author: CAMPBELL, Judge.

text:
    Azor J. EVERTON, Jr., Appellant, v. Marion WILLARD, individually and d/b/a Willard’s Painting Company, Pinellas County Sheriff’s Department and Pinellas County, Appellees. Anton TRINKO, Personal Representative of the Estate of Renee Trinko, deceased, for the use and benefit of Anton Trinko and Phyllis Trinko, Appellant, v. Marion R. WILLARD, individually and d/b/a Willard Painting, State Automobile Mutual Insurance Company, Deputy C.W. Parker, Pinellas County Sheriff's Department and Pinellas County, Appellees.
    Nos. 81-2081, 81-2085.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    Rehearing Denied Feb. 21, 1983.

      Rick A. Mattson of Mattson & McGrady, P.A., St. Petersburg, for appellant, Everton.
    Joel P. Yanchuck and David Young of Yanchuck, Thompson & Young, P.A., St. Petersburg, for appellant, Trinko.
    James B. Thompson of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellees, Deputy Parker and Pinellas County Sheriff’s Dept.
   CAMPBELL, Judge.

This is an appeal from the dismissal of the counts of appellants’ complaints that sought damages in tort from C.W. Parker, a Pinellas County sheriff’s deputy, the Pinel-las County Sheriff’s Department, and Pinel-las County. The separate complaints were consolidated below and remain so on appeal.

The consolidated complaints present us with the issue of the scope of the sovereign immunity of those agencies for the actions of a deputy sheriff acting within the scope of his employment in exercising his discretion of whether or not to take an individual into custody. This issue is created by the application and interpretation of section 768.28, Florida Statutes (1979), and Commercial Carrier Corp. v. Indian River Coun ty, 371 So.2d 1010 (Fla.1979), and its progeny.

The facts as they must be accepted for purposes of appellees’ motions to dismiss are that Azor Everton was seriously injured and Anton Trinko’s daughter Renee was killed in a two car collision at an intersection in Pinellas County in the early morning hours of June 22, 1979. Renee Trinko was the driver and Everton was a passenger in one of the vehicles, while Marion Willard drove the second vehicle. Approximately ten to twenty minutes before the accident, Pinellas County Sheriff’s Deputy C.W. Parker stopped Willard and issued him a traffic citation or summons for making an improper U-turn at another intersection. While issuing the citation to Willard, Deputy Parker knew, by his own observations and by Willard’s own admissions, that Willard had been drinking to some extent. However, Deputy Parker did not charge Willard with a driving offense related to intoxication but instead, having issued the citation and having observed him while doing so, Parker allowed Willard to drive away. Appellants allege that by allowing Mr. Willard to proceed without detaining or arresting him for intoxication, Deputy Parker violated a duty owed to them in particular and to the public in general. They further allege that this violation resulted in the subsequent collision causing the death of Renee Trinko and the injuries to Azor Everton.

The trial court granted appellees’ motions to dismiss, explaining:

The motion to dismiss was granted because the law enforcement officer must be allowed the freedom to exercise his discretion, a discretion to enforce which lies at the very heart of the policy of law enforcement, without being subject to suit in tort if his decision in retrospect results in misfortune to innocent third parties.

We first observe that only Trinko’s complaint seeks to hold Deputy Parker liable in tort for actions allegedly committed within the scope of his employment as a deputy sheriff. Section 768.28(9)(a), Florida Statutes (1979), protects such an officer from being personally liable or from being named as a party defendant unless the officer acted in bad faith, with malicious intent, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Appellant Trinko’s complaint contains no such allegations regarding Deputy Parker and those counts of the complaint seeking damages from him should have been dismissed pursuant to section 768.28(9)(a).

If it were not for the subsequent enactment of section 768.28, Florida Statutes (1973), and the resulting decision in Commercial Carrier, we could simply affirm on the basis of Evett v. City of Inverness, 224 So.2d 365 (Fla. 2d DCA 1969), for the factual situations are amazingly similar. This court there found the City of Inverness not liable for the actions of its police officer on the “general duty” — “special duty” doctrine of Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), because Modlin required a “special duty” to the injured party. This required the Evett court to affirm the dismissal of the complaint against the City of Inverness because any duty of the city’s police officer was owed to the public in general and not specifically to the plaintiff in that case. However, in Commercial Carrier our supreme court has held that the subsequent enactment of section 768.28 abolished the Modlin “general duty” — “special duty” doctrine as it affects governmental immunity. Appellees argue, nevertheless, that even absent the Modlin doctrine they are immune from a tort action under the facts alleged by appellants because Deputy Parker’s actions came within the discretionary function exception set forth in the four-pronged test of Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), as adopted by our supreme court in Commercial Carrier. The problem with appellees’ position is that while adopting the discretionary function test of Evangelical, our supreme court also adopted the “planning” versus “operational” test of Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968). Clearly, whether discretionary or not, Deputy Parker s acts were in the operational field of law enforcement for Pinel-las County.

The Evangelical test adopted in Commercial Carrier is as follows:

Whatever the suitable characterization or label might be, it would appear that any determination of a line of demarcation between truly discretionary and other executive and administrative processes, so far as susceptibility to potential sovereign tort liability be concerned, would necessitate a posing of at least the following four preliminary questions: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom. If, however, one or more of the questions call for or suggest a negative answer, then further inquiry may well become necessary, depending upon the facts and circumstances involved.

