text:
    STATE ex rel. Gordon G. OLDHAM, Jr., State Attorney for the Fifth Judicial Circuit, Petitioner, v. The Honorable Ernest C. AULLS, Jr., Circuit Judge, Respondent.
    No. 81-1061.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1981.
    Rehearing Denied Jan. 12, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for petitioner.
    William H. Stone, Clermont, and Robert Q. Williams, Tavares, for respondent.
   SHARP, Judge.

The state attorney for the Fifth Judicial Circuit petitions for a writ of certiorari to review an order of the circuit court for Lake County disqualifying his office from prosecuting a criminal defendant. For the reasons discussed below certiorari is granted; the order is quashed; and the cause remanded for further proceedings consistent with this opinion.

In a prior proceeding, Preston Crum and Marvin Crum were jointly tried for murder. The Public Defender’s office was appointed to represent them originally, but withdrew as to Preston because of a conflict of interest. Robert E. Pierce assisted in the defense of Marvin Crum and Preston was apparently represented by other appointed counsel. Preston’s conviction was subsequently overturned by the Supreme Court because the trial court failed to sever his trial from Marvin’s. The State is now seeking to reprosecute Preston, but in the interim, Pierce has become an Assistant State Attorney. Preston’s defense counsel claims he will call Pierce as a witness and therefore, pursuant to DR 5-101 and 5-102, Code of Professional Responsibility, the entire office of the State Attorney should be disqualified from prosecuting Preston.

At a hearing to consider defense counsel’s motion, it was stipulated that attorney Sam Power handled Marvin Crum’s defense; that Pierce was only present in court one or two days during the trial; and beyond that, Pierce was not involved in the first Crum trial. The State did not intend to call Pierce as a witness, nor involve him in any manner in Preston’s prosecution. The trial court found that no transmission of confidential information relating to the Crums had occurred between Pierce and the Office of the State Attorney, nor was there a finding that such was a possible or likely occurrence.

The trial court’s disqualification of the State Attorney’s Office was based solely on the fact that the defense named Pierce as a possible defense witness and the court considered the State Attorney’s Office a “law firm” for purposes of Canon 5. While the trial court was not specific as to which subsection(s) of the applicable disciplinary rules it determined was dispositive, from the record it appears that the relevant section is Disciplinary Rule 5-102(B):

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client. (Emphasis added).

There was no showing that Pierce’s testimony would be prejudicial to the State, in any event.

In Pantori, Inc. v. Stephenson, 384 So.2d 1357 (Fla. 5th DCA 1980), we recognized: “[A] trial court may decide after consideration of a motion alleging sufficient facts which, if true, would warrant removal of opposing counsel, that removal is mandated.” 384 So.2d at 1359. We also stated in Pantori:

The purpose of the hearing is not to determine whether there has been breach of the Code of Professional Responsibility for which the attorney may be disciplined but whether, because of such breach one party has an- unfair advantage over the other which can only be eliminated by removing the attorney. 384 So.2d at 1359.

While we recognize that Pantori involved civil litigants and the case at bar is a criminal one, we are not persuaded that the test should be different. The removal of an attorney requires some basis for a finding that the attorney’s continued representation would make the proceedings basically unfair either to the client or a former client.

We find no such basis in this case. Public policy dictates against forcing a dis-assoeiation between a client and his chosen counsel (in this case the duly elected state attorney) unless these circumstances exist. In their absence disqualifying the entire state attorney’s office merely for a possible violation of a Code of Professional Responsibility Disciplinary Rule is a departure from the essential requirements of law.

CERTIORARI GRANTED; ORDER OF TRIAL COURT IS QUASHED.

0RFINGER and COBB, JJ„ concur.

      . Crum v. State, 398 So.2d 810 (Fla.1981).

      . The purpose of calling Pierce is apparently to impeach the anticipated testimony of the defendant’s brother. In support of their motion, the defense submitted the following transcript of prior testimony of the defendant’s brother:
      QUESTION: What made you change your mind about what was and what wasn’t the truth?
      MARVIN CRUM: Talking to my lawyers.
      QUESTION: Have you been promised anything in exchange for your testimony, Marvin?
      MARVIN CRUM: Yes, sir.
      QUESTION: What Marvin?
      MARVIN CRUM: Mr. Power, Mr. Bradley, and Mr. Pierce said if I was convicted of this, my brother and myself that they would try to get me just as least time as they could.
      On retrial whether or not Marvin’s testimony will conflict with the above is at this point conjecture.

      . What may be prejudicial to a client will frequently be a different inquiry when the State is the client because of the affirmative duty of every public prosecutor to inform a defendant of the existence of evidence tending to negate guilt. Disciplinary Rule 7-103(B).

      . See Thompson v. State, 246 So.2d 760 (Fla.1971). We do not reach the question of whether or not all of the attorneys employed by the State Attorney in a particular judicial circuit should be considered as one “law firm” for purposes of Canon 5. We have concluded in another context that this may not necessarily follow where offices of a public agency are separated by distance and disparate responsibilities. Babb v. Edwards, 400 So.2d 1239 (Fla. 5th DCA 1981).

      . See State Farm Mut. Auto. Ins. Co. v. Wright, 348 So.2d 1198, 1199 n.2 (Fla. 3d DCA 1977).

      . This opinion should not be construed as absolving a state attorney from personal responsibility for adherence to the Code of Professional Responsibility.


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Kenneth Ray DUCKSWORTH, Respondent.
    No. 81-489.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    Rehearing Denied Jan. 26, 1982.

      Ralph L. Marchbank, Jr., Asst. State Atty., Sarasota, for petitioner.
    Elliott C. Metcalfe, Jr., Public Defender, Sarasota, and Becky A. Titus, Asst. Public Defender, Sarasota, for respondent.
   OTT, Judge.

In reliance upon our opinion in State v. Duke, 378 So.2d 96 (Fla. 2d DCA 1979) the county court permitted the state to introduce evidence, in appellee’s DUI prosecution, that when arrested he had refused to submit to a test for alcohol in his system. The circuit court reversed appellee’s conviction, on the ground that Duke was effectively invalidated by Sambrine v. State, 386 So.2d 546 (Fla.1980).

The circuit court was correct. Duke was predicated upon our belief that the conditions for admissibility set forth in State v. Esperti, 220 So.2d 416 (Fla. 2d DCA 1969), cert. dismissed, 225 So.2d 910 (Fla.1969), had been met, in that the tests authorized by section 322.261(1)(a), Florida Statutes, are compulsory. Sambrine holds that they are not.

The state’s petition for certiorari is DENIED.

SCHEB, C. J., and RYDER, J., concur.


author: PER CURIAM. FERGUSON, Judge

text:
    Raymond ATWOOD and Alberta Atwood, his wife, Appellants, v. ROWLAND TRUCK EQUIPMENT, INC., a Florida Corporation, Appellee.
    No. 80-2161.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Rehearing Denied Jan. 29, 1982.
    Wolfson & Diamond and Richard A. Grossman, Miami Beach, for appellants.
    Victor J. Dirsé, North Miami, for appel-lee.
    Before HENDRY and FERGUSON, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   PER CURIAM.

Affirmed.

FERGUSON, Judge

(dissenting).

Raymond Atwood sued appellee Rowland Truck Equipment, Inc., for damages for back injuries suffered when he lifted a fifty-gallon gas tank after it fell off a truck while in transit. The gas tank had been negligently installed by Rowland Truck. Rowland Truck moved for a summary judgment claiming that Atwood’s act of lifting the gas tank was an independent intervening cause and the sole proximate cause of Atwood’s injuries. The trial court granted summary judgment in favor of Rowland Truck. Atwood appeals claiming that the issue of foreseeability of injury should have been submitted to a jury.

The court considered the uncontroverted deposition testimony of Atwood which reflects that he was driving a truck for the Sel-O-Rak Company along a desolate stretch of interstate highway when he heard a bang and discovered through his rear-view mirror that a fifty-gallon gas tank had broken loose and was dragging along the road leaking gas. He stopped the truck, but was unable to take it off the road because of a guard rail. He feared that driving on would cause a spark resulting in an explosion. There was approximately two hours of daylight left and he had no flares. His chief concern was to get the tank off the road because it was a safety hazard. He did not know how much the tank weighed. He did not attempt to flag passing vehicles because he thought he could handle the situation. Atwood, in fact, lifted the fifty-gallon tank back on the truck, but in doing so injured his back.

The court in Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980), sets forth a three-part test for determining whether the harm that occurs is within the scope of the risk created by the defendant’s conduct: (1) whether the legislature specified the type of harm for which a tort-fea-sor is liable, (2) whether the particular defendant had actual knowledge that the same type of harm has resulted in the past from the same type of negligent conduct, and (3) whether the type of harm has so frequently resulted from the same type of negligence that, in the field of human experience, the same type of result may be expected again. The harm suffered by Atwood could fall within category three of the Gibson test. Without departing from the field of human experience, Rowland Truck might have, reasonably anticipated that some person would be injured as a result of the negligent installation of the gas tank. The proper test in determining foreseeability is not whether the initial tort-feasor is able to foresee the exact nature or extent of the injuries or precise manner in which the injuries occur. Rather, all that is necessary in order for liability to arise is that the tort-feasor be able to foresee that some injury would likely result in some manner as a consequence of his negligent act. Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA 1981). I find inapposite those cases cited by appellee involving the foreseeability of criminal conduct where the harm that occurred was not within the scope of the risk created by the defendant’s conduct. See Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980) (assault not foreseeable consequence of failure to properly maintain water fountain); Guice v. Enfinger, 389 So.2d 270 (Fla. 1st DCA 1980) (suicide not probable consequence of failure to remove belt).

