author: ALDERMAN, Justice. BOYD, Judge,

text:
    Ernest John DOBBERT, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 61732.
    Supreme Court of Florida.
    May 13, 1982.

      Patrick D. Doherty of Gross & Doherty, Clearwater, for petitioner.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for respondent.
   ALDERMAN, Justice.

Ernest John Dobbert, Jr. seeks leave to file a petition for writ of error coram nobis on the basis that he was convicted of the first-degree murder of his daughter, Kelly Ann Dobbert, and was sentenced to death solely upon the false testimony of his son, Ernest John Dobbert, III, and that the untruthfulness of this testimony was not discovered until February 5, 1982, and could not have been discovered at the time of trial through the use of due diligence. Finding that Dobbert has failed to establish prima facie grounds for the relief requested, we deny his petition.

Dobbert, in April 1974, was convicted of the first-degree murder of his nine-year-old daughter. His conviction and his sentence of death were affirmed by this Court and by the Supreme Court of the United States. Dobbert v. State, 328 So.2d 433 (Fla.1976), aff’d, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Later, finding a Gardner violation, we relinquished jurisdiction to the trial court with directions to vacate the death sentence and to give Dobbert an opportunity to respond to a presentence investigation report which had been furnished to the trial court when he first sentenced Dob-bert to death but which had not been made available to him. The trial court, after a plenary resentencing hearing, again sentenced Dobbert to death. We affirmed, and the Supreme Court of the United States denied certiorari. Dobbert v. State, 375 So.2d 1069 (Fla.1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980). Dobbert was scheduled to be executed on July 22,1981, but the Supreme Court stayed execution pending its disposition of a writ of certiorari in Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, - U.S. -, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). He was again scheduled to be executed on February 2, 1982. The day after Governor Graham signed his death warrant, Dobbert filed a motion to vacate his death sentence which was denied by the trial court. We affirmed the trial court’s denial and denied the stay of execution. Dobbert v. State, 409 So.2d 1053 (Fla.1982). The United States Circuit Court of Appeals,- Eleventh Circuit, however, granted Dobbert’s request for a stay.

Dobbert has now filed a request for leave to file a petition for writ of error coram nobis claiming that his son, Ernest John Dobbert, III (John), the State’s key witness against him, has now come forward and admitted that certain statements he had made at trial concerning the manner in which Kelly died are false. Dobbert alleges that neither he nor his attorneys were aware of his son’s willingness to come forward until February 5, 1982, and that his son was unwilling to reveal the untruthfulness prior to January 31, 1982. In an affidavit and videotaped statement submitted with this petition, John says that, in response to the state attorney’s question during trial as to whether Dobbert did anything to Kelly the night before she died, he answered yes and that his father had kicked her. He now asserts that this answer was false and that the correct answer to this question was no and that he had done nothing to her the night before she died. Rather, he had kicked her weeks before she died. The affidavit further states that, in response to the question of whether Dobbert did anything to Kelly the night she died, he answered during trial that Dobbert had choked her while in fact the correct answer was no. John says that his father did not choke Kelly, that she died accidentally choking on food or vomit, and that his father tried to give Kelly mouth-to-mouth resuscitation.

We directed the State to respond to Dob-bert’s petition by order entered February 17, 1982. The State responds that this alleged new evidence would not have precluded judgment, that there is no allegation that John was coerced by the State in testifying as he did at the trial, that the videotaped statement and affidavit are suspect because the language utilized is not indigenous to the speech pattern of John, and that the statements now asserted to be the truth are not new evidence.

We agree with the State’s last contention that the petition should be denied on the basis that the evidence submitted by petitioner is not new evidence. In Hallman v. State, 371 So.2d 482 (Fla.1979), we summarized the requirements which must be met by a defendant who seeks coram nobis relief. One important prerequisite which must be demonstrated before an appellate court will grant leave to proceed in the trial court is that the facts alleged must not have been known by the court, by the party, or by his counsel at the time of trial. It must also be made clear that defendant or his counsel could not have discovered them through the use of due diligence. See also Smith v. State, 400 So.2d 956 (Fla.1981). We cannot say that the facts alleged in Dobbert’s petition as a basis for relief were unknown at the time of trial. Dobbert’s claim that this different version of Kelly Dobbert’s death now disclosed by John in his affidavit and videotaped statement was not known to him or his defense counsel is refuted by a sworn statement made by John to investigators and officers of the Jacksonville sheriff’s office. That Dobbert, through his counsel, had knowledge of this earlier statement is evidenced by his counsel’s March 5, 1974, deposition of John and his counsel’s questions on cross-examination of John during the trial.

The transcript of the sworn statement made to authorities in the sheriff’s office reveals that in April 1972, two years prior to trial, John made a statement remarkably similar to the one he makes in his present affidavit. In this early statement, John stated that Kelly was not kicked the night before she died, that the last time Dobbert beat her or whipped her was a week before she died at which time Dobbert had hit her on her bottom with a belt, that she had the flu at the time she died, that she choked to death on some food, that she kept throwing up and the food got stuck in her throat, and that his father attempted to revive her by giving her mouth-to-mouth resuscitation. In response to questions from one of the investigating officers, John further responded that he was satisfied that Kelly had the flu and that she died from lack of medical care. Later, in a pre-trial deposition taken in Wisconsin, Dobbert’s counsel referred John to his earlier sworn statement to police officers in Jacksonville.

In view of the fact that prior to and at the time of trial, Dobbert, through his counsel, was fully aware of John’s different version of Kelly’s death now offered as newly discovered evidence, we find that Dobbert has failed to demonstrate facts legally sufficient to warrant the granting of the requested relief.

Accordingly, Dobbert’s request for permission to file a petition for writ of error coram nobis is denied.

It is so ordered.

SUNDBERG, C. J., and ADKINS and McDONALD, JJ., concur.

OVERTON, J., dissents.

BOYD, Judge,

dissents:

“I dissent and would remand for an evi-dentiary hearing because the critical and principal state witness now says he committed perjury at the trial. One reason I dissented in the original opinion was because of deficiencies in the son’s testimony and because his vision was 20/200.”

      . Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Arthur H. LIPSON, Respondent.
    No. 61903.
    Supreme Court of Florida.
    May 13, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Miami, of The Florida Bar, for complainant.
    Donald J. Murray, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Florida Bar Code of Professional Responsibility, Disciplinary Rules 1-102(A)(1), (4), (5), and (6). We approve the Petition, and we hereby reprimand Respondent, Arthur H. Lipson, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $225.00 are hereby taxed against the Respondent.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Joel Lewis WERTHEIM, Respondent.
    No. 61956.
    Supreme Court of Florida.
    May 13, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and Paul A. Gross, Bar Counsel, Miami, of The Florida Bar, for complainant.
    Joel Lewis Wertheim, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to violations of Disciplinary Rules 6-101(A)(3), and 9-102(B)(3) of the Code of Professional Responsibility. We approve the Petition, and we hereby reprimand Respondent, Joel Lewis Wertheim, for these violations. The publication of this order in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $1,384.50 are hereby taxed against the Respondent.

It is so ordered.

BOYD, Acting C. J., and OVERTON, ALDERMAN, McDonald and EHRLICH, JJ., concur.


author: PER CURIAM. DANIEL S. PEARSON, Judge, PER CURIAM.

text:
    William R. WASHINGTON, Jr., Appellant, v. The STATE of Florida, Appellee.
    Nos. 78-706, 79-24.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 1981.
    On Rehearing May 25, 1982.
    Bennett H. Brummer, Public Defender and Louis M. Jepeway, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

These consolidated appeals result from appellant’s non-jury conviction of petit theft. He seeks reversal of his conviction on the grounds that (1) his court appointed counsel was ineffective in that she failed to file a motion to suppress the torque wrenches which were the articles he was charged with unlawfully taking, (2) counsel failed to make a closing argument, and (3) the trial court erred in denying the defendant his right to trial by jury without first insuring that he was aware of his right to trial by jury and that the right was intelligently and voluntarily relinquished.

We have carefully considered appellant’s points on appeal in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. As to appellant’s third point, we feel that notwithstanding the absence of a showing in the record that the rule in Viggiani v. State, 390 So.2d 147 (Fla.3d DCA 1980), was strictly followed, it is clear to us that defendant’s constitutional rights were fully protected. If there were errors, they were not prejudicial. See Durcan v. State, 383 So.2d 248 (Fla. 3d DCA), pet. for rev. den., 389 So.2d 1109 (Fla.1980); Quartz v. State, 258 So.2d 283 (Fla.3d DCA 1972).

Affirmed.

DANIEL S. PEARSON, Judge,

concurring.

The record reflects that the information was stamped “Waived Trial by Jury With Approval of Court and Consent of State,” below which words appeared the signature “Willie R. Washington, Jr.” The record is otherwise silent as to what prompted Washington to sign the waiver. Thus, the present case is indistinguishable from Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980), the impact of which, in my view, cannot be avoided by the majority’s statement that notwithstanding the rule of Vig-giani, “it is clear that the defendant’s constitutional rights were fully protected.” The Viggiani rule itself is that the defendant’s constitutional right to trial by jury is not fully protected by the stamped and signed waiver without more.

However, since I believe Viggiani was wrongly decided, I agree with the majority to affirm.

In my view, Viggiani overlooked the proposition that proceedings are presumed to be conducted with regularity and that the trial court discharged its responsibility according to the law and in good faith. Vaccaro v. State, 152 Fla. 123, 11 So.2d 186 (1943); Wilson v. State, 164 So.2d 43 (Fla.2d DCA 1964); Reese v. Wainwright, 600 F.2d 1085 (5th Cir. 1979).

“... The presumption of regularity is a presumption of law which places a burden of going forward with contrary evidence upon the prisoner. On the other hand, the presumption of waiver available when the record recites waiver is a presumption of fact. The distinction between these explains why the latter is not operative if the record is silent despite the existing presumption of regularity.” Wilson v. State, supra, 164 So.2d at 47 n. 4 (emphasis supplied).