371 So.2d at 1019, citing 407 P.2d at 445. The Johnson test also adopted in Commercial Carrier is as follows:

We recognize that this interpretation of the term “discretionary” presents some difficulties. For example, problems arise in attempting to translate this concern for the court’s role in the governmental structure into an applicable touchstone for decision. Our proposed distinction, sometimes described as that between the “planning” and “operational” levels of de-cisionmaking (cf. Dalehite v. United States, supra, 346 U.S. 15, 35-36, 73 S.Ct. 956, [967-68, 97 L.Ed. 1427]), however, offers some basic guideposts, although it certainly presents no panacea. Admittedly, our interpretation will necessitate delicate decisions; the very process of ascertaining whether an official determination rises to the level of insulation from judicial review requires sensitivity to the considerations that enter into it and an appreciation of the limitations on the court’s ability to reexamine it. Despite these potential drawbacks, however, our approach possesses the dispositive virtue of concentrating on the reasons for granting immunity to the governmental entity. It requires us to find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.

371 So.2d at 1021, citing 73 Cal.Rptr. at 248-49, 447 P.2d at 360-61 (footnote omitted).

Before specifically analyzing the facts here in relation to those tests, we will reflect briefly on the history of the sovereign immunity problem that paradoxically seems to become more tangled each time the courts attempt to untangle it. Perhaps it is time, even past time, for the issue to be definitively and specifically addressed by the legislature so that the state, its agencies and subdivisions, can, with some degree of certainty, know the extent of their liability and guard against it. It is evident that they cannot now be certain when the courts themselves obviously continue to be uncertain as to the present extent of sovereign immunity, especially as each case and each factual situation seems to produce a new “test.” It does not to us seem fair to drift toward the practice of allowing more and more cases to proceed to a jury determination on the question of what is “operational” or “planning” or what is “discretionary” or “nondiscretionary.” The danger that lies in such practice, other than the obvious one of increasingly larger jury verdicts, is that there are some functions of government that are so peculiar to the act of governing that a jury is ill-equipped to make an informed decision.

In Commercial Carrier, the court well analyzed the progress of the law of sovereign immunity in this state to its present status. Under the early cases such as Kaufman v. City of Tallahassee, 84 Fla. 634, 94 So. 697 (1922), the appellees here would clearly be immune as Deputy Parker was functioning within the scope of his employment in a pure governmental function as opposed to a proprietary function. However, as the progress of the law of sovereign immunity developed, that became less clear. Under the limitations on sovereign immunity that existed after Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957), we believe that immunity would still have existed. The “cornerstone” language of Har-grove is:

We therefore now recede from our pri- or decisions which hold that a municipal corporation is immune from liability for the torts of police officers. Affirmatively we hold that a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat superior. We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, functions as illustrated in such cases as Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378, 118 A.L.R. 1049; and Akin v. City of Miami, Fla. 1953, 65 So.2d 54.
Subject to the limitations above announced, we here merely hold that when an individual suffers a direct, personal injury proximately caused by the negligence of a municipal employee while acting within the scope of his employment, the injured individual is entitled to redress for the wrong....

96 So.2d at 133 (footnote omitted). Our conclusion that immunity would exist under Hargrove is based on the key words “direct, personal injury proximately caused.” Id. at 133 (emphasis added). Our conclusion is supported by the later decision in Modlin which refined the Hargrove decision by embracing the “special duty” doctrine necessary to impose liability.

In City of Tampa v. Davis, 226 So.2d 450 (Fla. 2d DCA 1969), this court wrestled with the Hargrove and Modlin doctrines, especially as they related to the earlier decisions of this court in Evanoff v. City of St. Petersburg, 186 So.2d 68 (Fla. 2d DCA 1966), and Town of Mount Dora v. Bryant, 128 So.2d 4 (Fla. 2d DCA 1961). We are as concerned with the results of those decisions as was the court in City of Tampa. Judge McNulty there concluded that those cases should be overruled because of Har-grove and Modlin. Although Modlin has now been overruled by Commercial Carrier, we would still conclude that Town of Mount Dora and Evanoff should be overruled based on our conclusions reached here regarding the Evangelical and Johnson tests adopted in Commercial Carrier. We believe State v. Neilson, 419 So.2d 1071 (Fla.1982), supports our reasoning and analysis in this case thus far, since there, our supreme court said:

