES, C. J., and DANAHY, J., concur.

      . But see, H. Trawick, Florida Practice and Procedure § 21-7 (1977).

      . Thus, some examples of nonrecord activity formerly accepted as good cause which will no longer suffice to avoid dismissal for want of prosecution are: defense counsel’s mailing to plaintiffs counsel of photographic copies of exhibits, Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla. 1972); the furnishing of a medical report by plaintiffs in accordance with defendants’ specific directions, Eddings v. Davidson, 302 So.2d 155 (Fla. 1st DCA 1974); a verbal request by plaintiff’s counsel to produce certain logs and records, Dukes v. Chemicals, Inc., 277 So.2d 298 (Fla. 2d DCA), cert. denied, 283 So.2d 560 (Fla. 1973); and correspondence between the attorneys requesting cancelled checks and check stubs, Whitney v. Whitney, 241 So.2d 436 (Fla. 2d DCA 1970), cert, denied, 245 So.2d 88 (Fla. 1971).

      . Prior to the amendment nonrecord activity had to move the cause of action towards its ultimate resolution in order to constitute good cause. Little v. Sullivan, 173 So.2d 135 (Fla. 1965); Duggar v. Quality Development Corp., 350 So.2d 816 (Fla. 2d DCA 1977). Under the amended rule, however, nonrecord activity which merely moves a case to disposition will no longer suffice.

      . Under the defendants’ reasoning had they moved for dismissal prior to their payment of the principal and interest, they could have avoided a judgment they had previously stipulated to.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Robert JOHNSON, Appellee.
    No. 79-1750.
    District Court of Appeal of Florida, Second District.
    April 23, 1980.

      Jim Smith, Atty. Gen., Tallahassee and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow and Karal B. Rushing, Asst. Public Defender, St. Petersburg, for appellee.
   HOBSON, Acting Chief Judge.

The State of Florida appeals from an order granting Robert Johnson’s motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4).

Johnson was charged by information with battery of a law enforcement officer in violation of Section 784.07, Florida Statutes (1978). He filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) on the ground that there exist no material disputed facts and the undisputed facts do not establish a prima facie case of guilt. The trial court granted the motion to dismiss.

Johnson contends that the lower court properly granted the motion to dismiss, as Officer Brubaker was not “engaged in the lawful performance of his duties,” an essential requirement of Section 784.07, Florida Statutes. He bases this contention on the fact that Brubaker did not have a misdemeanor warrant to arrest him and that none of the provisions of Section 901.15, Florida Statutes, which would make the arrest lawful, were applicable. We do not agree.

In Meeks v. State, 369 So.2d 109 (Fla.lst DCA 1979), the First District Court of Appeal ' addressed this issue. In that case, Meeks contended that the trial court erred in denying his motion to dismiss the information on the grounds that the officers were not in the lawful performance of their duties at the time of offense. The batteries occurred while the officers were executing an allegedly illegal misdemeanor warrant. The appellate court held:

[J]ust as the appellant is not justified in using force to resist an unlawful arrest pursuant to Sections 843.01 and 776.-051(1), Florida Statutes (1977), neither is he justified in committing a battery to resist an unlawful arrest pursuant to Section 784.07, Florida Statutes (1977).

Id. at 110. In Meeks the court cites Lowrey v. State, 356 So.2d 1325 (Fla.4th DCA 1978), which dealt with resisting an unlawful arrest under Section 843.01, Florida Statutes.

In Lowrey, the court stated that Sections 776.051 and 843.01 must be read together. The court held that the use of force in resisting an arrest by a person reasonably known to be a law enforcement officer is unlawful “notwithstanding the technical illegality of the arrest.” Id. at 1326.

We agree with the holdings in Meeks and Lowrey. The trial court committed error in granting Johnson’s motion to dismiss.

Accordingly, we reverse the order of the trial court dismissing the information and remand with directions to reinstate the information and for further proceedings in accordance with this opinion.

REVERSED and REMANDED.

BOARDMAN and RYDER, JJ., concur.

      . Johnson was charged with a violation of § 562.12(1), Fla.Stat., a second-degree misdemeanor.

      . Section 843.01 refers to the officer as being “in the lawful execution of any legal duty.”


text:
    David W. LAWTON, Appellant, v. STATE of Florida, Appellee.
    No. 79-2167.
    District Court of Appeal of Florida, Second District.
    April 23, 1980.
    Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender and Steve Houchin, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

David W. Lawton appeals from the revocation of his probation by the Charlotte County Circuit Court. We strike from the order of revocation of probation the finding that the appellant violated condition (5) of the terms of his probation by trespassing in violation of Section 810.09, Florida Statutes (1977). The revocation order is affirmed in all other respects.

It appears, however, from the record before us that the trial judge did not properly credit the appellant for time served in the county jail as a special condition of the probation order. State v. Jones, 327 So.2d 18 (Fla.1976). Accordingly, we must remand for resentencing, with instructions that the trial judge determine the amount of time the appellant spent in the county jail and properly credit the appellant for that time.

Affirmed in part, reversed in part, and remanded.

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


author: DAUKSCH, Chief Judge.

text:
    Robert Allen SCHWEIGEL, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-2109/T4-227, 78-2245/T4-227A.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

Appellant asks us to decide the question of whether the charge of grand theft includes the charge of filing a false and fraudulent claim as a lesser included offense under the facts of this case. We are prepared to answer that question but cannot because the question was never presented to the trial court for its ruling. For us to rule upon a question not presented to the trial judge would be unfair to that judge and against the ruling in State v. Barber, 301 So.2d 7 (Fla.1974).

AFFIRMED.

SHARP, J., and SHARP, G. K., Associate Judge, concur.

      . Section 812.014, Fla.Stat. (1979).

      . Section 627.7375(l)(a), Fla.Stat. (1977).

      . See Brown v. State, 206 So.2d 377 (Fla. 1968), Category 4.


text:
    George L. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 78-1884/T4-198.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.
    Richard L. Jorandby, Public Defender, Denise Banjavic, Legal Intern and Tatjana Ostapoff, Chief, App. Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

This is an appeal from an order granting probation entered by the Circuit Court for Orange County, Florida. The public defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this Court that no reversible error appears. On May 31, 1979, the Fourth District Court of Appeal, before which this appeal was originally filed, gave the appellánt thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The Court has reviewed the brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted, and the order granting probation is hereby AFFIRMED.

CROSS, ORFINGER and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Milton E. JONES et ux. Appellants, v. RYDER TRUCK RENTAL, INC., Appellee.
    No. 79-470/T4-428.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.

      Gardner Sharpe, Jr. of Billings, Frederick, Wooten & Honeywell, P.A., Orlando, for appellants.
    Paul H. Lee, Jr. of Gurney, Gurney & Handley, P.A., and Ronald L. Harrop, Orlando, for appellee.
   DAUKSCH, Chief Judge.