The question of whether an intervening cause is foreseeable is for the trier of fact. Gibson v. Avis, supra. Where reasonable men might differ, the determination of foreseeability rests with the jury. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977). Only where reasonable men cannot differ as to whether the harm was foreseeable, may the question of foreseeability be determined as a matter of law. See Nance v. James Archer Smith Hospital, Inc., 329 So.2d 377 (Fla. 3d DCA 1976), cert. denied, 339 So.2d 1171 (Fla.1976); Kwoka v. Campbell, 296 So.2d 629 (Fla. 3d DCA 1974), cert. denied, 304 So.2d 450 (Fla.1974).

Because I think reasonable men could differ as to whether it was within the scope of risk that a negligently installed gas tank would fall on the highway and that an individual attempt to clear the highway of such dangerous obstruction by lifting the tank and suffer injury, I would reverse the summary judgment.

      . For the purpose of argument in the summary judgment hearing, counsel stipulated that the negligence of Rowland Truck in installing the gas tank would not be an issue.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    George C. SCOTT, Appellant, v. SUN BANK OF VOLUSIA COUNTY, formerly known as Exchange Bank at Holly Hill, a Florida corporation, Appellee.
    No. 80-1230.
    District Court of Appeal of Florida, Fifth District.
    Dec. 2, 1981.
    Rehearing Denied Jan. 12, 1982.

      Theodore F. Zentner of Becks, Becks & Wickersham, Daytona Beach, for appellant.
    Harold C. Hubka of Black, Crotty, Sims & Hubka, Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant George C. Scott appeals from an order dismissing with prejudice his third amended complaint.

SP&W, Inc. performed engineering services for D & B Cattle Company and as payment accepted a promissory note in the amount of $191,747 which was secured by a mortgage on D & B’s land. SP&W assigned the mortgage to appellee, Sun Bank, as collateral for a loan.

Appellant, a stockholder in SP&W, sold his stock for redemption to SP&W. SP&W gave appellant a note for $90,771 and secured it by assigning its remaining interest in the D & B mortgage. Because of the prior assignment to Sun Bank, the assignment could not go into effect until SP&W had fully repaid Sun Bank. SP&W by letter informed Sun Bank of the subsequent assignment and requested that the bank release the mortgage to appellant when the loan was fully repaid. Sun Bank, through its president, accepted the assignment, responding:

The undersigned bank, consents and agrees to assign the mortgage and note described herein to George C. Scott, once said bank has been paid in full for the debt which it holds said assignment of mortgage for.

On March 3, 1975, SP&W discharged its debt to Sun Bank. However, the bank failed to assign the mortgage to appellant as agreed. SP&W continued to collect all payments on the mortgage until August 17, 1978, when the D & B mortgage was satisfied. Appellant alleged that SP&W was in default to him on March 3, 1975, and further defaulted by failing to make any subsequent payments.

Appellant sued in four counts: 1) breach of a third party beneficiary contract, 2) breach of contract of novation; 3) negligence, and 4) promissory estoppel. Counts I and II which both alleged a contractually based cause of action arising from SP&W’s letter to Sun Bank were dismissed with prejudice on the ground that consideration was lacking. Appellant contends that SP&W’s agreement to release the bank from its obligation of re-assigning the note and mortgage to SP&W was sufficient to bind the bank. In Greenfield v. Millman, 111 So.2d 480 (Fla. 3d DCA 1959), the court quoted the applicable rule from Restatement (First), Contracts § 84:

Consideration is not insufficient because of the fact
* * * * * *
(c) That the party giving the consideration is then bound by a duty owed to the promisor or to the public, or by any duty imposed by the law of torts or crimes, to render some performance similar to that given or promised if the act or forebearance given or promised as consideration differs in anyway from what was previously due.

Ill So.2d at 482.

The court also noted Professor Willi-ston’s pronouncement that the difference between two promises, “however trifling, is enough to make new performance detrimental or the new promise a promise of something detrimental.” Id. Here SP&W’s relinquishment of its right to receive the mortgage from Sun Bank when the bank no longer needed it as collateral, constituted consideration for Sun Bank’s promise to deliver the mortgage to appellant (something it was not previously obligated to do). The fact that Sun p Bank explicitly assented to the relinquishment and its new obligation to deliver the mortgage to appellant satisfies the requirement that the consideration be bargained for. See 17 Am.Jur.2d Contracts § 92.

Since consideration existed for Sun Bank’s promise, the trial court erred in dismissing counts I and II of appellant’s third amended complaint.

Counts III and IV of appellant’s third amended complaint were dismissed by the trial court apparently because of appellant’s failure to allege facts establishing a duty owed to him by Sun Bank.

Appellant alleged in count III that Sun Bank, by its letter, agreed to act as agent for SP&W, Inc. and in so doing incurred a legal duty to appellant to use reasonable care in the performance of its duties. Count IV alleged that Sun Bank incurred a duty toward appellant by its promise and that appellant, in reliance on this promise, refrained from protecting his interests to the extent that he otherwise would have.

An agent is liable to third persons for damages resulting from a violation of a duty which the agent owes to the third person, and it does not matter whether that violation is one of malfeasance, misfeasance, or nonfeasance. 2 Fla.Jur.2d Agency & Employment § 83. See, e.g., Adkins v. Chicago, Rock Island & Pacific Railroad Co., 2 Ill.App.3d 906, 274 N.E.2d 507 (1971). The existence of an agency relationship, however, is ordinarily a question to be determined by the jury in accordance with the evidence adduced at trial. Amerven, Inc. v. Abbadie, 238 So.2d 321 (Fla. 3d DCA 1970); Financial Fire & Cas. Co. v. Southmost Veg. Coop Ass’n., 212 So.2d 69 (Fla. 3d DCA 1968). Therefore, the trial court’s action in dismissing counts III and IV of appellant’s third amended complaint was error.

REVERSED and REMANDED.

SHARP and COWART, JJ., concur.

      . This section provides that:
      Nothing is consideration for a contract that is not accepted or regarded as such by both parties. The mere presence of some incident to a contract which might under certain circumstances be upheld as a consideration for a promise does not necessarily make it the consideration for the promise in that contract; to give it that effect, it must have been offered by one party and accepted by the other as an element of the contract, (emphasis added)


author: CAMPBELL, Judge.

text:
    UNITED TELEPHONE COMPANY OF FLORIDA, Appellant, v. Sam J. COLDING, as Property Appraiser of Collier County, Florida, and Harry L. Coe, Jr., as Executive Director of the Department of Revenue, State of Florida, Appellees.
    No. 81-872.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    Rehearing Denied Jan. 12, 1982.
    Brooks P. Hoyt of Holland & Knight, Tampa, for appellant.
    Archie M. Odom, Punta Gorda, for appel-lee Colding.
    Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellee Dept, of Revenue.
   CAMPBELL, Judge.

This appeal is taken from a final judgment rendered against appellant United Telephone Company of Florida, in its action for declaratory judgment which sought to have declared invalid an attempted assessment of additional tangible personal property taxes. We reverse.

Appéllant filed tangible personal property tax returns with the property appraiser of Collier County, Florida, for 1975 and 1976. Each return reflected a total net operating personal property valuation and a lower net taxable value. The property appraiser accepted the returns and certified the tax rolls for each year to the Florida Department of Revenue and the tax collector of Collier County for collection of the taxes based on the lower net taxable value. Tax notices based on the certified returns were sent to appellant and timely paid.

In December of 1977, the property appraiser of Collier County sent appellant certificates for correction for the 1975 and 1976 tax rolls which revalued the assessed property and increased the taxes for which appellant would be liable for 1975 and 1976, and levied a fifteen percent penalty. The certificates for correction stated that they were directed to appellant pursuant to sections 193.072 and 193.092, Florida Statutes (1977). As a result of the increased valuation and tax assessment brought about by the certificates for correction, appellant filed its action for declaratory judgment. Appellee Property Appraiser of Collier County testified that the corrected assessments were not based on any additional properties being assessed which had been omitted from appellant’s tax returns. In fact, he testified that in preparing the corrections he worked solely from the figures supplied by appellant on the returns which had been accepted. He stated that he incorrectly based his assessment on the net taxable value listed on appellant’s returns, rather than the net operating personal property valuation which was also listed on the returns.

Section 193.092, relied upon by the property appraiser, is not a basis for the correction of the tax returns as accepted and certified by him. That section is available to assess property that has “escaped taxation” and no property was omitted from appellant’s returns. It is the valuation for tax purposes which the tax appraiser questions. In Okeelanta Sugar Refinery, Inc. v. Maxwell, 183 So.2d 567, 568 (Fla. 4th DCA 1966), the court held:

To “escape taxation” means to get free of tax, to avoid taxation, to be missed from being taxed, or to be forgotten for tax purposes. Once the Tax Assessor has certified the tax roll and the tax levied thereon paid on particular described property, said property cannot again be taxed for that particular year.