In answering the question presented here it is necessary to return to our decision in Commercial Carrier. In that case, Justice Sundberg, in a thorough analysis of the law in this area, distinguished between that part of the sovereign immunity doctrine involving negligent tortious conduct waived by section 768.28, Florida Statutes (1977), and that part of the sovereign immunity doctrine identified at times as official or governmental immunity not waived by the statute. In the latter, absolute immunity attaches to “policy-making, planning, or judgmental governmental functions.” 371 So.2d at 1020. The underlying premise for this immunity is that it cannot be tortious conduct for a government to govern. Our decision recognized that there are areas inherent in the act of governing which cannot be subject to suit and scrutiny by judge or jury without violating the separation of powers doctrine. We reiterate the reason for this immunity as quoted in Commercial Carrier from Evangelical United Brethren Church v. State, 67 Wash.2d 246, 254, 407 P.2d 440, 444 (1965):
The reason most frequently assigned is that in any organized society there must be room for basic governmental policy decision and the implementation thereof, unhampered by the threat or fear of sovereign tort liability, or, as stated by one writer, “Liability cannot be imposed when condemnation of the acts or omissions relied upon necessarily brings into question the propriety of governmental objectives or programs or the decision of one who, with the authority to do so, determined that the acts or omissions involved should occur or that the risk which eventuated should be encountered for the advancement of governmental objectives.” Peck, The Federal Tort Claims Act, 31 Wash.L.Rev. 207 (1956).
Commercial Carrier, 371 So.2d at 1019 (emphasis added).

Id., 419 So.2d at 1075.

Our problem in deciding this case derives from the holding in Commercial Carrier that:

So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain “discretionary” governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance. In order to identify those functions, we adopt the analysis of Johnson v. State, supra, which distinguishes between the “planning” and “operational” levels of decision-making by governmental agencies. In pursuance of this case-by-case method of proceeding, we commend utilization of the preliminary test iterated in Evangelical United Brethren Church v. State, supra, as a useful tool for analysis.
Recurring, then, to the instant cases. It is apparent that the maintenance of a traffic signal light which is in place does not fall within that category of governmental activity which involves broad policy or planning decisions. This is operational level activity.

371 So.2d at 1022 (footnote omitted). Perhaps the problem is that too much emphasis has been placed on the last quoted sentence: “This is operational level activity.” Id. at 1022. We believe that merely because an activity is “operational”, it should not necessarily be removed from the “category of governmental activity which involves broad policy or planning decisions.” Id. at 1022. We believe that though Deputy Parker’s activities were clearly operational, they also involved basic governmental policy and the implementation thereof as emphasized by the court in Neilson. Certainly, law enforcement is basic to government. Failure to adequately maintain or even to install adequate traffic control devices might eventually result in a certain amount of chaos as regards our transportation system. However, failure to maintain good, adequate, and reasonable law enforcement would not just be chaotic, it would be disastrous. Absolutely essential to a good, adequate, and reasonable system of law enforcement as we now know it is its own operation level activities, and essential in those operational level activities is the discretion of a law enforcement officer under the circumstances of a particular case to decide whether or not to detain or arrest someone.

Our recognition of a law enforcement officer’s discretion not to invoke the criminal process is not unique to us, and lest some view that premise with alarm we here quote selections from studies recognizing that discretion.

Professor Joseph Goldstein, in his article, “Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice”, 69 Yale L.Jr. 543, 543 (Mar.1960), makes the following statement:

Police decisions not to invoke the criminal process largely determine the outer limits of law enforcement. By such decisions, the police define the ambit of discretion throughout the process of other decisionmakers — prosecutor, grand and petit jury, judge, probation officer, correction authority, and parole and pardon boards. These police decisions, unlike their decisions to invoke the law, are generally of extremely low visibility and consequently are seldom the subject of review. Yet an opportunity for review and appraisal of nonenforcement decisions is essential to the functioning of the rule of law in our system of criminal justice.

(Footnotes omitted.) Goldstein notes further that:

Full enforcement, ... is not a realistic expectation. In addition to ambiguities in the definitions of both substantive offenses and due-process boundaries, countless limitations and pressures preclude the possibility of the police seeking or achieving full enforcement. Limitations of time, personnel, and investigative devices — all in part but not entirely functions of budget — force the development, by plan or default, of priorities of enforcement. Even if there were “enough police” adequately equipped and trained, pressures from within and without the department, which is after all a human institution, may force the police to invoke the criminal process selectively. By decisions not to invoke within the area of full enforcement, the police largely determine the outer limits of actual enforcement throughout the criminal process.

Id. at 560-62 (footnotes omitted).

Additionally, Professor Wayne R. La-Fave, in his study, “Arrest: The Decision to Take a Suspect Into Custody”, written for the American Bar Association as part of the Administration of Criminal Justice Series, opens with the following statement:

This volume deals with the decision to take custody of a person suspected of criminal behavior. This decision is obviously an important exercise of official power, from the point of view of both the individual involved and the system of criminal justice administration. Arrest results in detention of the individual, usually a search of his person, sometimes the use of force, and often, with the possible exception of the chronic offender, damage to his reputation. In most cases, decisions to charge, to convict, and to sentence are made only with respect to those persons whom the police have first arrested. Thus, to a large extent, this decision determines those offenders against whom the official process is to be invoked. Its importance necessitates concern with who makes the decision to arrest, how it is made, and particularly how it is controlled in order to insure its conformance with the basic objectives of consistency and fairness.