We reverse the summary judgment in this personal injury case because the record shows material disputed facts left unresolved by the entry of the judgment. Among the material facts in dispute is whether the appellee owed a duty to appellant to prevent water from accumulating at the place where the appellant slipped and injured himself. There is also a dispute as to whether it was the breach of the alleged duty which caused the accident. Ryder says it was under no duty to make repairs to the alleged faulty refrigeration unit but appellant says Ryder was so obligated. Ryder says there is no proof its action or inaction caused the injury; appellant says otherwise.

Since Ryder has failed to carry its burden under Holl v. Talcott, 191 So.2d 40 (Fla. 1966), and the many cases following Holl, we must reverse the summary judgment and remand this negligence case for further proceedings. Squitieri v. Aetna Casualty & Surety Co., 382 So.2d 730, Case No. 00-486/T1-149, (Fla. 5th DCA, March 19, 1980).

REVERSED AND REMANDED.

ORFINGER and UPCHURCH, JJ., concur.


text:
    Donald TOWSON, Appellant, v. STATE of Florida, Appellee.
    No. 79-127/T4-373.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.

      Donald Towson, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a revocation of probation entered by the Circuit Court of Orange County, Florida. The Public Defender has filed an Anders motion and brief, requesting leave to withdraw as counsel for the appellant and representing to this court that no reversible error appears. On January 21, 1980, this court gave the appellant thirty (30) days within which to file a brief on his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted.

Although no reversible error was committed, there is an error in the written order of revocation. The order of revocation recites a finding of violation of condition (H), requiring the appellant to live at liberty without violating any law. At the revocation proceedings, the State withdrew the charge concerning the violation of this condition. Fundamental due process requires that revocation of probation be based only on the violation alleged. Frederick v. State, 339 So.2d 251 (Fla. 4th DCA 1976). The trial court did not find a violation of condition (H), but added that finding in its written order, which written order must conform to the court’s oral announcement. Sampson v. State, 375 So.2d 325 (Fla.2d DCA 1979). The written finding was obviously a typographical error.

The judgment is hereby amended to delete the finding of guilt as to a violation of condition (H) and is otherwise affirmed. The sentence is also affirmed.

AFFIRMED AS MODIFIED.

UPCHURCH and SHARP, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967).


author: BROWNLEE, JACKSON 0., Associate Judge.

text:
    Antonio Michael CARTER, Appellant, v. STATE of Florida, Appellee.
    Nos. 00-352/T1-131, 00-357/T1-132.
    District Court of Appeal of Florida, Fifth District.
    April 23, 1980.

      Michael J. Minerva, Public Defender and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen.„ Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   BROWNLEE, JACKSON 0., Associate Judge.

The state attorney filed an information against a sixteen year old child for robbery and use of a firearm while committing or attempting to commit a felony. Said procedure is authorized by the statute and the defendant is then treated as an adult unless (1) the defendant files a motion requesting that he be transferred to the juvenile division for adjudicatory hearing and (2) establishes that he has not been twice adjudicated delinquent, one of which was a felony. Sec. 39.04(2)(e)4, Fla.Stat. (1979). The burden of proof for the transfer back to juvenile division is clearly on the child.

In order to be committed to the Division of Youth Services, a juvenile must be adjudicated delinquent. The record before us indicates:

In'1967 he was committed to the Division of Youth Services for carrying a concealed firearm and burglary.

Carrying a concealed firearm and burglary are both felonies under Florida law. Since it must be shown by the child that he had not previously been found to have committed two delinquent acts, we can only conclude from the record before us based on commitments for two felonies, that the child was not entitled to be transferred for adjudicatory proceedings as a child.

However, more importantly, the record contains no motion to transfer to the juvenile division for adjudicatory hearing as a child. The record indicates that after a jury trial as an adult, the court then held a hearing to comply with Section 39.111, Florida Statutes (1979), to determine whether the defendant would be sentenced as a child or as an adult. The defense attorney at that point stated:

We would like for him to be treated as a child which the court can do under the statute.

By no stretch of the imagination can this be considered a motion to transfer to juvenile division for adjudicatory hearing pursuant to Section 39.04(2)(e)2, Florida Statutes (1979). However, even if we could stretch the imagination that far, the motion would be untimely.

In the juvenile proceedings an adjudicatory hearing is the same as trial in adult court. There are occasions when a child may determine in which forum he would like to proceed. For example, a child may demand and be treated as an adult and have a jury trial when a juvenile petition has been filed against him. Sec. 39.02(5)(b), Fla.Stat. (1979). The law does not permit a child to proceed through an adjudicatory hearing in juvenile court and then request transfer to adult court for jury trial. By the same token, we have no difficulty in determining that, having completed the adult process of jury trial, it is too late to request transfer for adjudicatory hearing as a child. Whatever right existed to be treated as a child for trial purposes has been waived.

Although Section 39.111, Florida Statutes (1979) requires a disposition hearing to determine whether the defendant will be sentenced as a child or as an adult after having been convicted by jury trial in adult court, this is independent of, and is not to be considered a part of the procedure by which a child may elect if he fits in the proper category to be returned to juvenile court. The court amply complied with the requirements of Section 39.111, Florida Statutes (1979), before determining to impose adult sanctions.

The trial court is

AFFIRMED.

CROSS and SHARP, JJ., concur.


author: SHIVERS, Judge. ERVIN, Judge,

text:
    Melena BENNETT and Harry Bennett, her husband, Appellants, v. William G. MATTISON and Barbara J. Mattison, his wife, d/b/a Casa Marina Apartments, and United States Fidelity and Guaranty Insurance Company, an insurance corporation, Appellees.
    No. OO-147.
    District Court of Appeal of Florida, First District.
    April 24, 1980.

      Rodney S. Margol, of Allen, Margol, Fryefield & McCaulie, Jacksonville, for appellants.
    Charles Cook Howell, Jr., Gainesville, for appellees.
   SHIVERS, Judge.

Appellants brought a slip and fall personal injury action against appellees. Following the presentation of all evidence, the trial court entered a directed verdict in favor of the movant appellees. This appeal is from the final judgment entered pursuant to the directed verdict. Appellants correctly contend that the case should have been submitted to the jury. Accordingly, we reverse the final judgment and remand the case for a new trial.

Melena Bennett, a tenant and part-time employee of the Casa Marina Apartments, slipped and fell in a hallway at the apartment complex on July 9, 1978. This hallway led to a beach-front patio. Both the hallway and the patio were provided for the common use and benefit of the tenants.

On the day of the fall, Melena was at work in the apartment complex’s office when she received complaints that unauthorized persons were using the patio. Melena left the office, walked through the hallway, and straightened out the problem on the patio. Her mission accomplished, she began her return to the office. While walking down the hallway, she slipped on a wet spot on the tile floor of the hallway and fell. The apartment manager testified that she had received numerous complaints from tenants about the slippery condition of the hallway when it was wet and that she had actually seen people slip in the hallway before Melena’s accident. The apartment manager had advised the apartment owners both orally and in writing that the hallway was slippery when wet. There was evidence that water accumulated in the hallway on a daily basis, but there was no evidence as to how or when the water which contributed to Melena’s fall got on the floor. The person employed by the owners to sweep the hallway floor was out of town on the day of the accident and for the two days preceding the accident. There was additional testimony that there was no procedure for the inspection of the hallway.