In Markham v. Friedland, 245 So.2d 645 (Fla. 4th DCA 1971), the court held that once the tax roll has been certified and the tax levied thereon paid, the property upon which taxes have been paid cannot again be taxed for that year even though the tax appraiser has mistakenly, inadvertently or negligently assessed the property for taxation. Though the trial court’s final judgment relied on section 193.073, rather than section 193.092, that section does not validate the attempted corrected assessment. We do not construe section 193.073 to allow correction of erroneous returns after the tax rolls have been certified and the taxes paid.

REVERSED and REMANDED.

DANAHY, A.C.J., and SCHOONOVER, J., concur.


author: SCHOONOVER, Judge.

text:
    Cecil A. ZIMMER and Florida Courier Corporation, Appellants, v. PONY EXPRESS COURIER CORPORATION OF FLORIDA, Appellee.
    No. 81-904.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    Rehearing Denied Jan. 26, 1982.

      Edward 0. Savitz of Allen, Dell, Frank & Trinkle, Tampa for appellants.
    Stanley H. Eleff of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellee.
   SCHOONOVER, Judge.

The appellants, defendants below, have filed an interlocutory appeal challenging the propriety of entering a temporary injunction restraining them from competing with the appellee, plaintiff below. We hold that the covenant not to compete, which is the subject matter of this action, expired before Mr. Zimmer resigned his position with the appellee on December 31, 1980, and therefore, reverse the lower court.

Cecil A. Zimmer, one of the appellants, was employed by the appellee’s predecessor in 1962. During the course of his employment he signed many employment contracts. The one in question was entered into on July 1, 1974. The contract was for a period of two years. It gave the employer an option to extend the term from year to year, by giving written notice to the employer prior to the end of the original term.

Paragraph 5 of the contract contained a covenant not to compete which precluded the employee from engaging in a like or similar business for two years after the termination of his employment. It also prohibited him from soliciting the sale of products or services of a competing business to any concern which was a customer of the appellee during the period of the employee’s employment “hereunder.” (Emphasis supplied.)

Paragraph 7 provided that the covenants of the employee set forth in paragraphs 4, 5, and 6 of the contract were to be construed as separate and independent covenants, and were to survive the termination of the employee’s employment “hereunder (Emphasis supplied.)

Appellant Zimmer resigned his position with the appellee, and, after forming the Florida Courier Corporation (the other appellant), began competing with the appel-lee.

Appellants contend that the contract was terminated by the terms of the agreement itself and by the mutual agreement of the parties at the end of its original two year term, and the covenant not to compete expired two years thereafter.

The appellee contends that the employment contract continued until Mr. Zimmer resigned, and accordingly, he had agreed not to compete for two years thereafter. The appellee argues further that even if the contract expired, the covenant survived it and was enforceable for two years after the appellant left his employment. Appellee contends this is correct even if the employment was not pursuant to the written contract.

We accept the appellants’ contention. An examination of the contract leads to the conclusion that the covenant prohibited competition during, and for two years after, the termination of the employee’s employment under the contract, and not for two years after termination of any employment.

The appellee asserts that the contract remained in effect because it provided that the employee must be given thirty days prior notice before the agreement expired, even after the initial two year term. However, the contract provided that said provision did not come into existence unless the employer first exercised its option to renew the contract at the expiration of the first term. The employer has agreed that it did not exercise this option.

At the conclusion of the original two year term, the employee informed the then president of the appellee that he would not sign a new agreement unless certain changes were made and additional protection given to him. The president informed him that the company’s policy was such that he really did not want to have an employment contract, and that the only ones still in existence were those that had been executed before he became president. Based upon this evidence, the contract had expired. Where a person enters into the service of another for a definite period of time and then continues in the employment after the expiration of that period without a new contract, a presumption arises that the employment is continued on the terms of the original contract. However, such a presumption may be rebutted, and it was in this case. Sultan v. Jade Winds Construction Corp., 277 So.2d 574 (Fla.3d DCA 1973).

Having determined that the contract entered into by the parties had expired in 1976, the appellee’s contention that the covenant contained in the agreement survived and restricted appellant Mr. Zimmer for two years after he left his subsequent employment must also be considered. The ap-pellee asserts that the Fourth District Court of Appeal in the case of Tomasello, Inc. v. de los Santos, 394 So.2d 1069 (Fla. 4th DCA 1981), has decided this question. However, a review of that case indicates that the employee therein agreed to refrain from competing against the employer during his employment. The covenant in this case clearly refers to services for which the appellant was employed under the contract. All three of the paragraphs of the contract which survived by operation of paragraph 7 referred to services “hereunder.” If the parties had intended to have the covenant apply to not only the employment under the contract, but to any other employment, they could have easily done so. By choosing to refer to the employee’s employment “hereunder,” they are bound by that language.

Contracts prohibiting an employee from engaging in a competing business, being in the nature of a contract in restraint of trade and personal liberty, will not be construed to extend beyond their proper import or further than the language of the contract absolutely requires. Storz Broadcasting Co. v. Courtney, 178 So.2d 40 (Fla.3d DCA 1965).

We accordingly hold that appellant Mr. Zimmer was employed by the appellee, Pony Express Courier Corporation of Florida, until December 31, 1980, but said employment was only under the 1974 contract until 1976, and that the covenant not to compete, being limited to prohibiting competition under the contract only, expired two years thereafter.

We accordingly reverse the lower court’s temporary injunction and remand for further proceedings consistent with this opinion.

OTT, A.C.J., and CAMPBELL, J., concur.

      . Paragraph 4 restricts the employee’s activities during his employment “hereunder.”

      . Paragraph 6 requires confidentiality of information acquired during and/or as a consequence of his employment “hereunder.”


author: GRIMES, Acting Chief Judge.

text:
    LARGO HOSPITAL OWNERS, LTD., Appellant, v. David GORMAN, Trustee in Bankruptcy for International Glass and Manufacturing Co., Inc., Appellee.
    No. 81-1410.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1981.
    Rehearing Denied Jan. 8, 1982.

      John W. Puffer, III, and Mark P. Buell of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellant.
    Walter D. Logan, St. Petersburg, for ap-pellee.
   GRIMES, Acting Chief Judge.

This is an appeal from a nonfinal order requiring a defendant to produce an out-of-state resident for deposition in aid of execution. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(4).

International Glass and Manufacturing Company, Inc., foreclosed a mechanic’s lien against Largo Hospital Owners, Ltd., a Florida limited partnership, and obtained a judgment against a surety company for $96,550.59. It then obtained a judgment of $35,000.00 for attorney’s fees and costs against Largo. In the meantime, however, Largo was dissolved, and the latter judgment remains unpaid.

In aid of execution, International Glass noticed the taking of the deposition in Tampa of the designated representative of Largo having knowledge of the financial aspects of the dissolved limited partnership. Largo moved for a protective order, asserting, among other things, that there were no representatives of the corporate general partner in the area and that none of the former limited partners who resided in the area had indicated that they would voluntarily appear. Largo suggested that the most appropriate person to testify regarding the matters described in the notice of deposition was Leon Hamlin, president of the corporate general partner who resides in Santa Monica, California. It offered to make him available for his deposition in California. The court denied Largo’s motion for a protective order and required Hamlin to be made available for deposition in Pinellas County.

Largo contends that since it never sought affirmative relief in the suit, the court could not require its representative to travel to Florida to give a deposition. In Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082, 1084 (Fla. 2d DCA 1977), this court said:

Absent extraordinary circumstances not shown to exist in this record, the deposition of a nonresident officer of a nonresident corporate defendant which is not seeking affirmative relief should be taken at the deponent’s place of residence.

The question before us, then, is whether the record in this case reflects sufficient extraordinary circumstances to justify the court’s exercise of its discretion in ordering Mr. Hamlin to come to Florida for his deposition. We believe that it does.

One significant factor is that, unlike the ordinary case involving prejudgment depositions, International Glass’s claim has already been determined to be valid. Thus, the deposition is being sought in aid of execution on the judgment. Yet, if this were the only factor, our decision might conflict with Godshall v. Hessen, 227 So.2d 506 (Fla. 3d DCA 1969), cert. denied, 237 So.2d 530 (Fla.1970), which involved the deposition of a nonresident director of a dissolved corporation in aid of execution. Here, however, Largo has had substantial contacts with Florida. It undertook to build a hospital, albeit unsuccessfully, and then dissolved, leaving unpaid International Glass’s claim for materials furnished in the construction. Several of the limited partners were Florida residents, and Largo, itself, was chartered under the laws of Florida. Even the corporate general partner appears to be a Florida corporation. It just happens that the man who knows most about Largo’s finances lives in California. Under these circumstances, it seems fair that International Glass, which only seeks to collect what a court has already determined to be owing, not be required to incur the additional expense of travelling to California for the deposition.

The cross-appeal from an order limiting the scope of certain interrogatories is without merit.

AFFIRMED.

OTT and DANAHY, JJ., concur.


author: RYDER, Judge.

text:
    MICHIGAN NATIONAL BANK-MICHIANA, a national banking association, Appellant, v. Eldon C. BAUMGART and his wife, Nola M. Baumgart, Appellees.
    No. 81-1347.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 1981.
    Rehearing Denied Jan. 8, 1982.
    Rex P. Cowan of Kalogridis & Casey, Winter Haven, for appellant.
    Robert A. Young of Trakas & Young, P.A. and R. Scott Bunn of Straughn, Sharit, Bunn & Chilton, P.A., Winter Haven, for appellees.
   RYDER, Judge.