Here the record recites waiver. That recitation, given the presumption of regularity, carries with it that the defendant was in court, there executed the written waiver, and did so knowingly, intelligently, and voluntarily. We do not, in other words, begin with a silent record and presume waiver; instead, we begin with evidence that a jury trial was waived, which is sufficient to show that it was properly waived, if the propriety of the waiver, as in the present case, is uncontradicted, and, moreover, not even challenged.

ON REHEARING

PER CURIAM.

These consolidated appeals arise from appellant’s conviction of petit theft after a non-jury trial. The only point raised by Washington which merits discussion is his claim that the record does not reflect that he effectively waived his right to trial by jury.

When this case was first briefed and argued, the record on appeal showed only that the information was stamped “Waived Trial by Jury With Approval of Court and Consent of State,” below which words appeared the signature “Willie R. Washington, Jr.” Since the record was otherwise silent as to what prompted Washington to sign the waiver, the concern of this court’s first opinion and a concurring opinion was the possible impact of Viggiani v. State, 390 So.2d 147 (Fla. 3d DCA 1980).

It was not until a rehearing en banc was granted that the State decided that it was appropriate to request that the record on appeal be supplemented and thereafter filed a transcript of a court proceeding which showed that Washington in open court, after discussion with and upon advice of counsel, waived his right to trial by jury and placed his signature below the waiver stamp on the information. We accordingly find that the error asserted by Washington is totally without merit.

We conclude by expressing our displeasure with the conduct of counsel on appeal. The transcript of the proceedings at which Washington waived trial by jury was available upon request at all times and could have been obtained and made part of the record with only the slightest effort. Yet Washington’s counsel, for his part, briefed and argued the case as if no such court proceeding had occurred. The Assistant Attorney General, for his part, took the position (at least until it became apparent to him when rehearing en banc was granted that in light of Viggiani, there was a serious question whether affirmance of the conviction should stand) that it was not his obligation to furnish this transcript to the court. Indeed, until the record was supplemented, we were never informed that a hearing had taken place and that a transcript existed. Meanwhile, members of this court devoted considerable judicial labor in writing an opinion, a concurring opinion, considering and voting upon the petition for rehearing en banc, preparing for and hearing a totally unwarranted en banc argument, and, finally, issuing this opinion on rehearing.

Affirmed.

      . Grounds one and two arise from the denial of appellant’s post-conviction motion for relief pursuant to Rule 3.850; ground three is a direct appeal to this court.

      . The waiver was under former Rule 3.260, Florida Rules of Criminal Procedure, which required the express approval of the court.


author: McCORD, Judge. McCORD, Judge.

text:
    Tommy C. PATE, Appellant, v. MADDOX FOUNDRY & MACHINE WORKS and Aetna Insurance Company, Appellees.
    No. XX-481.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1982.
    Rehearing Denied April 15, 1982.
    Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.
    Bruce R. Raster of Pattillo, MacKay & McKeever, Ocala, for appellees.
   McCORD, Judge.

In this worker’s compensation appeal, Pate contends the deputy commissioner erred in computing his average weekly wage and in determining the date on which the carrier should be allowed to claim an offset against social security benefits. We agree and reverse.

Both parties agree that the deputy’s figure of $251.71 for Pate’s average weekly wage was incorrect. The carrier maintains that the error was merely mathematical, and it advances $258.87 as the correct amount. Pate, however, asserts that the deputy improperly excluded vacation benefits and further erred by failing to use an “equivalent employee” to determine the wage.

Neither position is entirely correct. The deputy properly denied Pate’s request to use an equivalent employee’s earnings in determining the average weekly wage because Pate worked more than 90 per cent of his total customary full-time hours of employment. See Sections 440.-14(1), (2), Florida Statutes (1977). The deputy also properly denied the request to add vacation benefits to the average weekly wage because Pate failed to produce evidence that this benefit had vested. See Sunland Training Center v. Thomas, 408 So.2d 685, cert. denied, 389 So.2d 1116 (Fla.1980). However, we cannot accept the carrier’s suggestion for a correct average weekly wage because our calculations yield a different figure. Therefore, we remand for the deputy’s redetermination of the average weekly wage.

We also reverse the portion of the order in which the deputy determined that the carrier was entitled to set off social security benefits to Pate beginning on the date it requested information from the social security administration. Such an offset cannot be applied retroactively. Florida Department of Transportation v. Lindsey, 383 So.2d 956 (Fla. 1st DCA 1980).

Upon remand, the deputy should reconsider the award of an attorney’s fee in light of the increase in Pate’s benefits. Section 440.34.

Accordingly, this cause is remanded for proceedings consistent with this opinion.

SHIVERS, J„ and MASON, ERNEST K, (Retired) Associate Judge, concur.

ON MOTION FOR REHEARING OR CLARIFICATION

McCORD, Judge.

Appellant seeks clarification of that portion of our opinion which states:

The deputy properly denied Pate’s request to use an equivalent employee’s earnings in determining his average weekly wage because Pate worked more than 90 per cent of his customary full-time hours of employment. See Sections 440.14(1), (2), Florida Statutes (1977).

The argument in relation to this on appeal was whether the average weekly wage should be determined by using an “equivalent employee” (appellant’s argument) because appellant had not worked 90 per cent of the total customary full-time hours of employment.

The payroll sheets for appellant on pages 76 through 82 of the record indicate that appellant worked more than 90 per cent of a 40 hour work week during the 13 weeks before the injury. Thus, on remand, the issue of average weekly wage may be decided within the parameters of § 440.14(1) without referring to a “similar employee.” Appellant’s attorney’s fees for his representation of appellant on this appeal is denied.

Appellant’s motion for rehearing is denied and for clarification beyond that contained herein is denied.

SHIVERS, J., and MASON, ERNEST E., (Retired) Associate Judge, concur.


text:
    Ronald Ledell THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. AE-14.
    District Court of Appeal of Florida, First District.
    March 11, 1982.
    Rehearing Denied June 10, 1982.

      Nancy A. Daniels, Asst. Public Defender, and Chuck McMurry, Legal Intern, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., and Launa K. Cartwright, Legal Intern, Tallahassee, for appellee.
   PER CURIAM.

We AFFIRM appellant’s conviction. However, we agree with appellant that when the trial court enhances a sentence pursuant to Section 775.084, Florida Statutes (1979), there must be a finding that, from a preponderance of the evidence, it was necessary for the protection of the public to sentence the appellant to an extended term. We therefore vacate the sentence and remand the cause for appropriate findings and imposition of sentence. See Whaley v. State, 382 So.2d 802 (Fla. 1st DCA 1980).

McCORD, ERVIN and SHAW, JJ., concur.


author: ERVIN, Judge.

text:
    Ray WILSON, Appellant, v. W. Max CLARK, Personal Representative of the estate of Effie Steele, deceased, Appellee.
    No. AG-181.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    Rehearing Denied June 8, 1982.

      Ferrin C. Campbell, Sr., P. A., Crestview, for appellant.
    John P. Townsend of Selby, Chesser, Wingard & Barr, Fort Walton Beach, for appellee.
   ERVIN, Judge.

Application of Rule 1.260(a)(1), Florida Rules of Civil Procedure, to the facts of this case suggests that the case will have to be remanded to the lower court to determine whether this cause should be dismissed because the plaintiff/appellee failed to file a timely motion for the substitution of the party plaintiff after the death of the original plaintiff, or whether the time for filing the motion for substitution should be enlarged due to appellee’s excusable neglect. We otherwise affirm on all of the remaining points presented in this appeal.

A complaint was filed by Effie Steele against appellant Ray Wilson seeking cancellation and rescission of three leases entered into by the parties in 1972 and 1973. Steele’s prayer for relief in count I of her complaint was based on allegations of inadequate consideration for the leases and undue influence and misrepresentation by Wilson in securing Steele’s signature on the leases.

A motion to dismiss count I of the complaint was filed by Wilson charging that the facts constituting undue influence were not stated with particularity and constituted a general allegation of ultimate fact which was insufficient to make out a cause of action. The lower court denied the motion to dismiss finding that the allegations were sufficient to state a cause of action of undue influence.

Count I of the complaint sounded not only in undue influence but also in misrepresentation and inadequate consideration. The appellant did not contest the propriety of the latter two charges in the pleadings.

Without rendering any opinion as to the correctness of the reason for the lower court’s determination that sufficient allegations of undue influence were presented, we find that the denial of the motion to dismiss was proper. A motion to dismiss was an improper vehicle to employ. By failing to challenge the allegations of misrepresentation and inadequate consideration, appellant admitted these allegations as having been well pleaded. Because count I stated a cause of action based on allegations of misrepresentation and inadequate consideration, a motion to dismiss all the allegations of count I was improper. See Bond v. Koscot Interplanetary, Inc., 246 So.2d 631, 633 (Fla. 4th DCA 1971); Beck v. Barnett National Bank of Jacksonville, 117 So.2d 45, 50 (Fla. 1st DCA 1960).

Appellant had two avenues upon which to rectify the improper pleading of undue influence. He could have filed a motion for a more definite statement pursuant to Rule 1.140(e), Florida Rules of Civil Procedure, in an effort to seek a clarification of vague and ambiguous allegations of undue influence. Calhoun v. Epstein, 121 So.2d 828, 830 (Fla. 2d DCA 1960); Beck, supra, at 50. Alternatively, he could have filed a motion to strike the allegations of undue influence. Rule 1.140(f), Fla.R. Civ.P.; Beck, supra, at 50. Appellant filed neither of these motions, and denial of the motion to dismiss was quite proper.

The case was finally tried without a jury, final argument to the lower court having been made on December 30, 1980. On January 22, 1981, plaintiff Effie Steele passed away. Appellant promptly served a suggestion of death, pursuant to Rule 1.260(a)(1), Florida Rules of Civil Procedure, on January 23, 1981. However, the suggestion of death did not appear “upon the record” until January 26, 1981, the date of filing.