The complaint alleged that the appellees had negligently maintained the hallway. The trial court directed verdict in favor of the appellees, primarily on the grounds that there had been no proof as to how or when the water which contributed to Melena’s fall came to be on the hallway floor. This evidence was not essential to appellant’s recovery.

The repeated verbal and written warnings to the owners that the hallway was slippery and dangerous put them on notice of the recurring nature of the problem and created a jury question as to whether the landlords exercised reasonable care to guard against a foreseeable danger. Manassa v. New Hampshire Insurance Company, 332 So.2d 34 (Fla. 1st DCA 1976). Since both the hallway and patio were provided for the common use and benefit of the tenants, appellees were required by Section 83.51(2)(a)3, F.S. (1977) to keep these areas safe and clean. The violation of this statutory duty would be evidence of negligence. See de Jesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973). Cf. 2 Restatement of Torts 2d, § 288B.

Appellees argue that Melena’s recovery is barred because of her superior knowledge of the slippery condition of the hallway. We reject this argument for two reasons. First, whether Melena had superi- or knowledge is a question for the jury. Second, Melena’s knowledge, if any, would present an issue of comparative negligence and would not bar her recovery.

Appellees cannot be charged with either actual or constructive knowledge of the existence of the precise water that contributed to Melena’s fall because appellant could not prove how or when the water came to be on the floor. However, appellants were entitled to submit the case to the jury under the theory that (1) appellees failed to take reasonable care to prevent water from coming on the floor; (2) appel-lees failed to take reasonable care by not having an inspection procedure to discover water on the floor and to clean it up; or (3) appellees failed to take reasonable care by not making the floor less slippery when water came to be on it.

The direction of a verdict should be cautiously given and all inferences of fact should be construed most strictly in favor of the nonmovant. Thundereal Corp. v. Sterling, 368 So.2d 923 (Fla. 1st DCA 1979).

Reversed and remanded for new trial.

SHAW, J., concurs.

ERVIN, J., specially concurs with opinion.

ERVIN, Judge,

specially concurring.

While I agree without reservation that a jury question was raised as to whether Mrs. Bennett’s injuries were caused by the negligence of the landlord, my concurrence is based primarily upon Section 83.51(2)(a), placing the burden upon a landlord to make reasonable provisions for the clean and safe condition of common areas. In my judgment the statute, to that limited extent, removes the common law rule absolving the landlord from any duty to his tenants for injuries caused to them by defects on the leased premises, unless his knowledge of the defect is superior to that of the tenant. See Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946); Wingard v. McDonald, 348 So.2d 573 (Fla. 1st DCA 1977), and Bail v. Ates, 369 So.2d 1023 (Fla. 1st DCA 1979), applying the rule similarly to business invitees.

Absent a statute, I think it questionable whether the rule of caveat emptor or caveat lessee is still applicable since the adoption of comparative negligence in Florida, announced in Hoffman v. Jones, 280 So.2d 431 (Fla,1973), and the rule in Blackburn v. Dorta, 348 So.2d 287 (Fla.1977), holding that the affirmative defense of implied assumption of risk has merged into the defense of comparative negligence. At least two decisions in Florida have permitted actions by tenants against landlords on comparative negligence principles. See Alexander v. Fiftieth Street Heights Co., 334 So.2d 161 (Fla.3d DCA 1976) and Rutecki v. Sorkin, 350 So.2d 486 (Fla.3d DCA 1977). For a more exhaustive study of the problem, see Mansur v. Eubanks, 368 So.2d 645, 647 (Fla. 1st DCA 1978) (Ervin, J., concurring).

By analogy, in products liability cases, it is no defense to a strict liability action that the consumer may have been contributorily negligent by failing to discover a defect in the product or by failing to guard against the possibility of the existence of a defect. West v. Caterpillar Tractor Company, 336 So .2d 80, 89-90 (Fla.1976).

This is a murky area of the law and hopefully one which will soon be resolved by the Florida Supreme Court.


text:
    MILLWRIGHTS, INC. and Aetna Casualty & Surety Co., Appellants, v. Dennis CAPPS, Appellee.
    No. UU-155.
    District Court of Appeal of Florida, First District.
    April 24, 1980.
    C. Thomas Ferrara of Pitts, Eubanks & Ross, Orlando, for appellants.
    Irvin A. Meyers, Orlando, for appellee.
   PER CURIAM.

The parties having stipulated that the issue raised in this appeal has been decided by a recent ruling of this Court, the cause is reversed and remanded for reconsideration in light of this Court’s opinion in East Coast Tire Company v. Denmark, 381 So.2d 336 (1980).

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


author: WENTWORTH,. Judge.

text:
    GOVERNMENT EMPLOYEES INS. CO., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee.
    No. PP-55.
    District Court of Appeal of Florida, First District.
    April 25, 1980.

      Robert P. Gaines, of Beggs & Lane, Pensacola, for appellant.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lee.
   WENTWORTH,. Judge.

Government Employees Insurance Co. (GEICO) appeals an order granting summary judgment in favor of State Farm Mutual Insurance Co. (State Farm). GEICO’s insured was involved in an automobile accident with State Farm’s insured, and a dispute arose as to the amount of coverage under the GEICO policy.

In 1976, David Cooley and GEICO entered into an insurance agreement which contained a $25,000 per person/$50,000 per occurrence liability limit. The policy also contained an “automatic insurance” clause providing coverage for subsequently acquired vehicles if:

insured notifies the company within 30 days after the date of such acquisition of his election to make this and no other policy issued by the company applicable to such automobile. .

Mr. Cooley acquired another automobile and by a letter posted June 8,1976, notified GEICO that “I only want the amount of coverage on it that the law of Florida requires of me.” Florida law at the time required coverage of $15,000 per person/$30,000 per occurrence.

After the above letter had been mailed but before it was received by GEICO, Mr. Cooley, while driving his new auto, was involved in a collision with State Farm’s insured. Mr. Cooley’s letter was thereafter received by GEICO, and coverage on the new auto was endorsed with a $15,000/$30,-000 limit, effective as of June 8. It was standard company policy to give such a request retroactive effect, and GEICO was as yet unaware of Mr. Cooley’s recent accident.

The trial judge, in granting summary judgment in State Farm’s favor, ruled that the $25,000/$50,000 liability limit remained in effect at the time of Mr. Cooley’s accident. However, an insured’s request for a change in policy terms may be processed retroactively, and if an accident occurs after the effective date but prior to the processing date, the policy applies as changed. See McCall v., Garland, 371 So.2d 1080 (Fla. 4th DCA 1979). In the present case the June 8 letter had the effect of requesting less coverage on the new auto, and negated the “automatic insurance” clause. Such a policy change may apply retroactively, as of the date of the request, even though it is processed at a later date; the trial judge erred in ruling to the contrary.