Appellant claims the trial court erred in denying its motion to dismiss pursuant to the venue provision under 12 U.S.C. § 94 (1970). We agree and reverse.

While residents of Michigan, appellees obtained an automobile loan from appellant, which was located in the state of Michigan, pledging the automobile as security for the loan. As a result of continuing repayment deficiencies, appellant attempted to make contact with appellees only to be informed that appellees had moved to Florida. Following numerous attempts to contact appel-lees concerning the arrearage on their account, appellant sent them a registered letter reminding appellees of the delinquent status of their loan and advising them that appellant would “expect all future payments within ten days of their due date.”

In March 1980, appellant’s payment records reflected appellees’ consumer loan account as continuing one month in arrears. Thereafter, appellant requested that Falcon International, located in Florida, recover from appellees the automobile which serves as appellant’s security.

Following repossession of their automobile, appellees filed suit for wrongful deprivation of the property. Appellant moved to transfer the case to Michigan, under authority of 12 U.S.C. § 94, which provides in part:

Actions and proceedings against any [national banking] association under this chapter may be had ... in any State, County, or Municipal Court in the County or City in which said association is located having jurisdiction in similar cases.

The lower court denied the motion, finding that the acts of appellant, acting through its agent, were “sufficient to shock the community unwarranted by either commercial necessity or legal authority.” Allegedly, the repossession occurred when the appellant’s agent, Falcon International, trespassed after warning on the private property of appellees and produced a fraudulent document purporting to be a court order, thereby inducing appellees’ consent for removal of their vehicle.

While this court does not condone appellant’s alleged acts through its agent, we feel we are bound by the Florida Supreme Court decision in Landmark Bank of West Broward, N.A. v. Giroux, 358 So.2d 180 (Fla.1978), wherein it is stated that repossession of transitory loan collateral has specifically been held not to constitute a venue waiver. Also, the supreme court cited with approval the Fifth Circuit Court of Appeals’ decision that held the commission of a tort is insufficient to constitute a waiver. See Northside Iron and Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798 (5th Cir. 1973).

Based on the supreme court decision in Giroux, we reverse the trial court’s order and remand this case for further proceedings consistent with this opinion.

BOARDMAN, A.C.J., and DANAHY, J., concur.


author: DANIEL S. PEARSON, Judge.

text:
    Barnett GUTHARTZ, Appellant, v. Sally LEWIS, et al., Appellees.
    Nos. 79-1310 and 79-2341 to 79-2344.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Feb. 8, 1982.

      Joe N. Unger, Miami, Sibley, Giblin, Le-venson & Glaser and Marion E. Sibley, Miami Beach, for appellant.
    John A. Ritter, Steel, Hector & Davis and Joseph P. Klock, Jr., Morgan, Lewis & Bockius and Paul J. Levine, Miami, for ap-pellees.
    • Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Barnett Guthartz, the owner of a 238-unit apartment complex called Bay Terrace Apartments, was sued by sixty of his tenants. As third-party beneficiaries of a regulatory agreement between Guthartz and the FHA, the insurer of the mortgage on the buildings, the tenants claimed that Gu-thartz had collected from them rents and security deposits in excess of the maximum allowed under the FHA rent schedule, and sought to recover these excess payments, punitive damages, and attorneys’ fees. The trial court, in a non-jury trial, found Gu-thartz liable and appointed a special master who determined that Guthartz had overcharged the tenants $86,526.50, which, with interest, made Guthartz responsible to restore a total of $105,828.12 to the tenants. The court approved the amount of this award, and subsequently ordered that Gu-thartz pay punitive damages of $1,000,000, the tenants’ attorneys’ fees in the amount of $200,800, and the special master’s fee of $17,000. Guthartz appeals the awards of punitive damages, attorneys’ fees, and the special master’s fee. Finding no abuse of discretion in the award of the special master’s fee, Anderson v. City of North Miami, 99 So.2d 861 (Fla.1958), we affirm that award and move on to address the issues of punitive damages and attorneys’ fees.

A.

Punitive Damages

Guthartz contends that the punitive damage award must be set aside because (1) the tenants’ action to recover the excess payments is an action formerly cognizable in equity in which punitive damages may not be awarded; (2) even assuming the action to be one at law, punitive damages are not recoverable in an action based on breach of contract except where the breach constitutes an independent tort which is pleaded and proved; (3) even assuming a sufficient independent tort is pleaded and proved, there must be an award of compensatory or at least nominal damages on account of that tort to support an award of punitive damages.

Since we agree that the tenants failed to allege or prove a tort committed by Guthartz which was distinguishable from or independent of his breach of contract, we reverse the award of punitive damages on that basis and pretermit extended discussion of Guthartz’s other more questionable and less persuasive contentions.

It is the well-established rule in Florida that punitive damages are not recoverable for breach of contract, irrespective of the motive of the defendant. Only where the acts constituting a breach of contract also amount to a cause of action in tort may there be a recovery of punitive damages upon, of course, proper allegations and proof. Masciarelli v. Maco Supply Corp., 224 So.2d 329 (Fla.1969); Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla.1957); Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229 (Fla.3d DCA 1981) and cases cited therein; Hanft v. Southern Bell Telephone & Telegraph Company, 402 So.2d 453 (Fla.3d DCA 1981); Bill Branch Chevrolet, Inc. v. Redmond, 378 So.2d 319 (Fla.2d DCA 1980); Greer v. Williams, 375 So.2d 333 (Fla.3d DCA 1979); Overseas Equipment Co., Inc. v. Aceros Arquitectonicos, 374 So.2d 537 (Fla.3d DCA 1979); Henry Morrison Flagler Museum v. Lee, 268 So.2d 434 (Fla.4th DCA 1972). See Johnson v. Lasher Milling Company, Inc., 379 So.2d 1048 (Fla.lst DCA 1980). Compare Associated Heavy Equipment Schools, Inc. v. Masiello, 219 So.2d 465 (Fla.3d DCA 1969).

As the court below found, Guthartz wrongfully overcharged the tenants, adamantly refused to return the rents and deposits, and attempted to conceal this wrongdoing by making false statements to the FHA. But no matter how unjustified was Guthartz’s conduct, in the final analysis it constituted only a breach of contract; and no matter how unyielding and oppressive that breach may have been, an independent tort was neither alleged nor proved. We are bound by a long-standing and unbroken line of authority to reverse the punitive damage award.

B.

Attorneys’ Fees

The trial court awarded the tenants attorneys’ fees under the authority of Sections 83.48 and 83.49(3)(c), Florida Statutes (1977), They provide;

“§ 83.48 — Attorney’s Fees — If a rental agreement contains a provision allowing attorney’s fees to the landlord when he is required to take any action to enforce the rental agreement, the court may allow reasonable attorney’s fees to the tenant when he prevails in any action with respect to the rental agreement.” (emphasis supplied).
“§ 83.49(3)(c) — If either party institutes an action in court of competent jurisdiction to adjudicate his right to the security deposit, the prevailing party is entitled to receive his court costs plus a reasonable fee for his attorney.. .. ” (emphasis supplied).

First, with respect to Section 83.48, Gu-thartz admits that the rental agreements contain a clause “allowing attorney’s fees to the landlord,” but argues that Section 83.48 is inapplicable, because the tenants’ action was not, as required, “with respect to the rental agreement,” but instead was based on the FHA regulatory agreement of which the tenants were third-party beneficiaries, but which was no part of the rental agreements.

It is apodictic that an award of attorneys’ fees is in derogation of the common law, and statutes authorizing such fees are to be strictly construed. Roberts v. Carter, 350 So.2d 78 (Fla.1977); Kittel v. Kittel, 210 So.2d 1 (Fla.1968); Sheridan v. Greenberg, 391 So.2d 234 (Fla.3d DCA 1981); Jackson v. Hatch, 288 So.2d 564 (Fla.2d DCA 1974). Applying that rule of strict construction to the present case, and finding that the tenants’ act was not one “with respect to the rental agreement,” we must agree that the attorneys’ fee award was not authorized by Section 83.48, Florida Statutes (1977). Cf., e.g., Mershon v. Buckles-Thompson, Inc., 383 So.2d 280 (Fla. 5th DCA 1980); Houdaille-Duval-Wright Company v. Charldon Construction Company, 266 So.2d 106 (Fla.3d DCA 1972); Bieley v. Jennings Construction Corporation, 212 So.2d 809 (Fla.3d DCA 1968) (holding that a statute providing for attorneys’ fees upon foreclosure of a lien does not authorize attorneys’ fees unless the lien itself, not merely the right to recover damages, is established).

Similarly, Section 83.49(3)(c) provides no basis for an award of fees. The present litigation in respect to security deposits dealt only with the question of whether a security deposit equal to two months’ rent could be required by the landlord under the FHA regulations. The issue in this litigation was not the tenants’ right to the return of their security deposits upon vacating the premises, which, as is so plainly seen by Sections 83.49(3)(a) and (b), is the underlying litigation contemplated by Section 83.-49(3)(c), and the sine qua non of a fee award.