Eighty-eight days after the date of filing on April 24, 1981 the lower court entered an order canceling and rescinding the leases. On April 28, 1981, ninety-two days after the suggestion of death was filed, plaintiff Effie Steele’s counsel served a motion by mail to substitute W. Max Clark, administrator of the late plaintiff’s estate, for the decedent as the party plaintiff. On the same day appellant filed a motion to dismiss for failure to move for substitution within the ninety-day period set forth in Rule 1.260(a)(1).

The lower court denied appellant Wilson’s motion to dismiss and entered an order substituting Clark as the proper party plaintiff. The court then denied a timely filed motion for rehearing, and Wilson appealed in a timely manner. We are compelled to remand the case to the lower court for further consistent proceedings.

The appellee has suggested that the final judgment extinguished the cause of action by merging it into the final judgment; therefore, there was no action to dismiss, and the lower court correctly denied the motion to dismiss. Cited in support of this theory is the doctrine of merger. This doctrine stands for the proposition that a debt or cause of action, upon which an adjudication is predicated, merges into the judgment. 32 Fla.Jur.2d, Judgments and Decrees, § 85 (1981). Consequently, the debt or cause of action’s independent existence perishes upon entry of a judgment. The doctrine of merger is set out in the Restatement of the Law, Judgments, Section 47 (1942). However, there can be no merger of an action into a judgment, if the action is equitable in nature. Id. at comment h. Obviously, the doctrine is inapplicable to an action, such as the case at bar, that seeks cancellation and rescission of various leases.

As support for his merger argument, Wilson cites Sessions v. Stevens, 1 Fla. 233 (1847), which involved a judgment against a garnishee on a note, but the ease suggests that it was the note that was extinguished by the entry of a final judgment. By entry of a judgment, “... the note in legal contemplation becomes extinguished, loses its identity and character, and ceases to be the subject of future action.” Sessions, supra at 240.

Sessions and the doctrine of merger seem to rest more on principles of res judicata or estoppel by judgment than on the extin-guishment or termination of an existing action and are, therefore, inapplicable to the case at bar. See 32 Fla.Jur.2d, Judgments and Decrees, § 88 (1981). Because the doctrine of merger is inapplicable, it still remains to be determined at what point a cause of action finally terminates.

The general rule is that an action remains pending in the trial court until after a final judgment and such time as an appeal is taken or time for an appeal expires. If an appeal is taken, the action is still pending until final disposition. Southern Title Research Co. v. King, 186 So.2d 539, 544-545 (Fla. 4th DCA 1966); State, ex rel. Andreu v. Canfield, 40 Fla. 36, 23 So. 591 (1898). Even an order dismissing a complaint and allowing twenty days to file an amended complaint does not terminate a cause of action. Berman Leasing Co. v. C. R. Brumage, 217 So.2d 359 (Fla. 3d DCA 1969).

By virtue of the fact that this opinion is being rendered based on a timely appeal, it is fair to say that the action appellee professes to have become terminated or extinguished by virtue of the lower court’s final judgment is still very much alive. In essence an action continues to have life until there is a final determination on an appeal. 1 Fla.Jur.2d, Actions, § 35 (1977); see also Braddock v. Braddock, 542 P.2d 1060, 1064 (Nev.1975); Olson v. Hickman, 25 Cal.App.3d 920, 102 Cal.Rptr. 248, 249 (1972). Finality of a determination does not of course occur until time expires to file a rehearing petition and disposition thereof if filed, or until a timely filed petition for review in the Florida Supreme Court is acted upon. Therefore, it is apparent that the lower court’s final judgment did not extinguish this action.

Because of the filing of the suggestion of death, the appellee’s counsel should have filed a timely motion for substitution. Canter v. Hyman, 363 So.2d 29, 30 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1368 (Fla.1979); Nationwide Mutual Fire Insurance Co. v. Holmes, 352 So.2d 1233, 1234 (Fla. 4th DCA 1977).

We also reject appellee’s argument that the motion for substitution was timely filed pursuant to Rule 1.090(e), Florida Rules of Civil Procedure, which states in part: “When a party ... is required to do some act ... within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, five days shall be added to the prescribed period.” (e.s.) Appellee argues that had we applied the five-day enlargement period, that he would be entitled to no less than ninety-five days within which to respond, since appellant’s suggestion of death was served on January 23, 1981, and appellee’s motion for substitution was served and filed on April 28, 1981, exactly ninety-five days later.

We consider that the five-day extended period authorized by Rule 1.090(e) is inapplicable to the time provisions of Rule 1.260(a)(1). The latter rule states that the time for taking action begins to run as of the date the suggestion of death appears “upon the record” — not as of the date the suggestion is served. Thus, the time provisions of Rule 1.260(a) are triggered simply by the recording or the filing of the suggestion of death — not by the pleading’s service. If Rule 1.260(a) required a party to take some specified action following simply the date of service of the suggestion — compare the provisions of Rule 1.140(a), requiring a defendant to serve and answer within 20 days after service of the initial pleading— the enlargement provisions of Rule 1.090(e) would unquestionably apply.

We consider that the key words governing a response to a suggestion of death are the words “upon the record.” Compare the words “within 30 days of rendition of the order to be reviewed ... ”, in Florida Rule of Appellate Procedure 9.110(b), which requires the time for filing a notice of appeal within the applicable period irrespective of any additional time for service by mail. Compare also the language of Florida Rule of Civil Procedure 1.530(b), providing: “A motion for a new trial or for rehearing shall be served not later than 10 days after the rendition of verdict in a jury action or the entry of judgment in a non-jury action.” (e.s.) In its construction of the rule, Grabarnick v. Florida Homeowners Association, 395 So.2d 1184, 1185 (Fla. 4th DCA 1981), certified question docketed, no. 60,564 (Fla. May 4, 1981), refused to apply the five-day extension period of Rule 1.090(e) to a motion for rehearing served 11 days after the rendition of final judgment, holding that the time for filing such motion begins to run from the date the judgment is entered, rather than from the date it is served or received.

We are not unaware that Rule 1.260(a)(1) provides that a motion for substitution shall be served on all parties in the manner provided in Rule 1.080. We do not conclude, however, that the reference to Rule 1.080 permits a reasonable inference that the enlargement provisions of Rule 1.090(e) are therefore applicable. We think, given the other language in Rule 1.260(a)(1), pertaining to the recording of the suggestion, that the reference was intended to describe the method by which a motion for substitution is communicated to the other party. Similarly, a motion for new trial or rehearing is also required to be served, but because Rule 1.530(b) provides also that such service shall follow within 10 days after rendition of a verdict or judgment, Grabarnick refused to apply the time provisions of Rule 1.090(e).

The distinction that we have drawn from the rules between a requirement for taking action within a prescribed period after service of a pleading, as opposed to taking action after the filing of a pleading upon the record, is supported also by the interpretations placed upon the counterpart of Rule 1.090(e), Federal Rule of Civil Procedure 6(e), permitting a three-day enlargement for service by mail. Thus, if a statute provides that the time for taking action begins to run from the date of the filing of an order, the fact that notice of filing was given by mail does not entitle the party to the three-day extension allowed by Rule 6(e). See United States ex rel. Tennessee Valley Authority v. Easement & Right of Way, 386 F.2d 769 (6th Cir. 1967), cert. denied sub nom., Skaggs v. United States, 390 U.S. 947, 88 S.Ct. 1034, 19 L.Ed.2d 1137 (1968). Accord, Pizzichil v. Motors Ins. Corp., 90 F.R.D. 119, 121 (E.D.Pa. 1981). Professor Moore amplifies the above rule with the observations that

even though the operative statute or regulation provides that notice of the decision must be mailed to a party, the filing of the decision or some other prior event may trigger the period within which action must be taken. And, where this is the case, Rule 6(e) has no application.

2 Moore, Federal Practice ¶ 6.12 at 1500.210 (1982). Because the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent and operative effect of various provisions of the rules. See Dorr-Oliver, Inc. v. Linder Industrial Machinery Co., 263 So.2d 237, 239 (Fla. 3d DCA 1972).

Accordingly, we conclude that the enlargement period for service by mail provided in Rule 1.090(e) does not apply to the 90-day time limitation of Rule 1.260(a)(1).

Although the motion for substitution was required by Rule 1.260(a)(1) to be filed within ninety days, we consider that the motion, seeking an order extending the time for substituting the personal representative of the decedent as the party plaintiff, was, in effect, one seeking also an enlargement of time for substituting parties. As such, the motion is governed by the limitation periods set forth in Florida Rule of Civil Procedure 1.090(b). One of the grounds permitting enlargement under that rule is excusable neglect, provided the motion is filed no later than that required for “a motion for relief from a judgment under Rule 1.540(b).” In appellee’s motion to extend the time for substitution, it was specifically recited that “[settlement talks has been attempted between the undersigned’s law partner and defendant’s counsel.” On remand, the trial court should consider whether such fact could have reasonably lulled appellee into the belief that substitution may not have been required within the time strictures of Rule 1.260(a)(1). See New Hampshire Insurance Co. v. Kimbrell, 343 So.2d 107, 109-10 (Fla. 1st DCA 1977); King v. Tyree’s of Tampa, Inc., 315 So.2d 538 (Fla. 2d DCA 1975); Rule 1.540(b), Fla.R.Civ.P.

Accordingly, as in Kimbrell, we remand this cause to the trial court for the purpose of conducting a hearing to determine whether appellee’s failure to file timely his motion for substitution should be excused.

McCORD and SHAW, JJ., concur.

      . Rule 1.260(a)(1), Florida Rules of Civil Procedure, provides:
      If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in Rule 1.080 and upon persons not parties in the manner provided for the service of a summons. Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party, (e.s.)

      . Section 47 states:
      Where a valid and final personal judgment in an action for the recovery of money is rendered in favor of the plaintiff,
      (a) the plaintiff cannot thereafter maintain an action against the defendant on the cause of action, but
      (b) the plaintiff can maintain an action upon the judgment.