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

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


text:
    The FIRESTONE TIRE AND RUBBER COMPANY, Appellant, v. THOMPSON AIRCRAFT TIRE CORPORATION et al., Appellees.
    No. 78-2386.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Greene & Cooper and Robyn Greene, Preddy, Kutner & Hardy, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before HUBBART, J., and PEARSON, TILLMAN (Ret.), and CHAPPELL, BILL G., Associate Judges.
   PER CURIAM.

The final summary judgment under review is affirmed upon a holding that the entry of said judgment, although contrary to our mandate in Firestone Tire and Rubber Co. v. Thompson Aircraft Tire Corp., 353 So.2d 137 (Fla.3d DCA 1977), is compelled by the Florida Supreme Court’s decision in Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), which was rendered subsequent to, and supercedes our prior Firestone decision in this cause.


author: HUBBART, Judge.

text:
    Ildefonso MARTINEZ and Nancy Martinez, Appellants, v. CLARK EQUIPMENT COMPANY and W. E. Johnson Equipment Company, Appellees.
    No. 79-956.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.

      Richard E. Doherty, Miami Beach, for appellants.
    Highsmith & Strauss and Philip Glatzer, Pyszka, Kessler & Adams and William M. Douberley, Miami, for appellees.
    Before HUBBART and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   HUBBART, Judge.

This is an action for strict liability in tort and negligent product design brought against the manufacturer of a forklift, and for negligent repair of the forklift brought against the company which serviced the forklift. The trial court directed a verdict for the manufacturer on the strict liability count and sent the other counts to the jury against both defendants. The jury returned a verdict in favor of the defendants on all counts and a judgment for the defendants was entered thereon. The plaintiffs appeal.

I

The central question involved in this appeal is whether on this record a directed verdict for the defendant manufacturer on the strict liability count was proper on the ground that (a) the forklift in question had substantially changed between the time it left the manufacturer’s control and the time the plaintiff was injured, (b) the plaintiff was guilty of contributory negligence in the use of the forklift which led to his injuries in the subject accident, or (c) the plaintiff’s negligence was the sole proximate cause of his injuries. For the reasons stated below, we conclude that the directed verdict for the manufacturer was improperly entered on the strict liability count based on this record. Accordingly, we reverse the judgment entered for the manufacturer and remand for a new trial on the strict liability count.

A

The facts pertaining to the above issue are as follows. On March 2,1976, the plaintiff Ildefonso Martinez was employed as a warehouse worker for the Dade Division of American Hospital Supply Corporation in Dade County, Florida. Part of his employment duties included operating a forklift in the warehouse of his employer. This forklift was manufactured by the defendant Clark Equipment Company and was serviced by the defendant W.E. Johnson Equipment Company. On the day in question, the plaintiff was operating the subject forklift, driving it in reverse, when the brakes failed and slammed the forklift up against the wall. The plaintiff’s foot was crushed between the forklift and the wall causing certain injuries.

The plaintiff and his wife Nancy Martinez brought suit against the manufacturer for strict liability in tort and negligent design of the forklift and against the servicing company for negligent repair of the forklift. At trial, the plaintiff introduced expert and lay testimony tending to establish that the forklift contained a defective condition which was inherently dangerous to the user in that the forklift did not have a rear bumper or other similar safety device to protect the driver of the forklift from injuries to his feet in the event of a collision involving the rear of the forklift, that the plaintiff would not have been injured in this accident had such a rear bumper or other such safety device been on the forklift, that the defendant manufacturer is engaged in the business of selling forklifts and did in fact sell the subject forklift to the plaintiff’s employer, and that the forklift reached the plaintiff at the time the accident occurred without any substantial change relating to the rear configuration of the forklift.

The defendant manufacturer introduced evidence at trial tending to establish that the plaintiff was aware of the dangerous condition of the forklift, that a co-employee had suffered a prior similar injury while operating the forklift and this injury was known to the plaintiff, and that the plaintiff knew that it was dangerous to allow his foot to protrude over the side of the forklift when operating it as there was no protective bumper to shield his foot from contact with other objects. The plaintiff countered with evidence tending to show that the most comfortable and, therefore, the most reasonable way to operate the forklift was to allow the foot to slightly protrude from the rear of the forklift as the plaintiff did at the time of the subject accident.

The defendant manufacturer also introduced evidence that subsequent to the sale of the forklift in 1970 to the plaintiff’s employer, the drive wheel and hydraulic system of the forklift had been repaired. No evidence was developed, however, which showed any alteration or change in the rear configuration of the forklift.

At the conclusion of all the evidence, the trial court directed a verdict for the defendant manufacturer on the strict liability count and sent the count of negligent design against the manufacturer to the jury. Also the trial court sent the count of negligent repair against the defendant W.E. Johnson Equipment Company to the jury. The jury found for both defendants on all counts and a final judgment was entered for the defendants based on the verdict. The plaintiffs appeal.

B

It is clear that the doctrine of strict liability in tort as stated by Restatement (Second) of Torts § 402A (1965), has been adopted as the law of this state. West v. Caterpillar Tractor Co., 336 So.2d 80, 87 (Fla.1976). Section 402A of the Restatement (Second) of Torts (1965), accordingly, represents the controlling law in Florida as to strict liability in tort and states as follows:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and “(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although
“(a) the seller has exercised all possible care in the preparation and sale of his product, and
“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

In the instant case, the plaintiff adduced, in our view, sufficient evidence at trial to establish each of the above elements of strict liability in tort against the defendant manufacturer. The defendant manufacturer, a seller engaged in the business of selling forklifts, sold the subject forklift to the plaintiff’s employer, which product had a defective condition unreasonably dangerous to the user in that it lacked a rear bumper or similar safety device to protect the driver’s feet against impact with other objects. The lack of such a bumper was in part responsible for the subject injuries as such injuries would not have been sustained had such a bumper or similar safety device been originally installed.

1

We have no difficulty in rejecting the defendant manufacturer’s contention that the forklift was substantially changed between the time it left the manufacturer’s control and the time of the subject accident so as to negate any liability for the alleged defect in the forklift under Section 402A. It is true that changes were made to the forklift in the form of repairs to the drive wheel and hydraulic system, but these were not “substantial” changes within the meaning of § 402A(l)(b) as they in no way affected the claimed defective condition in the forklift. The defect was the lack of a rear bumper or other similar safety device and the above changes in no way altered the rear configuration of the forklift. That defective condition existed when it left the control of the defendant manufacturer and reached the user plaintiff at the time of the subject accident in substantially the same condition.