Id. at 3 (footnotes omitted). He continues:

4. The need for discretion. It is obvious that in practice some discretion must be employed somewhere in the existing criminal justice system. The exercise of discretion in interpreting the legislative mandate is necessary because no legislature has succeeded in formulating a substantive criminal code which clearly encompasses all conduct intended to be made criminal and which clearly excludes all other conduct.
... [T]he exercise of discretion seems necessary in the current criminal justice system for reasons unrelated to either the interpretation of criminal statutes or the allocation of available enforcement resources. This is because of the special circumstances of the individual case, particularly the characteristics of the individual offender which “differentiate him from other offenders in personality, character, sociocultural background, the motivations of his crime, and his particular potentialities for reform or recidivism.” The infinite variety of individual circumstances complicates administration by mere application of rules. Justice Charles D. Breitel, who has had extensive administrative, legislative, and judicial experience, stresses this point:
If every policeman, every prosecutor, every court, and every post-sentence agency performed his or its responsibility in strict accordance with rules of law, precisely and narrowly laid down, the criminal law would be ordered but intolerable.
Individualized treatment of an offender, based upon the circumstances of the particular case, is well recognized at the sentencing stage, where discretion is provided. These same circumstances may be apparent at the arrest stage and may seem to the police to dictate that the criminal process not be invoked against a particular offender. While sentence discretion is widely recognized, arrest discretion is not. This may reflect an assumption that, while individual circumstances may justify mitigation, the individualization of criminal justice should never go so far as to result in the complete exoneration of a particular offender. The contrary view is that the individual circumstances sometimes make conviction and even arrest excessive, so that proper administration requires the exercise of discretion at the early as well as at subsequent stages in the process.

Id. at 69-70, 71-72 (footnotes omitted).

In regard to the exercise of discretion at the subsequent stages of the criminal process, we encourage a close reading of Judge Hurley’s opinion in Berry v. State, 400 So.2d 80 (Fla. 4th DCA 1981), regarding judicial and prosecutorial immunity in light of section 768.28. It would seem less than fair to not impose immunity as a result of the actions of the officer in the street under the pressures of the moment when immunity in the same case would be afforded the judge and prosecutor for their deliberate actions in the cool light of day.

We have wrestled long and hard with the problems presented by this case and the various theories involved. We have determined that the unique situation presented here is the square peg that will not fit either the “operational,” “planning,” or “discretionary” — “nondiscretionary” tests as set forth in Commercial Carrier and its progeny. We feel, however, that our supreme court in Commercial Carrier did not impose the “operational” test as an absolute restriction on immunity, and we therefore conclude that this case meets the four-pronged Evangelical test adopted in Commercial Carrier: (1) Does the challenged act necessarily involve a basic governmental program”? Yes, that program being a reasonable system of law enforcement. (2) Is the act or decision essential to the accomplishment of that program as opposed to one which would change the course of the program? Yes, because we believe that to remove discretion from the operational level of law enforcement would make a radical change in the ability to maintain a reasonable, workable system of law enforcement. (3) Does the act or decision require the exercise of basic policy evaluation, judgment, and expertise? Yes, because probably nowhere else is evaluation, judgment, or expertise so immediately necessary as it may affect citizens’ basic rights as with the law enforcement officer in the field. (4) Is there involved the lawful authority and duty to make the decision? Yes, again because if discretion were removed, law enforcement would necessarily undergo radical and unknown changes.

We, therefore, determine that the proper planning and implementation of a viable system of law enforcement for any governmental unit must necessarily include the discretion of the officer on the scene to arrest or not arrest as his judgment at the time dictates. When that discretion is exercised, neither the officer nor the employing governmental entity should be held liable in tort for the consequences of the exercise of that discretion. In reaching our decision, we are not unmindful of the decisions in Downs v. United States, 522 F.2d 990 (6th Cir.1975); Liuzzo v. United States, 508 F.Supp. 923 (E.D.Mich.1981); and Simon v. Heald, 359 A.2d 666 (Del.Super.Ct.1976). Were we called upon to make those decisions, to the extent not controlled by the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b)-1346(f) (1976), we would have reached a contrary result.

We also reject any assertion that sections 30.07 and 30.15, Florida Statutes (1979), creates a special standard of duty and liability for sheriffs and their deputies.

Although not argued by the parties, we have considered section 856.011, Florida Statutes (1979), relating to disorderly intoxication. That statute contains a proviso that a law enforcement officer taking certain acts in regard to an intoxicated person shall be considered as carrying out his official duties. That proviso language creates no liability not otherwise specifically imposed.

Therefore, because Deputy Parker exercised a discretion inherent both in the nature of enforcement and in the implementation of basic planning level activity, we affirm the order of the trial court.

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

      . Evanoff v. City of St. Petersburg, 186 So.2d 68 (Fla. 2d DCA 1966), and Town of Mount Dora v. Bryant, 128 So.2d 4 (Fla. 2d DCA 1961), both involve factual situations where a police officer was pursuing a suspect vehicle when the suspect vehicle was involved in a collision with a third vehicle. In neither case was the pursuing police car involved in the collision. In both cases, the court held that sovereign immunity did not apply and that the city whose police car was involved in the chase could be liable for the actions of the officer involved.

      . Section 30.07, Florida Statutes (1979):
      Deputy sheriffs. — Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible.