      . This view compares with the stance taken by the U. S. Supreme Court in Snyder v. Buck, 340 U.S. 15 at 20, 71 S.Ct. 93 at 96, 95 L.Ed. 15 (1950). Snyder reviewed Section 11(a) of the Judiciary Act of 1925, Ch. 229, 43 Stat. 936, 941 (former 28 U.S.C. § 780). This section is the predecessor of Rule 25(d), Federal Rules of Civil Procedure. As acknowledged by this court in New Hampshire Insurance Co. v. Kimbrell, 343 So.2d 107, 109 (Fla. 1st DCA 1977), Federal Rule 25 and Rule 1.260, Florida Rules of Civil Procedure are virtually identical, the latter having been modeled after the former. Consequently, federal decisions relating to the construction and history of Rule 25 and its predecessors are instructive. See Dorr-Oliver, Inc. v. Linder Industrial Machinery Co., 263 So.2d 237, 239 (Fla. 3d DCA 1972).

      . See note 1.


author: THOMPSON, Judge. PER CURIAM.

text:
    PREFERRED RISK MUTUAL INSURANCE COMPANY, a foreign corporation, Appellant, v. Sheryl Ward JACKSON, Roy Wade Jackson, Eddie Jackson, Danita L. Sparkman, Alan Leroy Birt, Susan Bedell, Richard Hall, and Ronnie Jones, a minor, Appellees.
    No. AD-403.
    District Court of Appeal of Florida, First District.
    April 8, 1982.
    On Rehearing May 28, 1982.
    Douglass E. Myers, Jr., of Webb, Swain & Watson, Jacksonville, for appellant.
    David A. Giant, of Middleton & Giant, Gainesville, Sheryl Ward Jackson and Roy Wade Jackson (on Motion for Rehearing), for appellees.
   THOMPSON, Judge.

Preferred Risk Mutual Insurance Company (Preferred Risk) appeals a final order finding that enforcement of an insurance policy clause excluding coverage for damage resulting from the operation of farm machinery would violate the legislative intent of Chapter 324, Florida Statutes and the public policy of Florida. We agree this finding is incorrect and reverse.

Appellee Sheryl Jackson was the named insured under an automobile liability insurance policy issued by Preferred Risk. This policy specifically excluded coverage for “bodily injury to others or damage to any property resulting from the operation of farm machinery.” Appellee Roy Jackson, Sheryl’s husband, was involved in a collision with an automobile while operating a farm tractor, owned by appellee Eddie Jackson, on a public road. Eddie Jackson made a demand upon Preferred Risk for the resulting property damage to his tractor. Preferred Risk filed a declaratory judgment action seeking a determination of the issues of law relating to coverage under Sheryl Jackson’s automobile insurance policy. The trial court found for the appellees Sheryl, Roy, and Eddie Jackson, reasoning that enforcement of the aforementioned exclusion would violate the legislative intent of Chapter 324, Florida Statutes and the public policy of Florida.

The trial court erred in finding the exclusionary language invalid. The policy clearly and unambiguously excludes from coverage the damage to Eddie Jackson’s tractor. See New Hampshire Insurance Co. v. Carter, 359 So.2d 52 (Fla. 1st DCA 1978). Furthermore, Section 324.021(1), Florida Statutes (1977) expressly excludes “farm tractors” from the definition of “motor vehicles.” Accordingly, it is difficult to imagine how the legislative intent of Chapter 324 or the public policy of Florida could be violated by a similar exclusion in the insurance policy.

REVERSED.

JOANOS and WIGGINTON, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellees’ Motion for Rehearing is granted. After review of the Motion for Rehearing and further review of the briefs of both parties, we adhere to our original opinion.

JOANOS, THOMPSON and WIGGIN-TON, JJ., concur.


author: FERGUSON, Judge.

text:
    NATIONAL UNION FIRE INSURANCE COMPANY, a corporation organized and existing under the laws of the State of Pennsylvania, and American Home Assurance Company, a corporation, organized and existing under the laws of the State of New York, Appellants, v. SCANDIA OF HIALEAH, INC., and Furniture Frames, Inc., a Florida corporation, Appellees.
    No. 81-106.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Rehearing Denied June 18, 1982.

      George J. Baya, Miami, for appellants.
    Gars, Dixon & Shapiro and Steven E. Chaykin, Miami, for appellees.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M., (Ret.), Associate Judge.
   FERGUSON, Judge.

Scandia of Hialeah and Furniture Frames, Inc. were two corporations, housed in the same warehouse building, which manufactured and sold plexiglass furniture. On February 9, 1972, the building and its contents, insured by appellant, were destroyed by fire. The president, David Chaykin, sued on one of several policies to recover for loss of contents. Judgment was rendered in favor of appellees on the issue of liability and damages. We affirmed the judgment of liability. All-Star Insurance Corp. v. Scandia, Inc., 321 So.2d 575 (Fla. 3rd DCA 1975) (but reversing the setting aside of jury’s verdict on damages). National Union Insurance was a party to the first trial and appeal.

This appeal is from a subsequent jury verdict awarding damages of $187,500 plus interest against a second policy which insures for business interruption losses. The trial court granted appellees’ motion to strike defenses and for partial summary judgment leaving only the issue of damages to be tried by jury.

Appellant raises ten issues by this appeal. As a first issue, National Union contends that the trial court erred in striking its defenses as to liability. We disagree and affirm on this point. The issue of liability was previously determined as between these same parties in the first action on the contents policy, thus the court was correct in ruling that National Union was collaterally estopped from raising the same defense in the business interruption action. See, e.g., Mobil Oil Corporation v. Shevin, 354 So.2d 372 (Fla.1977); Seaboard Coast Line R. R. Co. v. Cox, 338 So.2d 190 (Fla.1976); Tuz v. Edward M. Chadbourne, Inc., 310 So.2d 8 (Fla.1975); Board of County Commissioners of Dade County v. Eagle Family Discount Stores, Inc., 380 So.2d 486 (Fla. 3d DCA 1980); City of Hialeah Gardens v. Prieto, 353 So.2d 200 (Fla. 3d DCA 1977); Simco Operating Corporation v. City National Bank of Miami Beach, 341 So.2d 232 (Fla. 3d DCA 1977), cert. denied, 348 So.2d 952 (Fla.1977).

National Union further contends that because appellees could not prove some profit prior to the fire, it was unable to establish a business interruption loss. The law is to the contrary, however, and such losses may be based on profit expectancies, where such expected profits are not based on speculation but on real circumstances. See, e.g., General Insurance Company of America v. Pathfinder Petroleum Co., 145 F.2d 368 (9th Cir. 1944), cert. denied, 324 U.S. 844, 65 S.Ct. 679, 89 L.Ed. 1406 (1945); Fidelity-Phenix Fire Insurance Company of New York v. Benedict Coal Corp., 64 F.2d 347 (4th Cir. 1933), cert. denied, 289 U.S. 762, 53 S.Ct. 795, 77 L.Ed. 1505 (1933); Puget Sound Lumber Company v. Mechanics’ & Traders’ Insurance Company, 168 Wash. 46, 10 P.2d 568 (1932) (stating rule).

Loss for payroll expense for key personnel which insured would have had to incur during the time it would have taken to go back into business with the same quality of service which existed immediately preceding loss of business by fire is properly a question for the trial court to consider. The fact that an insured decides not to resume business and did not actually pay key personnel during the business interruption does not mean that that item cannot be considered for the purpose of determining the amount of recovery. Where the insured does not go back into business, the deduction from gross earnings for the purpose of determining actual loss would be all of the payroll expense less the amount the insured would have necessarily had to expend to retain key personnel in order to resume business. DiLeo v. United States Fidelity and Guaranty Company, 109 Ill.App.2d 28, 248 N.E.2d 669 (Ill.App.1969).

The record of this five-day jury trial is voluminous and includes over sixty exhibits. There is evidence as to the amount of time it would have taken to restore normal operations, the number of personnel that the restoration effort would have required, competent evidence that the future experience of the business would have been much better than the past experience if the loss had not occurred, and accounting evidence, though conflicting, of estimated gross earnings less charges and expenses which would not have continued during the period of business interruption. Having examined the evidence introduced on behalf of the appellee we conclude that it was sufficient to justify submission to the jury. If there is evidence tending to prove an issue though that evidence be conflicting or will admit of different reasonable inferences, it should not be taken from the jury and passed upon by the court as a question of law. Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981). Neither can we agree with appellant that the jury verdict was so unreasonable and excessive as to warrant reversal. The remaining points are equally without merit.

Affirmed.


text:
    GESCO, INC., the Chase Manhattan Bank, N.A., a national banking association and Seaboard Surety Company, a New York corporation authorized to do business in the State of Florida, Appellants, v. EDWARD L. NEZELEK, INC., and the Travelers Indemnity Company, Appellees. EDWARD L. NEZELEK, INC. and the Travelers Indemnity Company, Appellants, v. GESCO, INC., the Chase Manhattan Bank, N.A., a national banking association, and Seaboard Surety Company, a New York corporation authorized to do business in the State of Florida, Appellees.
    Nos. 80-1178, 80-2008.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearings Denied June 16, 1982.

      Karl W. Adler of Adler, Tolar & Adler, Fort Lauderdale, for Gesco, Inc.
    Robert H. Haggerty, New York City, for Chase Manhattan Bank and Seaboard Sur. Co.
    Wayne A. Cypen of Cypen & Cypen, Miami Beach, for Nezelek and Travelers.
   PER CURIAM.

This is a consolidated appeal from both a final judgment and a post judgment order in an action on a construction contract and a mechanic’s lien. Gesco, Inc. is the owner-developer of a condominium around which this controversy centers. Chase Manhattan Bank is the construction lender and the principal on a transfer bond and Seaboard Surety Company is the surety on the transfer bond. These parties appeal from a final judgment rendered in favor of Edward L. Nezelek, Inc., the project’s contractor. Nezelek appeals from a stay order prohibiting execution upon post judgment orders granting it attorneys fees and costs.

Gesco filed suit against Nezelek alleging breach of a condominium construction contract and sought damages for alleged substitution of inferior materials, defective construction and delay in completion. Nez-elek denied these charges and asserted several affirmative defenses, among which was a claim that Gesco was solely responsible for the construction delays. Nezelek also counterclaimed to foreclose on its $1,117,-614.92 mechanics lien which represented the alleged balance due under the contract. Nezelek joined Chase Manhattan Bank and Seaboard Surety Company in this action because they had posted the bond which transferred the lien. A non-jury trial followed.