2

We also have no difficulty in rejecting the defendant manufacturer’s contention that the plaintiff’s alleged contributory negligence barred any recovery for the plaintiff as a matter of law under § 402A. Although contributory negligence by the user of a product in the sense of unreasonable use of the product after discovery of a defect and dang’er therein is a comparative negligence defense to strict liability in tort, it is not an absolute bar to such an action so as to require the entry of a directed verdict against the plaintiff. The Florida Supreme Court has unmistakably so held in West v. Caterpillar Tractor Co., 336 So.2d 80, 90 (Fla.1976), as follows:

“We recognize that contributory negligence of the user or consumer or by-stander in the sense of a failure to discover a defect, or to guard against the possibility of its existence, is not a defense. Contributory negligence of the consumer or user by unreasonable use of a product after discovery of the defect and the danger is a valid defense. Prior to the adoption of the comparative negligence doctrine, a plaintiff’s conduct as the sole proximate cause of his injuries would constitute a total defense. See Coleman v. American Universal of Florida, Inc., 264 So.2d 451 (Fla.App. 1st 1972), quoting from 2 Frumer and Friedman Products Liability § 16.01(3), at 3-20 to 3-31. The defendant manufacturer may assert that the plaintiff was negligent in some specified manner other than failing to discover or guard against a defect, such as assuming the risk, or misusing the product, and that such negligence was a substantial proximate cause of the plaintiff’s injuries or damages. See Annot., 13 A.L.R.3d 1057, 1100-1101. The -fact that plaintiff acts or fails to act as a reasonable prudent person, and such conduct proximately contributes to his injury, constitutes a valid defense. In other words, lack of ordinary due care could constitute a defense to strict tort liability.
“We now have comparative negligence, so the defense of contributory negligence is available in determining the apportionment of the negligence by the manufacturer of the alleged defective product and the negligent use made thereof by the consumer. The ordinary rules of causation and the defenses applicable to negligence are available under our adoption of the Restatement rule. If this were not so, this Court would, in effect, abolish the adoption of comparative negligence. See Powers v. Hunt-Wesson Foods, Inc., 64 Wis.2d 532, 219 N.W.2d 393 (1974).”

In the instant case, the evidence at trial was conflicting as to whether the plaintiff unreasonably used the forklift after admittedly discovering the defective condition and danger therein. The defendant manufacturer insists that the plaintiff should have driven the forklift without his foot protruding from the rear of the vehicle; and the plaintiff contends that this was the most comfortable and, therefore, the most reasonable way to operate this forklift. Even assuming that the plaintiff was negligent in the operation of the forklift, such negligence would only be a comparative negligence defense which could reduce, but not bar, the plaintiff’s recovery on the strict liability count.

The Supreme Court of Florida has reached a similar result in the recent case of Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979), when it rejected the patent danger doctrine as an absolute bar, as a matter of law, to recovery for strict liability in tort. The Court held that the plaintiff’s contributory negligence, if • any, constituted a comparative negligence defense to the action which might reduce, but could not bar the plaintiff from recovery as a matter of law. Our result in the instant case is in full accord with this holding.-

3

We finally reject the defendant manufacturer’s contention that the defective condition in the forklift was not a proximate cause of the plaintiff’s injuries and that the sole proximate cause for such injuries was the plaintiff’s claimed negligence. Although this is a valid defense to the instant action, Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla. 2d DCA 1977), it clearly does not call for a directed verdict for the defendant manufacturer on this record. There was evidence at trial that the plaintiff would not have been injured but for the lack of a rear bumper or similar safety device on the forklift. Such evidence together with other evidence in the cause created a jury question on the proximate cause issue.

For the reasons stated above, it is our view that the trial court committed reversible error in entering a directed verdict for the defendant manufacturer on the strict liability count. The final judgment as to that count must be reversed and the cause remanded to the trial court for a new trial thereon.

II

There remains a secondary issue presented by this appeal which relates to the trial court’s refusal to allow the plaintiffs to amend their complaint to include a count for breach of implied warranty against the defendant Clark Equipment Company and the defendant W.E. Johnson Equipment Company. The motion to amend was made at the beginning of the trial some 19 months after this action had originally commenced. The trial court denied the motion. We conclude that the motion came too late and that the trial court was well within its discretion in not allowing this amendment at this stage of the proceedings. Ruden v. Medalie, 294 So.2d 403 (Fla. 3d DCA 1974); Brown v. Montgomery Ward & Co., 252 So.2d 817 (Fla. 1st DCA 1971); Dunn v. Campbell, 166 So.2d 217 (Fla. 2d DCA 1964).

III

The final judgment as to the defendant W.E. Johnson Equipment Company is affirmed. The final judgment as to the defendant Clark Equipment Company is affirmed as to the negligent design count. The final judgment as to the defendant Clark Equipment Company is reversed as to the strict liability in tort count and the cause is remanded to the trial court with directions to order a new trial on that count only.

Affirmed in part; reversed in part.


author: PEARSON, DANIEL, Judge.

text:
    Irwin SLITKIN, Appellant, v. AVIS RENT A CAR SYSTEM, INC., Appellee.
    No. 79-1904.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Elliot L. Miller, Miami, for appellant.
    Robert L. Dube, Richard M. Gale, Miami, for appellee.
    Before SCHWARTZ and PEARSON, DANIEL, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PEARSON, DANIEL, Judge.

An automobile admittedly owned by Avis Rent A Car System, Inc. (Avis) crashed into Mr. Slitkin’s house and his car parked in the driveway. The offending vehicle remained, but the unidentified driver chose not to and fled.

Slitkin sued Avis for damages alleging that the Avis automobile was operated by its authorized agent and with its consent. Avis denied this.

At trial Slitkin proved only the occurrence of the accident and the damage which ensued: No proof was submitted to show that the unknown driver was operating the Avis vehicle as its agent or with its consent. The trial court directed a verdict in favor of Avis.

While the owner of an automobile is liable for the negligent operation of the automobile by a person driving it with the owner’s knowledge and consent, the burden of proving such knowledge and consent is upon the plaintiff. Pearson v. St. Paul Fire & Marine Insurance Co., 187 So.2d 343 (Fla. 1st DCA 1966). Slitkin failed to satisfy this burden.

Accordingly, the judgment of the trial court is affirmed.

      . The plaintiff neither alleged nor proved that Avis’ responsibility stemmed from circumstances such as leaving the vehicle unattended with the key to the ignition in the vehicle. See, e. g., Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla. 1978).

      . Plaintiff’s argument that the burden is upon the defendant to establish that the vehicle was being operated without its consent comes thirteen years too late. Former Section 51.12, Florida Statutes, which made non-consent an affirmative defense, was repealed by Chapter 67-254, § 49, Laws of Florida.


text:
    Fred MURRAY, Petitioner, v. METROPOLITAN DADE COUNTY, Respondent.
    No. 79-1926.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Kaplan, Sicking, Hessen, Sugarman, Ro-senthal & DeCastro and Robert A. Sugar-man, Miami, for petitioner.
    Robert A. Ginsburg, County Atty., and John H. Moynahan, Jr., Asst. County Atty., for respondent.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   HENDRY, Judge.

Petitioner, Murray, seeks issuance of a writ of certiorari to review the order of the circuit court which granted a motion to dismiss filed by the county. We grant the relief sought and direct that the order be quashed.