      . Section 30.15, Florida Statutes (1979):
      Powers, duties, and obligations. — Sheriffs, in their respective counties, in person or by deputy, shall:
      (1) Execute all process of the Supreme Court, circuit courts, county courts, and boards of county commissioners of this state, to be executed in their counties;
      (2) Execute such other writs, processes, warrants, and other papers directed to them, as may come to their hands to be executed in their counties;
      (3) Attend all terms of the circuit court and county court held in their counties;
      (4) Attend all meetings, and execute all orders, of the boards of county commissioners of their counties; for which services they shall receive such compensation, out of the county treasury, as said boards may deem proper;
      (5) Be conservators of the peace in their counties;
      (6) Suppress tumults, riots, and unlawful assemblies in their counties with force and strong hand when necessary;
      (7) Apprehend, without warrant, any person disturbing the peace, and carry him before the proper judicial officer, that further proceedings may be had against him according to law;
      (8) Have authority to raise the power of the county and command any person to assist them, when necessary, in the execution of the duties of their office; and, whoever, not being physically incompetent, refuses or neglects to render such assistance, shall be punished by imprisonment in jail not exceeding 1 year, or by fine not exceeding $500;
      (9) Be, ex officio, timber agents for their counties; and
      (10) Perform such other duties as may be imposed upon them by law.


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    TIEN WANG, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1475.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Rehearing Denied March 10, 1983.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and John F. Ro-benalt and Penny H. Hershoff, Asst. Attys. Gen., for appellee.
    Before DANIEL S. PEARSON, and FERGUSON, JJ., and WILLIAM C. OWEN, Jr., (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Premeditation is the “one essential element which distinguishes first-degree murder from second-degree murder.” Polk v. State, 179 So.2d 236, 237 (Fla. 2d DCA 1965); Anderson v. State, 276 So.2d 17 (Fla.1973).

“Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues.... Premeditation does not have to be contemplated for any particular period of time before the act, and may occur a moment before the act .... It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of his victim is concerned.” Sireci v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982) (citations omitted).

See also Davis v. State, 138 Fla. 798, 190 So. 259 (1939); Thompson v. State, 397 So.2d 354 (Fla.3d DCA 1981), modified sub nom., State v. Thompson, 413 So.2d 757 (Fla.1982); Hines v. State, 227 So.2d 334 (Fla.lst DCA 1969); Weaver v. State, 220 So.2d 53 (Fla.2d DCA), cert. denied, 225 So.2d 913 (Fla.1969). Thus, a “[premeditated design to effect the death of a human being is more than simply an intent to commit homicide,” Littles v. State, 384 So.2d 744, 745 (Fla.1st DCA 1980), and more than an intention to kill must be proved to sustain a first-degree murder conviction. Miller v. State, 75 Fla. 136, 77 So. 669, 671 (1918).

Guided by these principles, we are compelled to hold that the evidence adduced below by the State, being not inconsistent with the hypothesis that the defendant intended to kill without premeditation, was therefore legally insufficient to prove Tien Wang guilty of first-degree murder. In essence, the evidence showed that Pau-Chin Chou, the defendant’s wife, disenchanted with the marriage, chose to separate from Tien Wang. She induced Tien Wang to return to his native Taiwan with a promise, never fulfilled by her, to provide him with a return ticket. The defendant, greatly upset and disturbed at the prospect of their marriage having failed, ultimately made his way back to Florida to try to effect a reconciliation. He forced his wife to go to Miami with him. At Pau-Chin Chou’s request, her stepfather, Donald Kirtley, went to Miami to take her from the defendant. Tien Wang unavailingly pleaded with Kirt-ley to allow Pau-Chin Chou to remain. A violent quarrel between them ensued, and the defendant stabbed Kirtley to death.

No one witnessed the final altercation between the defendant and Kirtley. Three people saw the defendant chasing Kirtley in the street, and one of them saw the defendant striking Kirtley. There was no direct evidence elicited by the State bearing on the element of premeditation. While the State submits that premeditation was circumstantially shown by the testimony of the people who observed the chase and the one person who saw the repeated striking, such testimony, concededly not inconsistent with a premeditated design to kill, is equally consistent with the hypothesis that the intent of the defendant was no more than an intent to kill without any premeditated design. That being the case, the testimony is insufficient to prove first-degree murder under the well-established rule governing circumstantial evidence:

“When the State relies upon purely circumstantial evidence to convict an accused, we have always required that such evidence must not only be consistent with defendant’s guilt but it must also be inconsistent with any reasonable hypothesis of innocence....
“Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.” Davis v. State, 90 So.2d 629, 631-32 (Fla.1956) (citations omitted).

When, as here, the intent of an accused is sought to be established by the actions of the accused, the circumstantial evidence rule applies. See McArthur v. State, 351 So.2d 972 (Fla.1977); P.R. v. State, 389 So.2d 1078 (Fla.3d DCA 1979); Gellman v. State, 371 So.2d 181 (Fla.3d DCA 1979); K.W.U. v. State, 367 So.2d 647 (Fla.3d DCA), cert. denied, 378 So.2d 349 (Fla.1979).

In Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947), the accused, in the throes of divorcing his wife, shot and killed a man whom he discovered in a compromising position with her. The court reduced the conviction for first-degree murder to a conviction for manslaughter.