The construction contract guaranteed that $6,500,000 would be advanced in monthly installments equal to 90% of the value of the work completed at the end of each requisition period, less previous payments, with the 10% retainage due thirty days after substantial completion of all work and compliance with various other requirements of the agreement. Under the terms of the contract “time was of the essence.” All work was to be substantially completed within fourteen months of the project’s commencement. It was further provided that this period would be extended only for delays attributable to Gesco, its architect or unavoidable casualties. However, in order that these delays inure to the contractor’s benefit, the contract required Nezelek to request an extension, in writing, within fifteen days of the delay. Otherwise, the claim was deemed waived and the completion date remained unaltered.

The condominium was not completed on schedule. A ninety day temporary certificate of occupancy, for the first ten floors of the building, was issued six months late. The final certificate of occupancy was issued three months after that. All told, the condominium was completed nine months after the date called for by the contract. (Construction began on or about June 20, 1973. The final certificate of occupancy was issued May 12, 1975.)

Gesco ceased making payments on the contract after January, 1975. On May 8, 1975, Nezelek filed a lien for the entire amount it claimed was due. The lawsuit upon which this appeal is based followed shortly thereafter.

The trial, even without a jury, lasted twelve days. On January 7,1980, the court entered final judgment in favor of Nezelek. The court found that Nezelek’s lien was valid; that Gesco suffered no damage as a result of the delay in the building’s completion; that there was no basis in evidence to apportion the delay between the parties; that Gesco had authorized the use of the materials utilized by Nezelek; and that Nezelek was responsible for only minor construction defects. The court also found that Nezelek was entitled to costs and attorneys fees but reserved jurisdiction to determine the amount of such award at a later date.

Following the denial of their motion for rehearing, appellants timely filed their notice of appeal. Subsequently, the lower court awarded Nezelek attorneys fees of $180,000.00. The court also assessed costs of $4,038.94 against Gesco and Chase Manhattan Bank. Seaboard Surety Company was assessed costs of $100.00. Upon motion of appellants, the court granted a stay of execution upon these awards pending final resolution of all appeals. Nezelek appeals, contesting the propriety of the stay.

Gesco now contends that Nezelek’s lien was premature and therefore should be considered fraudulent and invalid pursuant to Section 713.31, Florida Statutes. However, as this argument was not pursued below, it may not now be raised on appeal. See, Ronal Builders, Inc. v. Powell Brothers, Inc., 328 So.2d 869 (Fla. 4th DCA 1976), cert. denied, 339 So.2d 1171 (Fla.1976). Likewise, Gesco’s argument that Nezelek did not comply with the affidavit requirements of Section 713.06(3)(d)(1), Florida Statutes, was not raised below and is therefore deemed waived for purposes of appeal.

Gesco further contends that the court erred by not finding Nezelek responsible for any delays in the completion of the condominium project. It relies upon the contract provisions which required the contractor to request, in writing, extensions for delays caused by Gesco’s actions. The record clearly establishes that no such requests were tendered. However, once again, this argument was not raised below. Nezelek affirmatively pled that all delays in construction were attributable to Gesco. If Gesco’s position was that Nezelek waived the right to hold it responsible for delay, by virtue of Nezelek’s failure to request extensions, then Gesco was obligated to so inform the trial court. Having failed to do so, by either pleading or argument, Gesco is precluded from raising this issue on appeal.

Although the record demonstrates, and the trial court found, that Nezelek was responsible for some of the delay, the court was nevertheless correct in concluding that Gesco’s evidence did not establish a reasonable basis for apportioning responsibility for the total delay. See, United States, ex rel. Gray-Bar Electric Co. v. J. H. Copeland & Sons Construction, Inc., 568 F.2d 1159 (5th Cir. 1978), cert. denied, 436 U.S. 957, 98 S.Ct. 3072, 57 L.Ed.2d 1123 (1978). See generally, 17A C.J.S. Contracts, § 502(4). The record clearly substantiates the trial court’s finding that Gesco was responsible for considerable delay by such conduct as improperly locating a sewer easement, failing to timely supply lighting fixtures, and by allowing unit owners to effectuate changes in their apartments.

Gesco also challenges the lower court’s refusal to allow its real estate appraiser to testify as to damages suffered by Gesco as a result of the delay in the condominium’s completion. We have reviewed the proffered testimony, as well as the testimony of Gesco’s accountant, and concur in the lower court’s determination. The testimony of each witness was premised on several assumptions, which are not adequately supported by the record. Therefore, such testimony is not competent evidence on the issue of damages. We are first asked to accept the premise that were it not for the delay many additional condominium units would have been sold. However, neither expert could identify any party who definitely would have purchased but for the delay. We are also asked to consider the relative market conditions at the time the contract called for completion and the time completion actually occurred. The appraiser’s testimony was premised on the fact that the real estate market was suffering when the project was completed. This may well be true. However, there was no testimony offered which demonstrated that the particular condominium in question would be subject to general market conditions. The market conditions testified to concerned Broward County as a whole, whereas this building was located on the intra-coastal waterway in the City of Fort Laud-erdale. We do not view testimony concerning condominium sales in such municipalities as Margate, Coral Springs, Davie, Hollywood, etc. as necessarily relevant to condominium sales occurring in a particular location of Fort Lauderdale.

Perhaps, if testimony was offered concerning sales of comparable condominium units, in comparable condominium projects, in comparable locations during the time in question, the relevance of Gesco’s experts’ testimony would be more apparent. However, as presented, the appraiser’s testimony was not relevant and therefore properly excluded. Additionally, we find the appraiser’s assumption that every sale of a condominium unit, following the six month delay, would have occurred six months earlier were it not for the delay untenable. There is no basis for assuming that a sale which occurred two years after the condominium was completed would have occurred six months earlier had the project been completed on schedule. Only those sales which would have taken place during the delay period, but were cancelled or precluded due to the delay, would be proper components of Gesco’s damages. It should also be noted that even had the lower court erred by not accepting the appraiser’s testimony, such error would be harmless. We have already upheld the trial court’s decision not to apportion responsibility for delay. Therefore, exclusion of the appraiser’s testimony did not prejudice Gesco. Such testimony, concerning damages from delay, is not relevant if responsibility for that delay cannot be determined.

Another dispute concerns damages resulting from defective construction of the condominium’s parking deck. Gesco claims that Nezelek’s failure to follow its specifications resulted in a leaking deck, and that in addition to the alleged defect in the deck, that this leakage also damaged cars which were parked below the deck. The parking deck was made of concrete. Concrete, as noted by the trial court, is a porous material which will crack and allow water to leak through. Gesco was well aware of this fact. Its own consultants advised waterproofing the deck. Nevertheless, Gesco elected not to do so. Therefore, the fact that the deck did crack, allowing water to leak through, should have come as no surprise to Gesco. Having ignored the warnings of experts as to the consequences of failing to waterproof, Gesco may not now recover the expense it incurred in reconstructing the deck. It is interesting to note that upon this reconstruction, Gesco employed the very waterproofing technique which it rejected initially. Gesco’s other allegation concerning premature “shorring” by Nezelek is unsupported by the record. However, the record does contain evidence that Gesco may have contributed to its own injury by using heavy equipment on the deck.

The trial court found, and we agree, that the only defect for which Nezelek was responsible was its failure to waterproof certain planters located on the parking deck. However, contrary to Gesco’s assertions otherwise, the record does not show that this failure was a factor in the overall damage to the deck. The court’s award of $5,000 to Gesco for corrective work was proper and shall go undisturbed.

In order to avoid prolonged delay in the condominium’s opening, a bond was posted transferring Nezelek’s security from the project. Chase Manhattan Bank, the principal on the transfer bond, and Seaboard Surety Co., the bond’s surety, also challenge the final judgment. They argue that it cannot be sustained absent a showing that the mechanic’s lien had priority over the bank’s mortgage. They argue that in order to recover on the bond, Nezelek was required to show that the proceeds of a foreclosure sale would leave a surplus after payment of the mortgage. We disagree.

Pursuant to Section 713.24, Florida Statutes, the lien was transferred from real property to other security by the execution of a bond. This operates as a substitution of security pending a judicial determination as to the validity of the claim of lien. Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976). The transfer bond does not relieve the lien claimant from proving all the conditions precedent to perfection and enforcement of a lien against improved property. See, Resnick Developers South, Inc. v. Clerici, Inc., supra; McGuire v. Consolidated Electrical Supply, Inc., 329 So.2d 411 (Fla. 4th DCA 1976); Corry Construction Co. v. Hector Construction Companies, 363 So.2d 1125 (Fla. 1st DCA 1978). However, proof of priority over a mortgage is not such a condition precedent. The issue of priority is pertinent only after the validity and enforceability of the lien is established.

The contractor in this case has established all of the conditions necessary for recovery on the bond. This conclusion does not interfere with the mortgagee’s security interest in the real property. See, Sayville Federal Savings & Loan Ass’n. v. Schons, 17 Misc.2d 54, 183 N.Y.S.2d 106 (1958). The mortgagee may still foreclose its mortgage. The final judgment was entered against the Chase Manhattan Bank as principal on the bond, not as mortgagee. Chase had decided not to foreclose its mortgage, instead, it opted to post the bond and remove the mechanic’s lien from the property. Had the lien not been transferred, the judgment would have been subject to the mortgage.

The language of the bond clearly established an unconditional obligation for payment of the sum that the court determined was due the contractor. The bond did not limit the surety’s obligation to that which the contractor might have collected absent execution of the bond. The trial court, therefore, did not err in allowing full recovery on the bond, notwithstanding that foreclosure of the mortgage might have extinguished the mechanic’s lien had the bond not been executed. See, Gelder & Associates, Inc. v. St. Paul Fire & Marine Insurance Co., 34 N.C.App. 731, 239 S.E.2d 604 (1977), pet. for rev. den., 241 S.E.2d 843 (1978).