Petitioner is a former employee of Metropolitan Dade County who was dismissed as a CETA park attendant with the Homestead Bay Front Park for alleged violations of the Metropolitan Dade County Personnel Rules, Chapter VIII, for “offensive conduct toward his fellow employees” and “belligerence and antagonism toward superiors and fellow employees.” The findings of fact recited by the hearing officer were explicit and detailed; however, the hearing examiner concluded that the said behavior was not so alien to the type of work and conduct of personnel in the field as to warrant termination, and recommended that Murray be reinstated to his job and have a short period of suspension together with a reprimand. The county manager thereafter adopted the findings of fact but, contrary to the hearing officer’s recommendation, terminated the employment of Murray. Thereafter notice of appeal was filed from the termination order. After the cause proceeded somewhat further, the county filed a motion to dismiss, and subsequent to much procedural maneuvering by both parties, the motion was granted. The apparent basis for the order is that Murray served his notice of appeal upon the county manager when he was actually required to serve such notice upon the personnel director for the county. We cannot agree with this reasoning. A review of the record reveals that petitioner did, in fact, comply with the Rules of Appellate Procedure — that is, a notice of administrative appeal was filed with the office of the county manager within thirty (30) days of the rendition of the county manager’s order, as well as a notice of appeal with the circuit court. See Fla.R. App.P. 9.020 (1977 Revision). The county contends that its personnel director is the “clerk” of the county manager for the purposes of appeal and that because the petitioner did not file a copy of the notice with the personnel director, the circuit court was without jurisdiction to entertain the cause.

Unquestionably, the personnel director does not fall within the definition of “clerk” as defined in Rule 9.020(b). See Section 34.031, Florida Statutes (1977) [Clerk of circuit/county court] and Chapter 28, Florida Statutes (1977) [Clerks of the circuit courts, rights and duties, etc.] and compare with Sections 2-27 and 2-28 of the Code of Metropolitan Dade County. The petitioner clearly complied with the requirements for appeal of the county manager’s decision.

The order under review is hereby quashed.


text:
    ITALTELAI S. A. S. DI PIZZA SILVANO & COMPANY and Allianz Versicherungs, A. V., Appellants, v. John WOOTEN, Appellee.
    No. 79-2319.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellants.
    Herskowitz & Grossman and Jack L. Hers-kowitz, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This is an appeal from a non-final order entered by the Circuit Court of Dade County, denying appellants’ motion to dismiss for lack of jurisdiction over the person. We find error and reverse.

Appellee’s having failed to meet its burden of proving facts sufficient to establish in personam jurisdiction over appellant, a foreign corporation, the trial court- erred in denying the appellee’s motion to dismiss. See Harlo Products Corp. v. J. I. Case Company, 360 So.2d 1328 (Fla. 1st DCA 1978) and Hyco Manufacturing Company v. Rotex International Corporation, 355 So.2d 471 (Fla. 3d DCA 1978).

Reversed.


text:
    John PANZAVECCHIA, Appellant, v. The STATE of Florida, Appellee.
    No. 80-729.
    District Court of Appeal of Florida, Third District.
    April 29, 1980.
    John Panzavecchia, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: MILLS, Chief Judge.

text:
    James Doyle ROWELL, Appellant, v. STATE of Florida, Appellee.
    No. MM-367.
    District Court of Appeal of Florida, First District.
    April 30, 1980.
    A1 Millar, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

Appellant challenges his convictions of possession of more than five grams of cannabis, possession of cannabis with intent to sell, and possession of phencyclidine on the ground that the trial court erred in denying his motion to disclose the identity of a confidential informant. We affirm.

The confidential informant participated in a controlled buy of cannabis which formed the basis of a search warrant. The allegations of the search warrant were that cannabis was possessed in a dwelling occupied by several white males, one of whom was known as “Jimmy.”

The evidence showed that twelve people entered or left the dwelling within the hour prior to the execution of the warrant and thirteen came to the dwelling during the search. At the time the officers went to the dwelling to serve and execute the warrant, however, appellant was there alone and told one officer that he lived there alone. The search revealed phencyclidine (PCP) in the door of the refrigerator, several baggies of marijuana in a drawer near the refrigerator, one pound of marijuana in a cooler sitting on the kitchen counter, and a set of scales. One of the officers was qualified as an expert and testified that the scales were similar to the kind of scales used to weigh such contraband when preparing individualized packages. Appellant denied that he was the person who sold the marijuana to the confidential informant and he denied knowledge of the presence of the PCP, the marijuana, or the scales in the residence. There was no evidence that appellant was the person who made the sale and he was not charged with sale of contraband.

Appellant urges in this appeal that it was essential to his defense that he know who the confidential informant was who made the purchase of drugs so that he could establish that he was not the person who sold the marijuana to the informant.

In Rovario v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court held that the privilege of nondisclosure of an informant’s identity must give way where it is “. . . relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause . . . .” The decision as to when disclosure must be ordered requires “. . . balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. .” based on the particular circumstances of each case. Rovario, supra.

The basic factors to be considered by the trial court in reviewing when the identity of the confidential informant should be revealed include, but are not limited to, whether the prosecutor must refer to the informer in the presentation of the case, whether the informer was an active participant in the offense charged or whether he simply supplies a lead, whether the accused admits or does not deny guilt, and whether there is independent evidence of the accused’s guilt. Treverrow v. State, 194 So.2d 250 (Fla.1967). The key to the revelation of the name, however, is really whether the revelation of the name is “material” to the defendant’s case. The application of the test of materiality was considered by this Court in McCants v. State, 363 So.2d 362 (Fla.App.1978). There the Court evaluated materiality by looking at the evidence which was adduced at trial to see if the evidence established guilt beyond a reasonable doubt and whether the undisclosed evidence would have created a reasonable doubt that did not otherwise exist.

In the case at hand, the State did not refer to the informer in the presentation of its case; the informer was not an active participant in the crime charged; and, though the accused did deny his guilt, there was independent evidence of his guilt. Not only do we find that the undisclosed evidence would not have created a reasonable doubt, we think it is noteworthy that appellant does not challenge the sufficiency of the evidence in this appeal.

We agree with the trial judge that the facts of Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965), upon which appellant relies, are materially distinguishable. In Spataro a warrant was issued based on an informant’s having bought drugs from a woman at a residence and drugs were found in a room jointly occupied by two women at that residence. The sole evidence establishing the defendant’s possession of contraband and knowledge of its presence was the testimony of her roommate that the contraband was not hers and she was unaware of its presence. Under those circumstances, the Court ruled that the informant was a material witness since his testimony — if he were to identify the roommate as the person who made the earlier sale — would have affected the roommate’s credibility and shown the possession to have been the roommate’s rather than the defendant’s since joint possession was not asserted.

In the instant case, the evidence was that the drugs were bought from a “Jimmy” and that there were several people who stayed at the dwelling from time to time and who came and went freely, three of whom were named Jim, James, or Jimmy. Under these circumstances, evidence which would simply have enhanced appellant’s credibility was not material. The theory urged by appellant concerning the importance of knowing the identity of the confidential informant rests on the speculation that if he knew who the informant was, the informant would have told the jury who the “buy” was from, the “buy” would not have been from appellant, and the jury hearing that would then disregard the other evidence of possession which was presented. We find that such speculation is insufficient to require the disclosure of the confidential informant.