“In this case, defendant did not testify that he killed the deceased in the heat of passion, or that he did not know what he was doing, or that he was so moved by any emotion that he killed the deceased. But his actions speak louder than any testimony he might have given. From the record it appears that those in the house at the time of the killing were of such a temperament and disposition that they reacted to human impulses much more readily, than they could have expressed themselves in any words at trial....

“The defendant certainly was no model husband. No doubt he had mistreated and abused his wife, though he denied it and though he was still trying to effect a reconciliation. He had been twice before convicted of crime. His excuse for carrying a pistol, while plausible, was wholly uncorroborated. He had perjured himself in the divorce suit. But he was human and had ‘the frailty of human nature,’ ... when he saw his wife and this nude man, emerging from the very bedroom that he and she had formerly occupied. We conclude that the killing was committed in sudden heat of passion, aroused by adequate provocation.” 30 So.2d at 369 (citations omitted).

In Forehand v. State, 126 Fla. 464, 171 So. 241 (1936), the defendant was charged with first-degree murder arising from the death of Pledger, a deputy sheriff, during a quarrel outside a nightclub. The homicide was preceded by a violent altercation involving the defendant, his brother, and a number of other persons. The murder occurred when Pledger attempted to remove the defendant and his brother from the area, and the defendant struck him in the face; Pledger returned the blow with a blackjack, which was seized by the defendant’s brother. Pledger and the brother fell to the ground, and the defendant seized a pistol from Pledger and fired several times, killing both men.

The court, noting the rule in Whidden v. State, 64 Fla. 165, 59 So. 561 (1912), stated the principles which governed its disposition of the case:

“[A] well-defined purpose to kill may be induced, compelled, or constrained by anger of such degree as for the moment to cloud the reason and momentarily obscure what might otherwise be a deliberate purpose by its impelling influence.
“As the element of premeditation is an essential ingredient of the crime to murder in the first degree, it is necessary that the fact of premeditation uninfluenced or uncontrolled by a dominating passion sufficient to obscure the reason based upon an adequate provocation must be established beyond a reasonable doubt before it can be said that the accused was guilty of murder in the first degree as defined by our statute.” Forehand v. State, supra 171 So. at 243 (citations omitted).

Notwithstanding the court’s acknowledgment that “it can be reasonably determined that the altercation which ensued at or near the highway was participated in by the Forehand boys, if indeed not the result of a declared purpose by them to ‘take the place’ and handle Pledger if he interfered...,” 171 So. at 242, the court held that it was “entirely possible, even probable, that the assault by Pledger upon the accused with the blackjack aroused the latter’s passion which reached its climax when he beheld his brother on the ground under Pledger,” and that the evidence was therefore “not legally sufficient to exclude a reasonable doubt as to the existence of a premeditated design of the accused to take the life of Pledger.” 171 So. at 244.

The same reasonable possibility exists in this case. The homicide climaxed a day of impassioned efforts by defendant to persuade his wife not to leave him, which, in turn, had been immediately preceded by his having traveled halfway around the world to see her. Mr. Kirtley, her stepfather, thwarted those efforts, and by obstructing defendant gave Pau-Chin an opportunity to leave. Kirtley brusquely rejected the entreaties of the defendant as Tien Wang humbled himself before him and begged Kirtley not to take his wife from him. Even as the passion which was found to have motivated the defendants in Febre and Forehand caused the court to invalidate the first-degree murder convictions in those cases, so too the evidence in this case, although not necessarily establishing that defendant acted “in the heat of passion,” is as consistent with that hypothesis as it is with the hypothesis that the defendant acted with premeditated design. Accordingly, Tien Wang’s conviction for first-degree murder is reversed with directions to reduce the conviction to one for second-degree murder and resentence the defendant. See Purkhiser v. State, 210 So.2d 448 (Fla.1968); Sheffield v. State, 73 So.2d 65 (Fla.1954); Douglas v. State, 152 Fla. 63, 10 So.2d 731 (1942); Weaver v. State, supra; § 924.34, Fla.Stat. (1981).

Reversed and remanded with directions.

      . The defendant’s testimony was that he did not intend to kill Kirtley and that he was “confused” and “not of myself’ during the altercation. Even if the jury chose to reject the defendant’s testimony, that rejection does not improve the State’s case.


author: PER CURIAM.

text:
    BETH S. by her next friends and attorneys, Terry DEMEO and Rena Wisotsky, individually and on behalf of all others similarly situated, Petitioners. v. GRANT ASSOCIATES, INC., a Florida corporation d/b/a Grant Center Hospital and Treatment Center, Lee Haber, as Administrator of Grant Center Hospital and Treatment Center, Respondents.
    No. 81-1975.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 1983.
    Rehearing Denied Feb. 28, 1983.
    Rena Wisotsky, Legal Services of Greater Miami, Inc., Miami, and Neil Chonin, Coral Gables, for petitioners.
    Joe N. Unger, Miami, Pomeroy, Betts & Pomeroy, Fort Lauderdale, for respondents.
    Before HUBBART and DANIEL S. PEARSON, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This is an original petition for a writ of certiorari to review a trial court order disqualifying certain counsel from representing the petitioner Beth S., in a suit filed below against the respondents Grant Associates, Inc., et al. We have jurisdiction to entertain this petition. Art. V, § 4(b)(3), Fla. Const.; DeArce v. State, 405 So.2d 283 (Fla. 1st DCA 1981).