Appellants next contend that the trial court’s order finding them jointly and severally liable for attorneys fees totalling $180,000 was erroneous. Initially, we note that no appeal was taken as to the order setting the fee amount. However, as appeal was taken from the final judgment in which the entitlement to attorneys fees was established, we have jurisdiction to review the propriety of that determination.

The amount of attorneys fees recoverable from Chase Manhattan Bank and Seaboard Surety Co. is controlled by statute. The applicable statutory provisions are Sections 713.24 and 713.29, Florida Statutes. Section 713.29 expressly provides that attorneys fees awarded under Chapter 713, Florida Statutes, are taxed as costs. Transfer bonds are governed by Section 713.24. This statute provides that a transfer bond executed by a surety:

be in an amount equal to the amount demanded in such claim of lien, plus interest thereon at 6 percent per year for three years, plus $100 to apply to any court costs which may be taxed as any proceeding to enforce said lien. Such deposit or bond shall be conditioned to pay any judgment or decree which may be •rendered for the satisfaction of the lien for which such claim of lien was recorded, and costs not to exceed $100.

The legislative intent behind this section is clear. A surety is liable for no more than $100.00 in costs to the prevailing party. Construed in para materia, Sections 713.24 and 713.29 provide that a surety’s liability for the prevailing party’s attorneys fees may not exceed $100, which is the maximum liability of a surety for costs. Therefore, the court was without authority to hold Seaboard Surety Co. jointly and severally liable for attorneys fees, or any other costs, in excess of $100. See, Tuttle/White Constructors, Inc. v. Hughes Supply, Inc., 371 So.2d 559, 565 (Fla. 4th DCA 1979).

This holding is likewise applicable to Chase Manhattan Bank. We find no valid reason to distinguish between the surety and the principal in this area of attorneys fees. Neither are responsible for the dispute between Gesco and Nezelek, and neither significantly contributed to Nezelek’s court costs. Transfer bonds, such as the one in question, serve the public’s interest in that they free real property from judicial “limbo” and allow for its alienation. Logically the amount of the bond limits the principal’s liability where such liability arises solely from the bond.

It should be noted that Section 713.08, Florida Statutes, provides for a lien in the amount remaining unpaid to the lienor for labor or services or materials, but does not provide for inclusion of an amount for the attorneys fees and costs which the lienor may incur in enforcing a lien, even though Section 713.29, Florida Statutes, supra, provides for recovery of attorneys fees by the prevailing party which shall be taxed as costs. We recognize that because of the limitation of the surety’s liability for costs to the amount $100 the transfer of the lien to a bond may in some cases work to the detriment of the lienor. This is a legislative matter and one which is controlled by Section 713.24, Florida Statutes, supra, and as we have stated in Tuttle/White Constructors, Inc. v. Hughes Supply, Inc., supra, “We find nothing in the statutes, however, to prevent the entry of an unsecured judgment in an amount appropriate to cover such expenses against a losing party other than a surety.” Accordingly, the orders awarding attorneys fees and taxing costs are reversed insofar as they purport to assess against Seaboard Surety Company and Chase Manhattan Bank an amount in excess of $100. Gesco claims that the award of attorney’s fees against it was excessive. However, as Gesco did not appeal from the order awarding attorney’s fees, and as such fees are not limited by statute, we are without jurisdiction to review the award. Therefore, the orders, as to Gesco, are affirmed.

The final matter on appeal concerns the propriety of the trial court’s post judgment order staying execution upon its awards of attorneys fees and costs. A motion for stay under Florida Rule of Civil Procedure 1.550(b) is directed to the sound discretion of the trial court. Regan, Inc. v. Val-Ro Ltd., 396 So.2d 834 (Fla. 3d DCA 1981). Having reviewed the record, we are unable to conclude that the court’s order granting the stay of execution was an abuse of its discretion. The order is therefore affirmed.

The case is remanded to the trial court for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

DOWNEY and DELL, JJ., and BARK-ETT, ROSEMARY, Associate Judge, concur.

NOTE: DELL, J., did not participate in oral argument but has reviewed the presentation made at that proceeding.


text:
    Louis E. WOLFSON, Appellant, v. Bart L. COHEN, Appellee.
    No. 82-65.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Rehearing Denied June 16, 1982.

      Fred R. Baisden, Jr., Therrel, Baisden, Stanton, Wood & Setlin and Julian R. Benjamin, Miami Beach, for appellant.
    Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for appel-lee.
    Before HENDRY and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Gulf & Eastern Development Corp. v. City of Fort Lauderdale, 376 So.2d 878 (Fla. 4th DCA 1979); City of Lauderdale Lakes v. Corn, 371 So.2d 1111 (Fla. 4th DCA 1979); City of Jacksonville v. Brentwood Golf Course, Inc., 338 So.2d 1105 (Fla. 1st DCA 1976); Price v. Rome, 237 So.2d 835 (Fla. 3rd DCA 1970); Fidelity and Deposit Company of Maryland v. Atlantic National Bank of Jacksonville, 234 So.2d 736 (Fla. 3rd DCA 1970).


author: PER CURIAM. COWART, Judge, PER CURIAM.

text:
    CITY OF NEW SMYRNA BEACH, a municipal corporation (on the relation of Edwin A. Baetzman, as Intervenor/real property in interest), Appellant, v. Delores A. BARTON, Appellee.
    No. 81-437.
    District Court of Appeal of Florida, Fifth District.
    April 21, 1982.
    Rehearing Denied May 26, 1982.
    C. Allen Watts of Watts & Biernacki, P. A., DeLand, for appellant.
    Thomas D. Wright, New Smyrna Beach, for appellee.
   PER CURIAM.

In the City of New Smyrna Beach, a finger-shaped portion of a beachfront R-l zone protruded into a trapezoidal R-3 zone which also fronted on the beach. The city rezoned the finger from R-l to R-3, thereby decreasing the minimum lot width for a single-family dwelling within the finger of land from one hundred feet to fifty feet (see diagram).

The circuit court struck down the rezoning ordinance, holding that it did not further the public health, safety or welfare. The present rule of law in Florida is that a court may not invalidate an ordinance rezoning property unless the enacting body’s action was not “fairly debatable;” in other words, the ordinance must be upheld so long as an arguably reasonable basis exists to support the ordinance. Town of Indialantic v. Nance, 400 So.2d 37 (Fla. 5th DCA 1981). It is said that the purpose of this rule is to prevent a court from substituting its judgment for that of the zoning authority. Broward County v. Capeletti Bros., Inc., 875 So.2d 313 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980). The city introduced testimony in the circuit court to show that it rezoned the property because it had determined that, since the rezoned area was bounded on one side by the ocean and on two out of the remaining three sides with fifty-foot lots, the land rezoned would be more compatible with its surroundings if it were likewise subject to fifty-foot lot restrictions. The property classification of this land is not so clear that the circuit court, or this court, can say, as a matter of law, that the city’s action was not “fairly debatable.”

Accordingly, we reverse.

REVERSED.

DAUKSCH, C. J., and COBB, J., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I concur in a reversal, but not application of the “fairly debatable” rule. That rule properly applies to legislative actions such as ordinances enacting comprehensive zoning plans. This rule of judicial non-review is justified under our constitutional scheme of separation of governmental powers only when applied to purely legislative acts. However, governmental action on both rezoning and zoning variances and special exceptions are applications of a legislated rule of law to a particular instance (particular property) and are in substance executive in character, regardless of the form (ordinance, resolution or otherwise) by which that action is taken. When misled because executive action is accomplished by an ordinance (a usual form of legislative action), courts refuse a proper scope of judicial review and thus fail their constitutional duty of protecting citizens from excesses of governmental executive power.

Due process applies to applications for rezoning, the same as to applications for variances and special exceptions. Hearings on proposed executive actions in zoning cases should contain all of the safeguards of due process, see Coral Reef Nurseries, Inc. v. Dade County, 410 So.2d 648, No. 80-1979 (Fla. 3d DCA 1982), and be subject to judicial review for both procedural and substantive due process. As to appeals, this requires judicial review to assure that executive governmental action restricting citizens’ property rights be accomplished impartially, with procedural fairness on reasonable and specific standards and guidelines uniformly applied and supported by substantial competent evidence. The “fairly debatable” rule, properly applicable to legislative acts, does not meet due process standards relating to hearings on, and appeals from, executive governmental actions. Executive governmental action in zoning cases, as in other cases, should not be sustained on judicial review merely because such action is fairly debatable. Almost everything can be fairly debated.

Although posed as an attack on the constitutionality of the city’s rezoning “ordinance,” this action in the circuit court was essentially a judicial review of the city’s zoning action, but the issues there were not so presented and do not support the final judgment. That is why I concur in a reversal.

ON MOTION FOR REHEARING

PER CURIAM.

The appellee’s motion for rehearing in this cause is granted to the extent that the diagram shown in our original opinion is deleted, and the following diagram is substituted in its place:

The motion for rehearing otherwise is

DENIED.

DAUKSCH, C. J., and COBB and CO-WART, JJ., concur.


author: THOMPSON, Judge. ERVIN, Judge,

text:
    Lorenzo PEREZ, etc.; Alphonso Joa and Stonewall Insurance Company, Appellants, v. STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. AC-6.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    Rehearing Denied June 15, 1982.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg, Miami, and Grover, Ciment, Weinstein & Stauber, Miami Beach, for appellant Perez.
    R. Benjamine Reid of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for appellants Joa & Stonewall.
    Jay 0. Barber and Alan E. DeSerio, Tallahassee, for appellee.
   THOMPSON, Judge.

This is an appeal from a final summary judgment entered in favor of the State of Florida, Department of Transportation (DOT) on complaints filed by Perez and Joa. We affirm.

Jose Perez was a passenger in a vehicle driven by appellant Joa on the McArthur Causeway. The Joa vehicle was traveling on a wet roadway in excess of the speed limit. Upon reaching the steel grating on the draw portion of the bridge, the vehicle suddenly made an abrupt right hand turn of nearly 90 degrees, crossed three lanes of traffic, struck the restraining curb and vaulted through the pedestrian handrail into Biscayne Bay. Perez was thrown from the car and drowned. Perez’ parents sued Joa and DOT. Joa filed a third party complaint against the DOT. Based upon depositions and on the affidavits of DOT personnel in evidence, the court granted summary judgment in favor of DOT on the ground that the alleged acts fell within the “planning” exception to the waiver of sovereign immunity under § 768.28, Fla.Stat. (1975).