Finally, although the trial court’s judgment for attorneys’ fees recites in a footnote that

“. . . in the view of this Court, many of the positions taken by the defendant demonstrate ‘a complete absence of a jus-ticiable issue of either law or fact . . . ’ as that standard is employed by Section 57.-105, Florida Statutes (Supp.1978), independently sufficient to support the award contained herein.”

the attorneys’ fee award cannot be sustained under Section 57.105. First, even if, arguendo, we treat the plaintiffs’ supplemental complaint as the commencement of the action, that pleading was filed five months prior to the effective date of Section 57.105, rendering the statute inapplicable to this action. Porteous v. Fowler, 394 So.2d 154 (Fla. 4th DCA 1981). Second, none of the several applications and motions for attorneys’ fees filed by the plaintiffs’ attorneys during the course of this protracted litigation contained a claim for attorneys’ fees under Section 57.105, a necessary predicate for any award under the statute. Hartman Services, Inc. v. Southeast First National Bank of Miami, 399 So.2d 404 (Fla.3d DCA 1981); Autorico, Inc. v. Government Employees Insurance Company, 398 So.2d 485 (Fla.3d DCA 1981).

Accordingly, we reverse so much of the judgments which awarded punitive damages and attorneys’ fees, and affirm that part of the judgment awarding the special master’s fees.

Affirmed in part; reversed in part.

      . Title 12 U.S.C. Section 1747c provides:
      “The Secretary shall require that the rents for the dwellings in any project insured under this subchapter shall be established in accordance with a rent schedule approved by the Secretary, and that the investor shall not charge or collect, rents for any dwellings in the project in excess of the appropriate rents therefor as shown in the latest rent schedule approved pursuant to this section....”

      . Guthartz relies on Donner v. Donner, 346 So.2d 1069 (Fla.3d DCA 1977). While the special master’s fee in the present case exceeds the hourly rate in Donner, we do not read that case as establishing a litmus test for the award of special masters’ fees.

      . It is true that a court trying a matter formerly cognizable in equity may not award punitive damages. Hoppe v. Hoppe, 370 So.2d 374 (Fla.4th DCA 1978); Santos v. Bogh, 298 So.2d 460 (Fla.3d DCA 1974); Lee v. Watsco, Inc., 263 So.2d 241 (Fla.3d DCA 1972); R.C. # 17 Corp. v. Korenblit, 207 So.2d 296 (Fla.3d DCA 1968); Orkin Exterminating Company of South Florida, Inc. v. Truly Nolen, Inc., 117 So.2d 419 (Fla.3d DCA 1960). However, an action for restitution, the present equivalent of an action for money had and received, Central Bank & Trust Company v. General Finance Corporation, 297 F.2d 126 (5th Cir. 1961), is rooted in the former action for assumpsit. See Brevard County Building & Loan Association v. Sumrail, 101 Fla. 273, 133 So. 888 (1931). Assump-sit, originating as a right of action for the non-performance of an agreement based on a tort theory, ultimately became the ex contractu action for the breach of an implied or quasi-contract. C. Crandell, Florida Common Law Practice § 145 at 208-09 (1928). We assume, but need not decide, that the action of assump-sit and, by succession, restitution, being “a legal remedy to enforce an equity,” C. Crandell, Florida Common Law Practice § 146 at 149 (Supp.1940), or “a legal action, ... equitable in nature,” First State Bank of Fort Meade v. Singletary, 124 Fla. 770, 169 So. 407 (1936), would support a punitive damage award, if otherwise allowable.

      .Because the only compensatory damages awarded to the tenants were those arising from the breach of contract, Guthartz contends that there can be no award of punitive damages. Prior to Lassiter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977), it was uniformly agreed that an award of actual damages was a necessary predicate to an award of punitive damages. In Lassiter, the court held that there need not be a reasonable relationship between actual damages and punitive damages, and explained that the former requirement “unless actual damages are shown,” see McLain v. Pensacola Coach Corporation, 152 Fla. 876, 13 So.2d 221 (1943), means only “unless liability is shown on the underlying cause of action,” Lassiter, supra, 349 So.2d at 622. Some courts have read Lassiter to mean that punitive damages are recoverable merely on a showing of liability without an award of nominal damages, see, e.g., Nales v. State Farm Mutual Automobile Insurance Com

        pany, 398 So.2d 455 (Fla.2d DCA 1981); Eglin Federal Credit Union v. Curfman, 386 So.2d 860 (Fla.lst DCA 1980); others have insisted that Lassiter did not obviate the need for at least a nominal damage award, see, e.g., Tennant v. Vazquez, 389 So.2d 1183 (Fla.2d DCA 1980); American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452 (Fla.5th DCA 1980); Sonson v. Nelson, 357 So.2d 747 (Fla.3d DCA 1978). Since an award of nominal damages is the functional equivalent of a finding of liability without actual damages, it would appear that where liability is established, there should be no need to insist upon the formality of nominal damages. But the problem in the present case is the absence of tort liability, not the absence of a perfunctory award thereon.

      . In 1977, Guthartz was convicted in the United States District Court for the Southern District of Florida for violating Title 18 U.S.C. Section 1001.

      . For an example of the view that punitive damages should be recoverable for a flagrant breach of contract irrespective of an independent tort, see Ward v. Taggart, 51 Cal.2d 736, 336 P.2d 534 (1954), where Justice Traynor, speaking for the court, stated: “Courts award exemplary damages to discourage oppression, fraud, or malice by punishing the wrongdoer [citations omitted]. Such damages are appropriate in cases like the present one [contractual fraud], where restitution would have little or no deterrent effect, for wrongdoers would run no risk of liability to their victims beyond that of returning what they wrongfully obtained.” See also Sullivan, Punitive Damages in the Law of Contract: The Reality and the Illusion of Legal Change, 61 U.Minn.L.Rev. 207 (1977). Any reexamination of the continued efficacy of and justification for the rule requiring an independent tort as a basis for punitive damages in a breach of contract action cannot come from this court. Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla.3d DCA 1981).

      . The trial court’s pertinent finding was that the defendant “charged and received from Plaintiffs rents in excess of the rate approved by the Federal Housing Commissioner, contrary to federal law and the Regulatory Agreement.”

      . Here the trial court’s pertinent finding was that the defendant “demanded and received from Plaintiffs security deposits in excess of those approved by the Federal Housing Commissioner, contrary to federal law and the Regulatory Agreement.”

      . We note that implicit in these very words is the corollary, otherwise shown by our holding today, see Parkway General Hospital, Inc. v. Stern, 400 So.2d 166 (Fla.3d DCA 1981), and by the trial court’s denial of plaintiffs’ motion for partial summary judgment, City of Deerfield Beach v. Oliver-Hoffman Corporation of Deerfield Beach, 396 So.2d 1187 (Fla. 4th DCA 1981); Denes and Denes & Associates, Inc. v. Walter E. Heller & Co. of Florida, Inc., 396 So.2d 760 (Fla.3d DCA 1981), that at least some of the positions taken by the defendant raised justiciable issues of either law or fact and were non-frivolous. But quite apart from that is the trial court’s recognition in the same judgment that there existed “novel and difficult legal issues,” which, in our view, is the antithesis of frivolity. Even if Section 57.105 were applicable, the statute’s “rigorous prerequisite,” see City of Deerfield Beach v. Oliver-Hoffman Corporation of Deerfield Beach, supra, of “a complete absence of a justiciable issue of law or fact” was simply not met here. Compare Executive Centers of America, Inc. v. Durability Seating & Interiors, Incorporated, 402 So.2d 24 (Fla.3d DCA 1981); Parkway General Hospital, Inc. v. Stern, supra; Hartman Services, Inc. v. Southeast First National Bank of Miami, supra; Sachs v. Hoglund, 397 So.2d 447 (Fla.3d DCA 1981); Denes and Denes & Associates, Inc. v. Walter E. Heller & Co. of Florida, Inc., supra, with T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla.3d DCA 1980). Obviously, we need not address whether under the circumstances of this case the defendant’s arguably frivolous defense to the tenants’ entitlement to the rent overpayments is so demonstrably separate from, for example, the clearly non-frivolous defense to punitive damages as to enable a trial court to make a partial award of attorneys’ fees under Section 57.105, Florida Statutes. See Hernandez v. Leiva, 391 So.2d 292 (Fla.3d DCA 1980).


text:
    ADULT WORLD, INC., d/b/a Strip World Topless Entertainment, Appellant, v. STATE of Florida, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 80-1465.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 21, 1982.

      H. Franklin Robbins, Jr., Orlando, for appellant.
    James N. Watson, Jr., Staff Atty., Dept, of Business Regulation, Tallahassee, for ap-pellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a final order of the Division of Alcoholic Beverages and Tobacco denying appellant’s application to transfer a beverage license from Wiley Pridgen to itself (Adult World, Inc.).

Wiley Pridgen, d/b/a Strip World Topless Entertainment, was served on December 10, 1979, with an “Official Notice” informing him that as the holder of Beverage License 58-1278, “administrative charges are being filed against your beverage license for assignation for prostitution.” On December 21, 1979, appellant applied for transfer of Pridgen’s license. Pridgen was shown on the application as the president and sole stockholder of appellant corporation.

On March 6, 1980, the Division denied appellant’s application for transfer on the ground that “administrative action is pending and undetermined against the subject license.” On March 17, 1980, Pridgen was served with a notice to show cause/administrative complaint. Appellant subsequently requested administrative review of the denial of its application for transfer. On October 7, 1980, a hearing officer entered a recommended order stating that the application for transfer be denied. Appellant filed exceptions, but the Division entered its final order denying the application.