The sole basis for counsel’s disqualification below is that the respondents have deposed counsel in the cause and have elicited testimony relating to one count of a five-count complaint filed herein, thereby allegedly making counsel potential witnesses on substantive matters in the cause and ineligible to proceed as counsel in this case. We have carefully examined the record, however, and have concluded that counsels’ testimony relates to an uncontested matter which is in no way essential or prejudicial to petitioner’s theory of liability under the subject count of the complaint.

Plainly, a lawyer is not required to decline employment or withdraw as counsel in a case because the lawyer will be a witness in the case where, as here, the lawyer’s testimony relates to an uncontested matter which is not prejudicial to the client. Fla.Bar Code Prof.Resp., D.R. 5-101(B)(1); D.R. 5-102 (1970). Moreover, this result is particularly compelled where, as here, the client is insolvent, unable to retain counsel, and counsel is serving on a pro bono basis. Id., D.R. 5-101(B)(4). For these reasons, the order of disqualification under review constitutes a departure from essential requirements of law and must be quashed.

The petition for a writ of certiorari is granted, the order under review is quashed, and the cause is remanded to the trial court for further proceedings.

      . Fla.Bar Code Prof.Resp., D.R. 5-101(B)(l):
      “A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
      (1) If the testimony will relate solely to an uncontested matter.”

      . Fla.Bar Code Prof.Resp., D.R. 5-102:
      “(A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(l) through (4).
      (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.”

      .Fla.Bar Code Prof.Resp., D.R. 5-101(B)(4):
      “A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

      (4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.”


author: NELSON, WILLIAM J., Associate Judge.

text:
    William F. KISZ and Ann T. Kisz, his wife, Appellants, v. Mack MASSRY, Sandra Massry, Southeast First Bank of Largo and Leta S. Allen, Appellees.
    No. 81-2459.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1983.
    Rehearing Denied Feb. 24, 1983.

      Anthony P. Gránese, Clearwater, for appellants.
    Seymour A. Gordon of Gay and Gordon, St. Petersburg, for appellees.
   NELSON, WILLIAM J., Associate Judge.

On June 30,1978, an action to foreclose a mortgage on real property was filed by appellees. Appellants filed an answer and affirmative defenses raising the issue of statute of limitations. The only issue at trial was the determination of the applicability of the statute of limitations contained in section 95.281(l)(a) and (l)(b), Florida Statutes (1981). The trial was conducted in November, 1981. There was an oral understanding between counsel that the trial would be conducted similar to an argument for summary judgment in that there would be no presentation of testimony because there were no questions of fact.

At trial appellees took the position that the applicable subsection of Florida Statute 95.281 was subsection (l)(b); that the final maturity of the note was not ascertainable from the record of it, and that the statute of limitations was therefore twenty years. Appellants took the position that Florida Statute 95.281(l)(a) was applicable in that the final maturity of the note was ascertainable from the record and that the five-year statute of limitations should apply-

The trial judge heard argument and decided that the final maturity of the obligation was not ascertainable from the record of it, and, therefore, the twenty-year statute of limitations was applicable. The trial decision was rendered in favor of the appel-lees and final judgment was entered.

The final judgment called for a sale by the clerk on December 7, 1981 at 11:00 a.m. Notice of foreclosure sale was published on November 20 and 27, 1981. Counsel for appellants notified counsel for appellees that “in the meantime” he would discuss with his clients the possibility of making a settlement or going to the appellate court.

On the date of the foreclosure sale, counsel for appellants and appellees agreed that appellants would pay the full amount of the final judgment plus publication costs. Based upon this stipulation and settlement of the case, counsel for appellees cancelled the foreclosure sale. The agreement was never carried through and this appeal followed.

Appellants argue that the trial court erred in applying section 95.281(l)(b). Ap-pellees argue that appellants are not in a position to seek review of this question by the appellate court because of the stipulation entered into by counsel for the respective parties. We agree with appellees.

The stipulated facts show that after the lower court entered its final judgment, counsel for appellants entered into an agreement with counsel for appellees on December 7, 1981, whereby the foreclosure sale to be held that day was called off and appellants were to pay $8,984.34, together with $16.95 to cover the publication costs for the foreclosure sale.

There is no issue as to whether the agreement was entered into or whether appellants received the benefit therefrom. These facts were contained in the court approved statement of the evidence and proceedings.

Where a party accepts the benefits of a settlement agreement or a compromise of his case and knows, or in the exercise of due diligence should have known, of the facts concerning that settlement, the party ratifies the settlement by accepting the benefits whether the settlement was in the first instance authorized by him, and he is thereafter estopped to attack the settlement. Nagymihaly v. Zipes, 353 So.2d 943 (Fla. 3d DCA 1978).

In that appellants agreed to the judgment rendered by the lower court, the judgment is AFFIRMED.

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


author: SCHEB, Judge.

text:
    Peggy REYNOLDS, Appellant, v. TOWNE MANAGEMENT OF FLORIDA, INC., d/b/a Spanish Oaks Apartments, Appellee.
    No. 82-533.
    District Court of Appeal of Florida, Second District.
    Jan. 12, 1983.
    Rehearing Denied Feb. 21, 1983.