AFFIRMED.

McCORD and SHIVERS, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    DEAL FARMS, INC., and Charles Allen; Appellants, v. FARM & RANCH SUPPLY, INC., Appellee.
    No. OO-207.
    District Court of Appeal of Florida, First District.
    April 30, 1980.

      Robert B. Staats, Panama City, for appellants.
    Elaine N. Duggar, of Gardner, Shelfer, Mendelson & Duggar, Tallahassee, for ap-pellee.
   LARRY G. SMITH, Judge.

Appellants, Deal Farms, Inc. and Charles Allen, seek reversal of a final judgment dismissing their suit against appellee Farm and Ranch Supply, Inc. In their complaint, appellants sought damages for appellee’s delivery of certain farm equipment allegedly differing from that ordered by appellant, Charles Allen, in behalf of Deal Farms and Allen, as joint venturers. Allen relies for reversal upon the contention the trial court erred in ruling that the existence of a written purchase order, signed by Allen, precluded Allen from testifying that the purchase order was in blank form when he signed it, and that the farm equipment later described in the purchase order was not what he had verbally ordered in his earlier conversation with appellee’s salesman. Deal Farms relies for reversal upon its contention that the court’s entry of summary judgment finding that it was not entitled to maintain the action was erroneous, because the complaint alleged that Deal Farms and Allen were joint venturers, hence both were entitled to maintain the suit against appellee, even though only Allen had any dealings with appellee, and Deal Farms’ relationship with Allen was not disclosed to appellee. We find error as to both appellants, and reverse.

Allen testified in his deposition that he orally ordered some farm equipment from appellee’s salesman, which included two grain drills with double openers, and a planter with a monitoring device. He also testified that he later went to appellee’s place of business, where he delivered a check for the full purchase price, and signed a blank purchase order form. The signed purchase order itself, when produced before the trial court, contained a description of farm equipment, but it called for two grain drills with single openers, and a planter with no monitoring device. On the morning the case was set for trial, the trial court granted appellee’s motion in limine, ruling that under the parol evidence rule, appellants could not present any evidence of prior oral negotiations or conversations relating to the ordering of the farm equipment, and could not present any evidence that the farm equipment ordered differed from that shown in the written purchase order. The trial court subsequently granted appellee’s oral motion for summary judgment against Allen. Deal Farms had already been eliminated as a party plaintiff by the trial court’s pre-trial summary judgment, the details of which will be mentioned later.

We find that the trial court erred in applying the parol evidence rule precluding Allen from testifying that the purchase order was merely a blank form, with no writing describing farm equipment, when he signed it. Allen’s testimony on this point is uncontroverted in the record before us. Whether the instrument he signed was, or was not, a blank form is therefore an issue of fact to be resolved at the trial. Appellee argues in support of the trial judge’s ruling, that parol evidence may not be considered to alter a writing which is clear and unambiguous on its face; that a party cannot defend against a written contract on the ground that he signed it without reading it; and that a prior or contemporaneous oral agreement is inadmissible to vary, contradict, or add to a written contract intelligible on its face. Although we agree with these well-settled principles, they are not pertinent to the issue here which is — what was signed by Allen: A blank purchase order, or a fully completed document? The fallacy in appellee’s argument is that it assumes the existence of a fully completed written document. Of course, it is true that the purchase order, as of the time it was presented in court, was a “written purchase order” (as the document is described in appellee’s brief, page 10). The issue, however, is the contents of the document when it was signed by Allen. We know of no authority, and none has been cited by appellee, standing for the proposition that a party may be prevented from testifying, if that is the case, that a purported written contract was nothing but a blank piece of paper when signed by him. Although one may envision circumstances under which a party might be precluded by waiver or estoppel from so testifying, there are no such circumstances presented by the case before us. Here, the issue is whether there was actually a written contract, not whether the contract correctly reflects the agreement of the parties. The parol evidence rule presupposes an action involving an existing valid contract — that is, a contract in force as a binding obligation. If the issue is as to the existence or validity of the alleged contract, the rule, by its very terms, has no application, and extrinsic evidence is admitted to determine that issue, whether such evidence tends to establish the validity or invalidity of the contract in question. 30 Am.Jur.2d, Evidence, § 1016; 13 Fla.Jur., Evidence, § 392; Atwell v. Western Fire Insurance Co., 120 Fla. 694, 163 So. 27 (1935); Bleemer v. Keenan Motors, Inc., 367 So.2d 1036 (Fla. 3rd DCA 1979). In the Atwell case, where blank amounts were left in an otherwise valid covenant to procure and keep insurance, parol evidence was allowed to explain how much insurance was intended to be carried, as well as to explain the circumstances surrounding the making of the agreement. In the Bleemer case, parol evidence was held admissible to show that a corporation, although shown on the contract and title documents as the purchaser, was not the actual purchaser of the automobile. In Richards v. Day, 137 N.Y. 183, 33 N.E. 146 (1893), parol evidence that a bond sued on was executed in blank and was filled up contrary to direction was held admissible under a simple denial of execution and delivery. See also Western National Insurance Co. v. Trent, 69 Nev. 239, 247 P.2d 208 (1952).

We have not overlooked appellee’s contention that the testimony of the manager of FICO Farms, Inc., appears to contradict that of Allen with respect to the type of equipment ordered. But conflicts in the evidence must be resolved at trial, not on motion for summary judgment. Moreover, this evidence goes to the merits of appellants’ claim, not to the issue of whether there was a written contract. The summary judgment against Allen precluded consideration of the merits. We accordingly find error and reverse.

Turning to the summary judgment dismissing Deal Farms as a party plaintiff, we note again the allegations of the complaint that Allen and Deal Farms were joint ven-turers in a farming operation, and that the farm equipment was ordered from appellee in furtherance of the joint venture. Despite these allegations, the trial court granted summary judgment against Deal Farms, basing this ruling upon the affidavit of appellee’s salesman, who stated that there was no dealing with anyone other than Allen, and that he had no knowledge of the interest of Deal Farms in the purchase. We think that the interest of Deal Farms, as alleged, was sufficient to support its standing to appear as a party plaintiff, and it was error for the trial court to rule otherwise.

The relationships of joint venture and partnership are similar and governed by the same rules of law, although distinguishable in certain respects. See 8 Fla. Jur.2d, Business Relationships, § 681, and cases therein cited. Although it may be developed by further pleading and proof that the relationship between the plaintiffs here was not truly that of “joint adventurers”, we conclude that it is not essential to the maintenance of this action that appellee would be required to have knowledge of the interest of Deal Farms in the purchase of the farm equipment. The nature of the relationship between joint adventurers and third parties is stated in 8 Fla.Jur.2d, Business Relationships, § 691, as follows:

A contract of joint adventure is in effect one of mutual agency, each adventurer acting as a principal in his own behalf and as agent for his co-adventurer. Each one of several joint adventurers has the power to bind the others in matters that are strictly within the scope of the joint enterprise. Such power is inherent in the relationship. It follows that a third party who enters into contractual relations with one of several joint adventurers may hold all co-adventurers liable, even though they were unknown to him when the contract was signed, providing the contracting joint adventurer does not exceed the scope of his authority .