The first question is whether the order is invalid because it fails to comply with rule 28.5.405(3), Florida Administrative Code. This rule provides that:

If a party files exceptions to a recommended order or submits proposed findings of fact to the Agency, the final order shall include an explicit ruling on each exception or proposed finding of fact as well as a brief statement of grounds for denying the exception or proposed finding of fact; provided however, an Agency is not required to make explicit rulings on subordinate, cumulative, immaterial or unnecessary proposed facts and such proposed facts may be rejected in the final order by simple statement that they are irrelevant or immaterial.

Here, appellant filed the following exceptions to the hearing officer’s recommended order:

2. The action described in the preceding paragraph is contrary to the provisions of Chavers v. Florida Real Estate Commission, 384 So.2d 963 (Fla. 1st DCA 1980); Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980); and the order entered in Foxies of Orlando, Inc., d/b/a Foxies Lounge, Petitioner v. State of Florida, Division of Alcoholic Beverages and Tobacco, Respondent, DO AH Case No. 80-932.
3. The action described in paragraph 1 above is erroneous because notwithstanding the fact that the “institution” of agency proceedings took place within the ninety (90) day period allowed the agency by section 120.-60(2), Florida Statutes, Petitioner’s application to transfer was denied on March 6,1980, prior to the institution of agency proceedings on March 17, 1980. (emphasis added)

The final order did not specifically deal with appellant’s exception as to whether the administrative action is contrary to Chavers v. Florida Real Estate Commission and Sheppard v. Board of Dentistry. The order stated:

Petitioner ... filed certain exceptions to the Recommended Order, a copy of which are attached hereto. Upon consideration of the exceptions it is determined that they are not relevant to the ultimate findings herein.

Appellant argues that the failure of the Division to explicitly rule upon the exceptions to the recommended order constitutes reversible error. The cases relied upon for this contention, such as Wong v. Career Service Commission, 371 So.2d 530 (Fla. 1st DCA 1979) and Stuckey’s of Eastman, Ga. v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), involved situations where an agency failed to rule explicitly on a party’s proposed findings of fact. See also Ehrenzeller v. Department of Health and Rehabilitative Services, 390 So.2d 181 (Fla. 2d DCA 1980). In such cases, the agency’s omission may impair the fairness and correctness of its action, Eh-renzeller, or may prevent judicial review of the matter. Stuckey’s. In Parekh v. Career Service Commission, 346 So.2d 145 (Fla. 1st DCA 1977), the court held that the agency’s failure to rule explicitly on petitioner’s proposed findings of fact did not under the circumstances impair the fairness of the proceedings or the correctness of the action. The court in Parekh relied on section 120.68(8), Florida Statutes (1979), which provides:

The court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.

In its brief, appellant does not suggest that the fairness or correctness of the proceedings may have been impaired by the Divisions’ failure to explicitly rule on its exceptions. Nowhere is it factually demonstrated that the exceptions were relevant. It is incumbent upon appellant to demonstrate that the Division’s conclusion that an exception is irrelevant is incorrect.

Appellant next contends that revocation or suspension proceedings had not been instituted against the license at the time its application for transfer was denied by the Division and it was therefore entitled as a matter of right to transfer of the license. Appellant’s position is based on the fact that the administrative complaint was not filed against Pridgen until March 17, 1980, while the Division denied the application for transfer on March 6,1980. The Division denied the application on the ground that “administrative action is pending and undetermined against the subject license.” However, we do not believe that the controlling question is whether agency proceedings had been instituted.

Section 561.32, as set out in footnote one, does not state that transfer of a license is automatic upon application. It was necessary that appellant establish that this was a bona fide sale, secure approval of its application, and show an absence of agency proceedings. Section 561.15 provides that “Licenses to corporations shall be issued only to corporations whose officers are of good moral character ...” Here the president and sole stockholder of appellant corporation was Pridgen, whose “good moral character” was being scrutinized by the Division. Neither the management nor ultimate ownership had changed, only the technical form. Indeed, Pridgen’s office in and ownership of appellant corporation made it necessary for the corporation to demonstrate that there was a bona fide sale of the business. Its failure to do so gave the Division sufficient reason to withhold transfer until determination of the agency proceedings.

We believe this decision is consistent with the public’s interest in seeing that the laws and regulations governing the operation of establishments dispensing alcoholic beverages are obeyed and not defeated by a transparent subterfuge. More is required than an owner changing hats to that of corporate president.

The Division’s order denying the application is AFFIRMED.

ORFINGER and SHARP, JJ., concur.

      . Section 561.32(1), Florida Statutes (1979), provides in relevant part:
      Licenses issued under the provisions of the Beverage Law shall not be transferable except as follows: When a licensee shall have made a bona fíde sale of the business which he is so licensed to conduct he may obtain a transfer of such license to the purchaser of said business, provided the application of the purchaser shall be approved by the division in accord with the same procedure provided for in ss. 561.17, 561.18, and 561.19, in the case of issuance of new licenses. However, no one shall be entitled as a matter of right to a transfer of a license when revocation or suspension proceedings have been instituted against a licensee, and transfer of license in any such case shall be within the discretion of the division, (emphasis added)


text:
    Opal DAVIS, Appellant, v. SUN FIRST NATIONAL BANK OF ORLANDO, a National Association, Appellee.
    No. 81-254.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 14, 1982.

      James M. Magee of Neduchal & Magee, Orlando, for appellant.
    Ashby L. Camp of Cooper & Rissman, P. A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Opal Davis, a bank teller who was the victim of a “hold-up,” sued the bank robber, charging intentional infliction of emotional distress and assault and battery. She also sued her employer, appellee Sun First National Bank of Orlando, charging negligence in the construction and operation of its bank in failing to provide adequate security. The bank filed a motion to dismiss the negligence count on the ground that: (1) appellant was injured during the scope and course of her employment and thus the action was barred by the provisions of the Florida Workers’ Compensation Act; (2) the complaint failed to allege a duty to protect her from the intervening acts of third persons; (3) the acts complained of lacked the requisite physical contact necessary to sustain an action for personal injury under a negligence theory; and (4) the complaint failed to allege ultimate facts showing causation. The motion to dismiss was granted with prejudice. We AFFIRM.

The first question we consider is whether an employee has a common law action for the alleged negligence of an employer causing an injury which was not an “injury arising out of the employment,” as defined in Florida Statute 440.02(18), and hence is not compensable under chapter 440, the Florida Workers’ Compensation Law.

Section 440.11(1), Florida Statutes (1979), provides for the exclusiveness of liability of an employer as follows:

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death, (emphasis added)

The term “injury” is defined as personal injury or death by accident arising out of and in the course of employment. § 440.-02(6), Fla.Stat. (1979). Thus, to be compen-sable under the act, the injury must not only arise out of and in the course of employment but must also be “by accident.”

Section 440.02(18), Florida Statutes (1979) defines “accident” as follows:

‘Accident’ means only an unexpected or unusual event or result, happening suddenly. A mental or nervous injury due to fright or excitement only . . . shall be deemed not to be an injury by accident arising out of the employment, (emphasis added)

Appellant argues that a mental or nervous injury is specifically excluded as an “injury” under the Workers’ Compensation Act, and therefore, there is no prohibition against her suing her employer under a theory of negligent infliction of nervous distress. We do not think it is necessary to consider whether this rather ingenious construction of the statute has merit. So far, Florida has not recognized the cause of action of negligent infliction of mental distress absent “impact.” We reject appellant’s claim that the act of the robber in handing her the “hold up” note constituted “physical impact.” See Steiner and Munach v. Williams, 334 So.2d 39 (Fla.3d DCA 1976) (wherein the court found that there was no physical impact in the receipt of a copy of an unexecuted claim for nonpayment of medical services); Saltmarsh v. Detroit Auto. Inter-Ins. Exchange, 344 So.2d 862 (Fla.3d DCA 1977) (wherein the court found there was no physical injury in the receipt of an unlawful cancellation of an insurance notice).

In the alternative, appellant contends that the trial court erred in dismissing her complaint without leave to amend to establish that her claim was not compen-sable under the Workers’ Compensation Act and hence that she had a common-law right to sue for negligence.

Florida Rule of Civil Procedure 1.190(a) provides that leave of court to amend pleadings shall be freely given when justice so requires. Here, however, the record fails to show that appellant sought leave of court to amend or that she moved for a rehearing requesting leave to amend. Thus, she is precluded from asserting this issue for the first time on appeal. See Johnson v. RCA Corp., 395 So.2d 1262, 1263 (Fla.3d DCA 1981); Hohenberg v. Kirstein, 349 So.2d 765 (Fla.3d DCA 1977).