In their complaints, Perez and Joa alleged negligent design of the bridge, negligent maintenance of the bridge, and failure to warn of a dangerous condition.

The uncontroverted evidence in the record shows that the DOT adopted the American Association of State Highway Officials’ (AASHO) standards for bridge design which included the specifications for the metal grating, and the curb-rail system. After reciting the four-step test set forth by the Supreme Court in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla.1979), the trial judge found that the design of the bridge fell within the planning exception to § 768.28, Fla.Stat. Although the appellants submitted some evidence that a better standard could have been adopted, the trial court found that this was “second guessing” of a governmental decision which Commercial Carrier intended to prevent. We agree.

The appellants have relied on a number of cases, particularly Ferla v. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 759 (Fla.1980), as authority for the proposition that the design of a bridge is not an act of planning but is an operational act and that the DOT is therefore not immune from liability. However, these cases merely hold that the facility in question cannot be negligently designed or negligently constructed. The steel grating lift span met AASHO requirements and the decision to use it was a design decision that met accepted standards existing at the time it was constructed. Unlike Feria, there is no evidence in this record of negligent design of the bridge or any of its components. In the instant case, the design and construction of the bridge in accordance with the accepted standards promulgated by AASHO was an immune planning decision.

Appellants contend that the continued maintenance of the curb-rail system and the metal grating on the bridge was an operational activity so as to be actionable. Negligent maintenance is an actionable operational level activity. However, there is no evidence of negligent maintenance in this case. Appellants make it clear that they are not speaking of maintenance as the term is normally used but are speaking of maintenance in the sense of allowing a condition to exist.

It is contended that the DOT is guilty of negligent maintenance for failing to replace or modify the curb-rail system and the steel grating. A similar contention was made in Feria where it was alleged that the traffic lanes on the causeway were too narrow. The Feria court recognized that it was difficult to distinguish the question of the median strip design, which it had already decided was operational, and the fixing of the size of the roadway in question. The Feria court took judicial notice that the solution to this problem could involve only the consolidation of the two heavily traveled traffic lanes into one or the construction of a new or additional bridge. Feria held that this determination was a basic policy decision which would be the exercise of a planning level function from which the county was immune.

The upgrading or modification of structures to meet current standards is often of such magnitude as to constitute replacement or reconstruction. There are many roads and bridges in the State of Florida that were adequate for the amount of traffic and the size and speed of vehicles traveling on them when designed but which are not up to present standards. The modification or replacement of all of these roads and bridges involves the spending of many times the money available annually to the DOT for that purpose.

As was the case in Feria it would require a major expenditure of funds to replace or modify the bridge as appellants contend should have been done. The evidence in this record shows that the bridge handled an average traffic flow of approximately 12 million vehicles per year and there had been apparently no prior accidents attributable to the steel grating. There was further evidence that there were numerous intersections and highways within the Dade County area that were more dangerous to the traveling public. It is the responsibility of DOT to expend the funds available for updating, improving or modifying existing facilities in a manner that is of the most benefit to the public. Their decision as to where and on which facilities these available funds are to be spent is a planning decision. If the appellants are correct in their contention, the state could easily be liable for more than 90% of the accidents occurring between Miami and Key West and yet it would probably require the entire budget of the DOT for several years to reconstruct the roads and bridges on that route to meet modern standards.

Furthermore, there is no evidence that the alleged negligent maintenance caused the accident. On the contrary, the only evidence as to causation is that the steel grating probably would not cause a vehicle to suddenly cross from the median to the outside curb at approximately a 90 degree angle. There is no evidence that a curb or handrail constructed to even higher than modem day standards would have prevented the vehicle from going off the bridge into the water. The DOT is not required to place impenetrable barriers along the sides of a bridge.

The DOT’s alleged negligence in failing to warn does not warrant further discussion in view of the numerous decisions holding that the selection and placement of traffic control devices are discretionary governmental planning functions and are therefore exceptions to the waiver of sovereign immunity under § 768.28, Fla.Stat. See Feria.

AFFIRMED.

BOOTH, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge,

dissenting.

I respectfully disagree with the majority’s conclusion that there was no genuine issue of material fact as to whether the continued maintenance of the curb-rail system and the metal grating on the bridge was an operational level activity. Nor do I believe the majority’s reliance upon Ferla v. Metropolitan Dade Cty., 374 So.2d 64 (Fla. 3d DCA 1979), provides a useful test for identifying the levels of governmental activity. Feria, on the one hand, held that Dade County’s decision to design a median strip in a certain manner was an operational level function, commenting that the public entity’s determination of its configuration “does not differ from the activity involved in properly maintaining already installed traffic control devices,” id. at 67; yet, it also held that the entity’s decision not to widen traffic lanes, nor to reduce speed limits necessarily involved the exercise of discretion. In my judgment, such distinctions, and the reasons given for them, provide no practical assistance to either the bench or the bar in determining whether the claimed act of negligence was operational or discretionary action. As I will endeavor to explain, if the test iterated in Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968), and adopted by the Florida Supreme Court in Commercial Carrier Corp. v. Indian River Cty., 371 So.2d 1010, 1022 (Fla.1979), as a means of identifying the functions, had been observed by Feria and the majority here, all the activities at issue could, under the circumstances delineated in Johnson, be characterized as operational. Because that test has often been ignored by Florida appellate court decisions, I think it now requires careful scrutiny.

Johnson explains that only those basic policy decisions which have been committed to coordinate branches of the government are immunized from judicial review; that a basic policy decision must be a considered one, i.e., one made by the public entity’s conscious balancing of risks and advantages, Johnson v. State, supra, 73 Cal.Rptr. at 249, 447 P.2d at 361, n. 8; that the burden of demonstrating whether the decision is considered rests on the governmental body, not the injured plaintiff. Finally, Johnson holds that although the initial decision — if “considered” — to act or not to act may not be subjected to tort liability, once subsequent facts are revealed placing the public entity on notice of certain dangers attending its decision, a duty arises requiring the agency to carry out its decision in a non-negligent manner. To summarize: if the challenged act is either not “considered,” as defined by Johnson, or “considered” but followed by a change of condition producing a dangerous condition known to the public entity, the act is deemed to be nondiscretionary.

The situation in Johnson provides a suitable benchmark. There, the original decision of the California Youth Authority to release a youthful offender was held to be one made in the exercise of discretion, and therefore immune; but, in carrying out the decision, not only to release the youth, but to place him in a foster home, once the Authority had knowledge of the parolee’s propensity for violence, it was under a duty to advise the intended foster parents of such facts, and the failure to do so rendered it subject to an action in negligence. The court made the following observations:

Once an official reaches the decision to parole to a given family, however, the determination as to whether to warn the foster parents of latent dangers facing them presents no such reasons for immunity; to the extent that a parole officer consciously considers pros and cons in deciding what information, if any, should be given, he makes such a determination at the lowest, ministerial rung of official action. Judicial abstinence from ruling upon whether negligence contributed to this decision would therefore be unjustified; coupled with the administrative laxness that caused the loss in the first instance, it would only result in the failure of governmental institutions to serve the injured individual.

73 Cal.Rptr. at 250, 447 P.2d at 362 (e.s.). The court continued:

[N]ot only does the officer’s decision as to warnings fail to rise to the level of governmental decisions calling for judicial restraint, but also the state failed to prove that the officer consciously considered the risks to plaintiff and determined that other policies justified them.... In fact, to the contrary, this is a classic case for the imposition of tort liability. Defendant failed to warn plaintiff of a foreseeable, latent danger, and this failure led to plaintiff’s injury from precisely the expected source; courts encounter this type of allegation daily and are well suited to resolve its validity under traditional tort doctrine,.

73 Cal.Rptr. at 241, 447 P.2d at 363.

The Johnson analysis was applied by a more recent California case, Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 491 P.2d 1121 (1972), to a question involving whether design immunity, once having attached, is perpetually effective regardless of any subsequent change in circumstances of which the public entity had notice. The court unequivocally replied that the governmental entity was entitled to immunity only so long as conditions had not changed. It continued:

Having approved the plan or design, the governmental entity may not, ostrich-like, hide its head in the blueprints, blithely ignoring the actual operation of the plan. Once the entity has notice that the plan or design, under changed physical conditions, has produced a dangerous condition of public property, it must act reasonably to correct or alleviate the hazard.

99 Cal.Rptr. at 151, 491 P.2d at 1127. It encapsulated its holding with the following words:

[Wjhere a plan or design of a construction of, or improvement to, public property, although shown to have been reasonably approved in advance or prepared in conformity with standards previously so approved, as being safe, nevertheless in its actual operation under changed physical conditions produces a dangerous condition of public property and causes injury, the public entity does not retain the statutory immunity from liability ....

99 Cal.Rptr. at 148-49, 491 P.2d at 1130-31. See also Ducey v. Argo Sales Co., 25 Cal.3d 707, 159 Cal.Rptr. 835, 602 P.2d 755 (1979) (failure of state to erect median barrier after state had notice of highway’s dangerous condition subjected the state to an action in negligence).

Without citing the above California authorities, the Second District Court of Appeal similarly determined that an agency was not immune from liability in Savignac v. Dept. of Transportation, 406 So.2d 1143 (Fla. 2d DCA 1981), and reversed a summary judgment in favor of the Department on facts showing that the plaintiff suffered severe injuries after diving from a bridge into shallow water whose banks had been shoaled by a contractor under the direction of the Department. The court held that the Department could be subjected to liability for its failure to erect signs warning the public of the latent danger after it was provided notice that persons had previously dived from the bridge into the general area where dredging was conducted. Under the circumstances involved, the court concluded that the agency’s standard of care should be no different than that owed by a trespasser to a landowner, i.e., to exercise reasonable care and caution to avoid injuring the trespasser once the landowner had discovered the peril. To the same effect, see City of Tamarac v. Garchar, 398 So.2d 889 (Fla. 4th DCA 1981) (a duty was placed upon the city to provide crashworthy areas adjacent to a roadway once the eity had notice of the roadway’s dangerous configuration).