We think the rule of joinder applicable to partnerships also applies to joint adventurers, and that actions in behalf of the joint venture may be brought in the names of all of the joint adventurers. Rule 1.210, Florida Rules of Civil Procedure, provides for actions to be prosecuted by the real parties in interest. It has been recognized that partners must be joined as indispensable parties plaintiff, as suggested by the court in Aronovitz v. Stein Properties, 322 So.2d 74 (Fla. 3rd DCA 1975). See also Engel Mortgage Company v. Dowd, 355 So.2d 1210 (Fla. 1st DCA 1977). Under special circumstances it has been held that a partnership may sue in the firm name, as in Pinellas County v. Lake Padgett Pines, 333 So.2d 472 (Fla. 2nd DCA 1976).

Finally, appellee asserts that the summary judgment dismissing the complaint as to Deal Farms was a final, appeal-able order which was not timely appealed within thirty days of its rendition. On the state of the record before us, we conclude otherwise. The final judgment, as to which this appeal is timely, recites that it is based upon an order granting the motion for summary judgment dismissing Deal Farms. The order granting summary judgment is virtually identical to the order in Shupack v. Allstate Ins. Co., 356 So.2d 1298 (Fla. 3rd DCA 1978), which was held to be merely authorization for a summary judgment, not a final judgment, nor an order from which interlocutory appeal would properly lie. See also Kessler v. Gumenick, 358 So.2d 1167 (Fla. 3rd DCA 1978); Rule 9.130, Florida Rules of Appellate Procedure. We therefore conclude that we have jurisdiction of Deal Farms’ appeal.

REVERSED AND REMANDED.

McCORD and SHIVERS, JJ„ concur.


text:
    STOCKTON, WHATLEY, DAVIN AND COMPANY, a Florida Corporation, Appellant, v. Daniel CRAPPS, d/b/a Daniel Crapps Realtor, Appellee.
    No. SS-209.
    District Court of Appeal of Florida, First District.
    April 30, 1980.
    W. Roderick Bowdoin of Darby, Peele, Page & Bowdoin, Lake City, for appellant.
    Andrew J. Decker, III, of Airth, Sellers & Lewis, Live Oak, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

Appellant seeks review of an order denying its motion to dismiss or transfer for improper venue. We find that appellant’s notice of interlocutory appeal was untimely filed. Fla.R.App.P. 9.130(b). Since there is no provision in the Florida Rules of Civil Procedure authorizing a motion for rehearing directed to an interlocutory order, Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla. 1972), appellant’s motion for rehearing directed to the interlocutory order denying its motion to dismiss or transfer for improper venue did not suspend rendition of such order, and thus had no effect on the time for filing a notice of appeal. Fla.R.App.P. 9.020(g); Florida East Coast Railway Company v. Southern Sanitation Service, Inc., 370 So.2d 1200 (Fla. 4th DCA 1979); Business Cards Tomorrow, Inc. v. Advisory Board, Inc., 379 So.2d 473 (Fla. 4th DCA 1980).

Accordingly,- the appeal is hereby DISMISSED.

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


author: BERANEK, Judge.

text:
    Daniel SALTER, Appellant, v. STATE of Florida, Appellee.
    No. 77-484.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1980.
    Rehearing Denied June 11, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove and Max Rud-mann, Asst. Attys. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by the defendant from a conviction and life sentence for armed' robbery. We reverse and remand for a new trial. Defendant was 15 years old when arrested and charged with first degree murder and armed robbery. He was transferred to the adult division and tried before a jury. Defendant was found not guilty of the murder charge but guilty of armed robbery.

On appeal defendant raises two issues. It is initially asserted that the trial court erred in denying a motion to suppress evidence concerning a line-up identification. We conclude that appellant has failed to demonstrate reversible error in this regard since identification testimony was based upon observation independent of the lineup. See Wilson v. State, 265 So.2d 411 (Fla. 4th DCA 1972). Defendant’s second point relates to a restriction of cross-examination of State witnesses regarding defendant’s identification.

The facts are that a bar was robbed by two black males in the presence of approximately 17 witnesses. During the course of the robbery, one of the owners of the bar had a heart attack and subsequently died. At trial the State called four of the eye-witnesses. Each of these witnesses was asked for his or her description of the robbery. These witnesses testified to the general appearance of the two robbers. The witnesses were asked to describe the mechanics of the robbery, how the guns were held, the physical actions of the participants, and other details. The physical description of one of the robbers by three of the witnesses was generally consistent with defendant’s appearance. Out of the four eye-witnesses, three of them did not specifically identify defendant at trial. One State witness did identify the defendant and this witness testified that he had also identified the defendant in pre-trial identification procedures.

On cross-examination of all four of these State witnesses, defendant attempted to inquire of each of them regarding prior live and photo line-ups. The state objected to the cross-examination on the grounds that it exceeded the scope of the direct testimony of these witnesses because they had not specifically identified defendant. This objection was sustained as to three witnesses and defendant proffered testimony showing that these witnesses had not identified the defendant when shown various line-ups and that they had instead identified another person not charged in the crime. The trial court excluded all of this cross-examination from the jury’s consideration.

Curtailment of a defendant’s right to cross-examination of State witnesses is a power to be used sparingly. In Coco v. State, 62 So.2d 892 (Fla.1953), the Florida Supreme Court noted that a fair and full cross-examination of a witness upon “the subjects opened by the direct examination is an absolute right, as distinguished from a privilege.” The Court noted that such cross-examination was based on the constitutional right to confront one’s accusers. This right extends to “all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief.” Coco, supra, at 895. The Court recently reaffirmed the Coco decision in Coxwell v. State, 361 So.2d 148 (Fla.1978), wherein the Court noted that the right to full cross-examination was an “absolute and fundamental right.” Suffice it to say that rulings which limit a defendant’s cross-examination of necessary State witnesses are subject to close appellate scrutiny.

Here the defendant sought to have the jury advised that the same witnesses called by the State in support of its case had been unable to identify the defendant in prior line-ups, or had, in fact, identified some other individual. Three of the witnesses, while not actually identifying defendant at trial gave detailed descriptions which purpose was to bolster the identification by the fourth witness. This testimony had the practical effect of pointing a finger at defendant. The defendant himself took the stand and denied being involved in the robbery so it cannot be said that identity was not an issue. Robinson v. State, 237 So.2d 268 (Fla. 4th DCA 1970), is thus inapplicable.

We conclude that the Court below erred in unduly restricting defendant’s cross-examination of State witnesses regarding pri- or line-up misidentification. The judgment and conviction is thus reversed and remanded for a new trial.

REVERSED AND REMANDED.

ANSTEAD, J., and SIMONS, STUART M., Associate Judge, concur.