Even if appellant had moved to amend, the trial court’s refusal to allow her to do so would not have been reversible error. If appellant alleged additional facts to show that her mental distress was not compensable under the Act, i.e., that she suffered no physical injury, then due to the “physical impact” rule, appellant would have been precluded from recovering under a common-law theory of negligence. On the other hand, if appellant alleged a physical impact or injury so as to recover under a negligence theory, then her claim would be barred by the exclusiveness of liability of the Workers’ Compensation Act as mental anguish resulting from a physical injury is compensable. As appellant is precluded from recovery under either set of facts, the deficiencies in the complaint could not have been cured by amendment.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . Appellant cites Quinlan v. Mott, 375 So.2d 589 (Fla. 5th DCA 1979), in support of her contention that she should have been granted leave to amend even in the absence of a request for leave to amend. Quinlan relied on Petterson v. Concrete Const., Inc., 202 So.2d 191 (Fla. 4th DCA 1967), quashed on other grounds, 216 So.2d 221 (Fla.1968), wherein the court held that although the trial judge correctly dismissed the complaint, the deficiencies could have been cured without any departure from the facts already alleged and the trial judge should have granted the plaintiffs leave to amend. Thus, while not specifically stating so, Quinlan appears to involve a denial of the plaintiffs’ motion for leave to amend.


author: PER CURIAM.

text:
    BABRAB, INC., d/b/a The Gemini Club and National Union Fire Insurance Company, Appellants, v. Pearl ALLEN, Appellee.
    No. 80-1366.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 28, 1982.

      Larry Klein, and Adams, Coogler, Watson & Smith, West Palm Beach, for appellants.
    Earl L. Maxwell, Jr., West Palm Beach, for appellee.
   PER CURIAM.

A tavern owner appeals the denial of his motion for a directed verdict in a suit filed against him by one bar patron who was attacked by another. We reverse.

There is no evidence whatever in the record that the attacker had ever before created a disturbance at or near this bar. Even on the evening in question, there was no suggestion of anticipated violence. The victim admitted that the attacker had made no threatening remarks prior to the attack on her which occurred, as she admitted, totally unexpectedly after she had departed the bar and was out in the parking lot en route to her automobile.

All this being so and without further discussion, we are of the opinion that the controlling law of this case is as stated in Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980); Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980) and Highlands Insurance Company v. Gilday, 398 So.2d 834 (Fla. 4th DCA 1981).

We note that the trial judge did not have the benefit of the last of these three cited cases at time of trial wherein Judge Dow-ney, speaking for the court, said:

The owner or operator of a hotel has a duty to exercise reasonable care for the protection of its patrons. However, such owner or operator is not an insurer of the safety of its patrons. Nor is the owner or operator liable for the conduct of another on his premises which causes injury to a business invitee unless the owner or operator has notice of the danger involved and an opportunity to protect against it. (citations omitted) Id. at 835.

The victim argues that the two bartenders, who had known the attacker since he was a child, had knowledge that the attacker “had a reputation as a troublemaker and a fighter.” However, as we have already noted there is absolutely no evidence in the record that he had ever made trouble at this or any other bar, and there was no warning that he would do so on this particular night.

Accordingly, we hold that the motion for directed verdict should have been granted and this cause is remanded for the entry of a final judgment in favor of the tavern owner in accordance herewith.

REVERSED AND REMANDED.

LETTS, C. J., and MOORE and HERSEY, JJ., concur.


text:
    Carolyn J. SCHEUTER, Appellant, v. Fred H. SCHEUTER, Jr., Appellee.
    No. 81-422.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.
    Rehearing Denied Jan. 12, 1982.
    Edward T. Wright, Belleair Bluffs, for appellant.
    John T. Cook, South Pasadena, for appel-lee.
   OTT, Judge.

In this dissolution proceeding the trial court entered a final judgment which, inter alia, awarded custody of two small children to their father, appellee, and ordered their mother, appellant, to make set contributions to their support.

There is nothing wrong with requiring a mother to support or help support her children when the evidence indicates she is capable of doing so. Here, however, the uncontroverted evidence clearly established that she is highly unstable, erratic, and irresponsible. As a result, she has been unable to hold employment and earned a total of $2,300 during the year 1980. Appellant is presently able to do little more than support herself. If and when that situation improves, the court below can always entertain a new application by the father for any necessary assistance in meeting the needs of the children.

That portion of the judgment requiring appellant to pay child support to appellee is VACATED. In all other respects, the judgment is AFFIRMED.

BOARDMAN, A.C.J., and RYDER, J., concur.


author: SCHEB, Chief Judge.

text:
    STATE of Florida, Appellant, v. Kathy PARENT, Appellee.
    No. 81-957.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.
    Rehearing Denied Jan. 13, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Samuel R. Mandelbaum and James S. Pur-dy, Asst. Attys. Gen., Tampa, for appellant.
    John Charles Coleman of Coleman & Coleman, Fort Myers, for appellee.
   SCHEB, Chief Judge.

The state challenges the trial court’s order dismissing an information on the ground that the delay between the alleged offense and the defendant’s arrest prejudiced her preparation of a defense. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(c)(1)(A).

On October 30, 1979, the automobile Kathy Parent was driving was involved in an accident in which Marvin H. Behrens, the driver of the other car, was killed. Patrol officers promptly conducted an initial investigation. The case then passed through the hands of various officers of the Lee County Sheriff’s Department Criminal Investigation Division for approximately two and one-half months, after which it was assigned to Sergeant George Mitar. Eight and one-half months later, Mitar discussed the case with an assistant state attorney who advised him that there was probable cause to arrest Ms. Parent. On September 28 Ms. Parent was arrested, and on October 3 the state filed an information charging her with vehicular homicide.

Ms. Parent filed a motion to dismiss the state’s information on the ground that the delay between the time of the accident and the date of her arrest was unreasonable and prejudiced the preparation of her defense. The court, after conducting an evidentiary hearing, found that sufficient information had been gathered to file an information by March 1980 at the latest and that the investigation after that date had been minimal and nonproductive. The court concluded that the delay had prejudiced the preparation of Ms. Parent’s defense, dismissed the information, and discharged her.

A delay by the state prior to the filing of an information can so adversely affect a defendant’s right to prepare a defense that it will deny him the fourteenth amendment’s guarantee of due process. Swan v. United States, 436 U.S. 958, 98 S.Ct. 3073, 57 L.Ed.2d 1123 (1978); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); State v. Bennett, 382 So.2d 811 (Fla. 2d DCA 1980); State v. Griffin, 347 So.2d 692 (Fla. 1st DCA 1977), cert. denied, 358 So.2d 134 (Fla. 1978). Whether undue delay has occurred depends upon the length of the delay, the reason for the delay, and, most importantly, the prejudice suffered by the defendant. Griffin, 347 So.2d at 695.

The state argues that although there was a significant prearrest delay in this case, the defendant was not prejudiced. The defendant relies on Griffin where, as here, there was an eleven-month delay from the date of the alleged criminal act until arrest. In Griffin the trial court found that as a result of the state’s delay the defendant had no recollection of what he was doing or where he was on the day he allegedly sold narcotics to an undercover officer. Moreover, the defendant was unable to locate any witnesses who could testify concerning his actions and whereabouts on the day of the crime. Therefore, the First District affirmed the trial court’s finding that the defendant demonstrated that he had suffered actual prejudice from the state’s delay.

Here, the defendant did not allege that she could not remember the accident, or that she was unable to locate witnesses to testify on her behalf. Instead, she contended that as a result of the delay she suffered prejudice because (1) a roll of film taken of skid marks and gouges in the pavement could not be located, and the officers who investigated the accident could not recall the direction or location of the skid marks or the vehicles, (2) the' vehicles that were involved were no longer available for testing to determine their operability, (3) the marks left as a result of the accident had vanished because the road where the accident occurred had been repaved, and (4) two witnesses to the accident had expressed difficulty in recalling the circumstances of the accident because of a lapse in time.

After reviewing the testimony, we think that it does not demonstrate that the defendant was prejudiced in the preparation of her defense. While some photographs of the scene have been lost, others are available. The defendant fails to allege that the vehicles which were unavailable were in any way defective and that possible tests run on them would yield results favorable to her. Moreover, there is no showing that the lost film or vehicles would have been available had the information been filed by March 1980. Further, it is unlikely that the marks or gouges noted by defendant would have survived even a short time after the accident. Finally, although two witnesses expressed difficulty in recalling the details of the accident and two officers could not remember where the marks or vehicles were located because of the delay, the difficulty the witnesses experienced in recalling the accident is common in any case. Also, the officers can review the accident report to refresh their memory. Most importantly, there are several other witnesses who are available to testify.

Accordingly, while there was a substantial delay between the accident and the defendant’s arrest, the evidence does not support the trial court’s finding that the defendant was prejudiced in the preparation of her defense. We reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.

      . See also Art. 1, § 9, Fla.Const. (1968).

      . One said, “[I]f it had been earlier I might recall more about it, but I mean a year later, it’s kind of vague.” The other, when asked if she had made a statement that she was having difficulty remembering the events, replied, “I told him it had been a while.”

      . The legislature has addressed this problem by determining the statute of limitations for vehicular homicide would be three years. §§ 775.-15(2)(b); 782.071, Fla.Stat. (1979).


author: BASKIN, Judge.

text:
    MIAMI MARINAS ASSOCIATION, INC., a Florida corporation, Appellant, v. The CITY OF MIAMI, a Florida municipal corporation, Appellee.
    No. 80-1963.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Rehearing Denied Feb. 3, 1982.
    Thomas, Kraft & Raab, Joel V. Lumer, Miami, for appellant.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   BASKIN, Judge.

Miami Marinas, Inc., a corporation formed to bid for the contract to manage Dinner Key Marina, appeals from two orders relating to the City of Miami’s selection of a management firm. In the first order, the court ruled that the City had complied with charter provisions pertaining to the method of selecting a firm to manage waterfront property contained in section 3(f)(ii)(d).