In applying the Johnson analysis to the facts before us, I would agree DOT has met its burden of showing that its initial decision to build the Mathews Causeway Bridge in 1957 was a considered one; that there was a conscious balancing of alternatives in reaching its decision, since DOT designed the bridge in compliance with the minimum standards recommended by the American Association of State Highway Officials. There were no facts presented revealing that the bridge was originally designed in a reckless disregard of the public safety, nor were there any facts showing that DOT was then aware of any latent dangers attending the design. If this were the only evidence before us, I could readily agree with the majority that the summary judgment should be affirmed. Appellant’s case does not, however, rest solely upon a policy decision made in 1957. Appellants also alleged that DOT had negligently failed to repair or remedy the bridge’s known hazards, and had failed to warn the public of them. Appellants supported their allegations with evidence showing, as the trial court’s order reflected, that DOT’s assistant maintenance engineer was aware that the steel grating on the bridge had become “travel polished” after 20 years’ use, and consequently provided less traction to passing vehicles than asphalt when wet. By focusing on that segment of the evidence alone, one does not even need to reach the obsolescent-design theory refined in Baldwin and Ducey, because here pure maintenance activity is involved, i.e., the condition of the road had fallen below the original design standards. In my view, the state’s failure to maintain a bridge that has become “travel polished” does not materially differ with the level of decision-making arising from the “proper maintenance of a traffic sign” which had been knocked to the ground, or the “proper maintenance of painted letters ‘STOP’ on the highway” which had become worn and faded through the passage of time. See Commercial Carrier Corp., supra, 371 So.2d at 1022.

The rule in Baldwin and Ducey also has applicability to the following facts: There was evidence before the court revealing that DOT’s engineers had known for several years preceding the accident of October 19, 1975, that the curb, the handrail, and the metal grating on the bridge had fallen below reasonable engineering safety standards. As a matter of fact, DOT had, in either late 1974 or early 1975, placed the curb-rail configuration of the bridge on its list of hazardous conditions requiring correction, and had requested funding from the Federal Highway Administration in an effort to remedy the known defects, but both requests were denied. Despite the denial, DOT was not without other options available to it. It could, at considerable less expense than resurfacing the bridge, have erected stronger guardrails, or, at the very minimum, placed traffic signs before the bridge warning passing motorists of the bridge’s dangers under wet conditions; yet it elected to do nothing.

Notwithstanding the majority’s reliance on Feria, holding that a public entity’s failure to warn was a determination made at the discretionary level, a number of more recent appellate opinions have held that such decisions are made at the operational level. See, e.g., Neilson v. City of Tampa, 400 So.2d 799 (Fla. 2d DCA 1981) (a decision to design an allegedly dangerous intersection not adequately controlled with traffic control signs); Dept. of Transp. v. Webb, 409 So.2d 1061 (Fla. 1st DCA, 1981) (a decision not to install additional warning devices at a railroad crossing); Savignac v. Dept. of Transportation, supra.

The Johnson court’s observations apply with equal force to the instant case. This is a classic case for the imposition of tort liability. The Department failed to correct or to warn the public of a foreseeable, latent danger of which it had been aware for a sufficient length of time before the accident. Under the circumstances, the Department had no discretion in deciding whether or not to act. It was required to act. And because of its failure to act, it should now answer as any other defendant to an action exposing it to tort liability.

Because I am convinced that genuine issues of material fact remain unresolved, I would reverse the summary judgment and remand the case for proceedings consistent with the views expressed in this dissent.


text:
    Sam BELL, Appellant, v. Dr. H. C. ANDERSON, an individual and American States Insurance Co., a foreign corporation, Appellees.
    No. AE-368.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    Rehearing Denied June 10, 1982.
    Jerome M. Novey of Frates, Jacobs, Far-rar, Novey & Blanton, Tallahassee, for appellant.
    Fred M. Johnson and Randolph P. Murrell of Fuller, Johnson & Harrison, Tallahassee, for appellees.
   OWEN, WILLIAM G, Jr. (Retired) Associate Judge.

Expressing himself in the common vernacular, Sam Bell threatened to kick a certain portion of Dr. Anderson’s anatomy, whereupon Anderson caused to be executed a sworn complaint by which Bell was charged with and tried for the criminal offenses of disorderly conduct and bare assault. Bell was acquitted on both charges. He then filed this action against Anderson for malicious prosecution. The trial court granted a summary final judgment for Anderson, holding that as a matter of law the admitted threat established probable cause for Anderson to initiate criminal proceedings against Bell. We reverse.

Since lack of probable cause for initiating a prior judicial proceeding is an essential element of a cause of action for malicious prosecution, Tatum Bros. Real Estate & Inv. Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926), the existence of probable cause is necessarily a complete defense. Probable cause to have instituted the prior judicial proceeding is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged. Dunnavant v. State, 46 So.2d 871 (Fla.1950); Gallucci v. Milavic, 100 So.2d 375 (Fla.1958); Kelly v. Millers of Orlando, Inc.,,294 So.2d 704 (Fla. 4th DCA 1974). In a malicious prosecution action, the existence of probable cause is a question of law to be determined by the court when the facts are without dispute. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979).

The operative facts surrounding the incident out of which the threat arose are without material dispute. For some period of time Bell and Anderson had been in a continuing dispute over Bell’s right to use a certain lake which borders on both Anderson’s property and property owned by Bell’s brother. On the day of this incident, Bell and his brother were fishing from a rowboat on the lake. Anderson, with his two sons, approached in a motorboat and after a brief conversation with Bell, Anderson and sons departed, only to return shortly thereafter. This time, Anderson’s boat came close enough to Bell’s rowboat to cut a fishing line and cause Bell’s rowboat to rock. At that point, Bell stood up and warned Anderson that should Anderson return and again attempt to cut Bell’s fishing line, Bell would “kick his ass.” Anderson, who at that time was at least 30 to 40 feet away from Bell’s rowboat, did not respond but immediately left the area in his motorboat, apparently to proceed directly to the authorities to initiate the criminal proceedings against Bell.

In order for the words spoken by Bell to Anderson to constitute a breach of the peace or disorderly conduct, as proscribed by Section 877.03, Florida Statutes (1977), the words had to be such which “by their very utterance would inflict injury or tend to incite an immediate breach of the peace.” State v. Saunders, 339 So.2d 641 (Fla.1976). Obviously the words were not such that by their very utterance would inflict injury on Anderson and we need not pursue that facet. However, Anderson argues that the threat was offensive and in the absence of a “disarming smile,” amounted to “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); White v. State, 330 So.2d 3 (Fla.1976), which would tend to incite an immediate breach of the peace. While we would hope that our civilization had progressed beyond the point where the urge for combat was so easily aroused, we remain cognizant of the realities of life. Nonetheless, given the undisputed circumstances of this case — Bell and his brother in a rowboat, and Anderson and two teen-aged sons in a motorboat separated from Bell by 30 to 40 feet of water— we find no basis upon which Anderson could come to an honest and reasonable belief that the threat, made conditional only upon Anderson repeating the conduct to which

Bell objected, would likely incite an immediate breach of the peace and thus be disorderly conduct under the statute. We have not ignored the case of United States v. Sturgill, 563 F.2d 307 (6th Cir. 1977), cited by appellee, but we find it unpersuasive because not only was the language which the defendant in that case used much stronger and apparently unconditional, but also, the opinion does not state any facts concerning the circumstances under which the threat was uttered and thus we cannot evaluate the basis upon which the court determined that the language qualified as “fighting words.”

Assault, with which Anderson also charged Bell, is defined by Section 784.-011(1), Florida Statutes (1977), as an intentional, unlawful threat by word or act to do violence to the person of another, coupled with the apparent ability to do so, and. doing some act which creates a well founded fear of such violence being done. Given that Bell made a verbal threat to do violence to the person of Anderson, there still were absolutely no facts or circumstances which could have lead Anderson to an honest and reasonable belief either that (1) Bell had the apparent ability to carry out the threat, seated as he was in a rowboat at least 30 to 40 feet away from Anderson’s moving motorboat, or (2) Bell had committed any act subsequent to uttering the threat which would create a well founded fear of such violence being done, the threat at most having been made conditional upon Anderson repeating the conduct to which Bell had objected. While the case of Blanton v. State, 388 So.2d 1271 (Fla. 4th DOA 1980), held that the conditional nature of a threat would not preclude a conviction for assault, the Court in that case correctly noted that the conditional nature of the threat is evidence going to the question of whether the person threatened had a well founded fear that violence was imminent. Dr. Blanton, pointing a shotgun at an officer 30 feet away, said, “Fve got five shots in this gun, and if you don’t get off my property, I’ll blow your heads off!” That is a far cry from the circumstances of this case. Willard v. State, 386 So.2d 869 (Fla. 1st DCA 1980), also cited by appellee, is likewise clearly distinguishable on its facts.

We hold that on the undisputed facts and circumstances recited above, there was no basis upon which a cautious person, acting in good faith, could be led to the honest and reasonable belief that Bell was guilty of either disorderly conduct or bare assault, and thus Anderson acted without probable cause in instituting the criminal proceedings against Bell. The summary judgment in favor of Anderson is reversed and this cause remanded for further proceedings, the lack of probable cause as an element of the malicious prosecution action being herewith determined as a matter of law in favor of Bell.

REVERSED AND REMANDED.

MILLS and WENTWORTH, JJ., concur.

      . Appellee’s brief, to counter the thrust of appellant’s argument that the existence of factual issues precluded disposition by summary judgment, accurately points out the absence of any dispute on the material facts. Thus, while we agree with appellee in this respect, we disagree as to the legal effect of the undisputed facts.

        . See, Anderson v. Bell, 411 So.2d 948 (Fla. 1st DCA 1982).