In the second order, the trial court ruled that the City had failed to comply with charter provision 3(f)(ii)(b) in that it failed to obtain two appraisals indicating the contract would result in a fair return. The court declined to restrain the City from entering the agreement and found that the City might still obtain the second appraisal.

We are asked to determine whether the Charter of the City of Miami permits the City to award a waterfront property management contract through competitive negotiation instead of through the competitive bidding process. We hold that the City of Miami was required to select its waterfront management company through competitive bidding, and we reverse the trial court’s decision.

Section 3 of the Charter of the City of Miami states:

The City of Miami shall have power:
(f) Acquiring and disposing of property:
(ii) Anything in this Charter or the ordinances of the City of Miami to the contrary notwithstanding, the city shall not lease to or contract with private firms or persons for the commercial use or management of any of the city’s waterfront property:
(a) under terms and conditions which prevent reasonable public access to the water or public use of such property; or
(b) which does not result in a fair return to the city based on two (2) independent appraisals; or
(c) for use not authorized under the then-existing master plan of the City of Miami; or
(d) without competitive bid or competitive negotiations in accordance with procedures established by the Florida Professional Competitive Negotiations Act.

Competitive bidding and competitive negotiation are different methods for selecting from offers to furnish goods or services. When competitive bidding procedures are employed, selection is based upon a comparison of sealed bids submitted pursuant to published notice inviting bids. In Florida, competitive bidding is the method required to be used by a state or municipal agency when it purchases commodities priced in excess of $2,500, section 287.062, Florida Statutes (1979), or, under the City of Miami code, amounting to more than $4,500. The Code of the City of Miami, Florida (Code 1967, § 18-54).

An agency may engage in competitive negotiation to obtain certain professional services at “fair, competitive, and reasonable” compensation by negotiating separately with the three best qualified firms commencing with the most qualified and proceeding in the order of qualification to the other two firms. § 287.055, Fla.Stat. (1979); The Code of the City of Miami, Florida (Code 1967, § 18-77.2). The statutory and code definitions of professional services to which competitive negotiation applies are architecture, professional engineering, landscape architecture, and registered land surveying. § 287.055(2)(a), Fla. Stat. (1979); The Code of the City of Miami, Florida (Code 1967, § 18-76). A waterfront property management contract is not among the defined professional services of either the statute or code.

Turning to existing case law, we find that in Glatstein v. The City of Miami, 399 So.2d 1005 (Fla.3d DCA 1981), we reversed a trial court’s finding that competitive bidding for the Watson Island Development Management Contract was unnecessary. We observed in Glatstein that bids on “sufficiently detailed and specific plans . .. promote intelligent and competitive bidding as envisioned by the city charter .... The management aspects of the contract should be subject to competitive bidding requirements.”

Appellee calls to our attention those cases which hold that contracts for leases of real property are immune from competitive bid requirements when they do not involve the expenditure of city funds. Mahoney v. Givens, 64 So.2d 926 (Fla.1953); Grove Key Marina, Inc. v. Sakolsky, 383 So.2d 695 (Fla.3d DCA 1980). We reject appellee’s contentions because we believe the leases considered are distinguishable from the management contract which we here consider with regard to the expenditure of funds.

Statutes enacted for the public’s benefit should be interpreted in a manner most favorable to the public. Board of Public Instruction of Broward County v. Doran, 224 So.2d 693 (Fla.1969). Competitive bidding statutes are enacted for protection of the public, Hotel China & Glassware Co. v. Board of Public Instruction of Alachua County, 130 So.2d 78 (Fla. 1st DCA 1961), cited in Marriott Corporation v. Metropolitan Dade County, 383 So.2d 662 (Fla.3d DCA 1980), and should be construed in a manner to avoid their circumvention. Wester v. Belote, 103 Fla. 976, 138 So. 721 (Fla.1931).

Although the trial court found that the City complied with section 3(f)(ii)(d) pertaining to competitive negotiations, we must reverse the trial court’s decision because we hold that the City was required to make its selection upon review of competitive bids.

We therefore reverse the trial court’s order denying injúnctive relief and remand the cause for further proceedings consistent with our determination that the challenged management agreement is void.

      . Although the Notice of Appeal refers to the second order, we may review the first order under Florida Rule of Appellate Procedure 9.110(h).


text:
    Rene PURINSON, Appellant, v. The ANTENNA SPECIALISTS COMPANY, a Division of Orion Industries, Inc., and member of The Allen Group, Inc., The Allen Group, Inc., and Orion Industries, Inc., Appellees.
    No. 81-672.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    Rehearing Denied Feb. 5, 1982.
    Highsmith & Strauss and Philip Glatzer, Miami, for appellant.
    Thompson & Clark and Robert H. Schwartz, Miami, for appellees.
    Before NESBITT and JORGENSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a summary final judgment for the defendant in a wrongful death action. The plaintiff, as appellant here, urges that there is a genuine issue of material fact in that the defendant had a duty to warn the plaintiff’s decedent under the factual circumstances of the injury. The defendant as movant in the trial court and as appellee here relied upon an assertion that the defendant had no duty to warn of the dangers of using a CB antenna in close proximity to an electric power line. The judgment was entered upon the trial court’s holding that there was no duty to warn. We do not decide that issue, but hold that the judgment must be reversed because the plaintiff was deprived of a right to amend. Plyser v. Hados, 388 So.2d 1284 (Fla. 3d DCA 1980).

Here, the defendant filed an answer which denied the allegations of the complaint and moved for summary judgment. The trial judge struck the affidavit of plaintiff’s expert witness filed in opposition to summary judgment and entered summary judgment in favor of defendant. The court stated in the judgment that the basis therefor was this court’s holding in Ortiz v. Tandy, 378 So.2d 1299 (Fla. 3d DCA 1979), and the case of Genaust v. Illinois Power Company, 62 Ill.2d 456, 343 N.E.2d 465 (1976), cited in Ortiz, supra.

It is apparent that the decision of the trial court was based exclusively upon the determination that under the facts alleged in the complaint there was no duty to warn plaintiff’s decedent of the danger which brought about his death. This may be correct or incorrect as the facts are developed in this case. Issues of fact were thus presented which were inappropriately disposed of on a motion for summary judgment. See Robinson v. Broward County School Board, 405 So.2d 274 (Fla. 4th DCA, 1981).

We hold that summary judgment was premature and that plaintiff-appellant must be given the opportunity to amend the complaint and to file a further affidavit, if she so desires. Plyser v. Hados, supra. See also Stephens v. Dichtenmueller, 216 So.2d 448 (Fla.1968).

Reversed and remanded for further proceedings.

      . Genaust, supra, suggests that a duty to warn is not required where the possibility of injury results from a common propensity of a product which is open and obvious. However, that case, we feel, does not address the issue of a manufacturer’s duty to warn of an allegedly latent danger of electrocution from the use of an antenna where it may appear to the user that a particular portion of the antenna will not conduct electricity.

      . Even where a summary judgment should be granted but it appears that the plaintiff may have a cause of action not pleaded, the proper procedure is to enter summary judgment but with leave to amend in that suit. Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963); Dorset House Association, Inc. v. Dorset, Inc., 371 So.2d 541 (Fla. 3d DCA 1979).


text:
    Rudolph JONES, Appellant, v. CITY OF HOMESTEAD, a Municipal Corporation, Appellee.
    No. 81-225.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 1981.
    David Goldman and Jack H. Cohen, Miami, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellee.
    Before HUBBART, C.J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Rudolph Jones appeals from an adverse summary judgment and from a subsequent denial of his motion to amend his complaint. We reverse. The summary judgment herein was based entirely on the plaintiff’s failure to state a cause of action against the City of Homestead in his complaint and, under the circumstances, it was reversible error for the trial court to deny the plaintiff an opportunity to cure this pleading defect by filing an amended complaint. Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1963); Purinson v. Antenna Specialists, Co., 408 So.2d 618 (Fla.3d DCA 1981); Plyser v. Hados, 388 So.2d 1284 (Fla.3d DCA 1980).

Reversed.


text:
    Wallace MLENAK, Appellant, v. ROLAND OFFSEToMASCHINFABRIK FABER AND SCHLEICHER, A. G., Appellee.
    No. 81-100.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1981.
    Rehearing Denied Jan. 28, 1982.
    Henry T. Courtney of the Law Offices of Henry T. Courtney, Miami, for appellant.
    Ray Dwyer and Michael C. Spring of Carey, Dwyer, Cole, Selwood & Bernard, P. A., Miami, for appellee.
   PER CURIAM.

Plaintiff appellant suffered an adverse summary judgment in this personal injury action against the manufacturer of the machine which allegedly was the cause of his injury. The motion for summary judgment was based upon principles of res judicata, defendant showing that in prior litigation appellant had asserted the identical claim against the retail seller of the machine, which litigation had been terminated by offer of judgment, acceptance and satisfaction.

We affirm on the authority of Phillips v. Hall, 297 So.2d 136 (Fla. 1st DCA 1974); Arenson v. Ford Motor Co., 254 So.2d 812 (Fla. 1st DCA 1971); Escambia Chemical Corporation v. Industrial-Marine Supply Company, 238 So.2d 684 (Fla. 1st DCA 1970); 34 A.L.R. 520; and 91 A:L.R.3d 1170.

AFFIRMED.

MOORE and GLICKSTEIN, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.