      John R. Bush of Bush, Ross, Gardner, Warren & Rudy, Tampa, for appellant.
    Thomas J. Roehn and James A. Gresser of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee.
   SCHEB, Judge.

A jury awarded plaintiff, Peggy Reynolds, $31,000 damages against her landlord for its conversion of her personal property and denied the landlord’s counterclaim for rent. The trial court ordered a remittitur reducing the plaintiff’s award to $5,000 or in the alternative requiring a new trial. Reynolds declined to accept the remittitur and filed this appeal challenging the trial court’s order. We reverse.

Reynolds leased an apartment from defendant. When a monthly rent check was returned for insufficient funds, defendant landlord served a three-day delinquent rent notice requiring Reynolds to pay the rent or quit and deliver possession of the premises. The notice indicated that, if she failed, legal proceedings would be instituted to recover possession of the premises. However, despite the fact that Reynolds did not abandon the premises, the landlord failed to initiate any formal eviction proceedings. Instead, while she was away from her apartment, the landlord employed self-help to remove her possessions. In doing so it failed to safeguard them, and as a result her effects were discarded. Reynolds then brought this action against the landlord seeking damages for conversion of her property.

The case was tried by jury with plaintiff and defendant each producing several witnesses and exhibits. Reynolds, however, was the only witness who testified as to the value of her property. She explained that she kept three sets of furnishings in her apartment. She described in detail her personal belongings, which included antiques, heirlooms, art objects and other items. Basing her estimate on various factors including purchase price and replacement costs, as well as the value of her possessions to herself, she arrived at a total value of $30,988.50. Defendant interposed several objections to the admissibility of Reynolds’ testimony regarding her ability to testify as to the value of her effects. These were overruled, yet the defendant offered no evidence on the issue of value. After returning its verdict for plaintiff, the jury was polled at defendant’s request and responded that it found plaintiff had never abandoned her apartment. A series of post-trial motions were filed by defendant after which the court entered its order which plaintiff now challenges.

The trial court stated three reasons for its decision ordering either a remittitur or a new trial: (1) the amount of the jury verdict was not reasonably related to the damages actually proven, (2) the verdict was contrary to the manifest weight of the evidence, and (3) the verdict was so excessive as to shock the conscience of the court. Since the court ordered a remittitur, we perceive it concluded only that the damages awarded were excessive, and not that Reynolds failed to establish the landlord’s liability.

Before a trial court may order a new trial as an alternative to remittitur, the record must affirmatively show the impropriety of the verdict or there must be an independent determination that the jury was influenced by considerations outside the record. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). The court has a duty to grant a new trial where it determines that the verdict is against the manifest weight of the evidence. Such a determination, however, must be supported by the record. Cloud v. Fallis, 110 So.2d 669 (Fla.1959). Further, as our supreme court has noted, when a court orders a remittitur the extent to which the verdict is excessive must also clearly appear from the record. De La Vallina v. De La Vallina, 90 Fla. 905, 107 So. 339 (1926).

Here, Reynolds was the only person to testify on the value of her belongings. No conflicting testimony was offered. The record simply does not support the trial court’s conclusion that the verdict was not reasonably related to the damages actually proven and was against the manifest weight of the evidence. Rather, the trial court’s order seems to merely reflect that the court was dissatisfied with the amount of the verdict.

While a trial court has broad discretion in awarding a new trial and such orders are not disturbed absent a clear showing of abuse of discretion, Cloud v. Fallis, such orders must nevertheless be supported by the record or by findings of influence outside the record. Here, however, there was no conflicting evidence on the issue of value, nor was there any determination that the jury was influenced by considerations outside the record. Thus, we think the court abused its discretion in concluding that the verdict was not reasonably related to the damages proven and was against the manifest weight of the evidence.

We note that this is not a case where the trial court determined that it erred in admitting the testimony on which the jury based its award of damages. The trial judge, we think, was correct in receiving plaintiff’s testimony because where personal effects have been destroyed the court must apply a test that will allow such evidence of value as will enable a jury to reasonably compensate the person wronged. Florida Public Utilities Co. v. Wester, 150 Fla. 378, 7 So.2d 788 (1942). Moreover, since the property was discarded by defendant no expert testimony was available, and it is doubtful that any additional evidence of value could be offered if a new trial were held.

Finally, we do not feel it necessary to discuss the third reason articulated by the trial court as a ground for its order. Wack-enhut implicitly held that shock to the judicial conscience is no longer a viable standard on which to grant a new trial as to damages.

Accordingly, we reverse and direct the trial court to enter a judgment for Reynolds in accordance with the jury’s verdict.

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


author: RYDER, Judge.

text:
    Vincent DOTOLO, John Dotolo, Vin-Dotco, Inc., a Florida corporation, and Dotolo Citrus Research Corporation, a Florida corporation, Appellants, v. Jerry P. SCHOUTEN and Helen P. Schouten, his wife, and Environmental Protection Products Company, Inc., a Florida corporation, a/k/a Eppco, Inc., Appellees.
    No. 82-982.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1983.
    Rehearing Denied Feb. 23, 1983.

      F. Wallace Pope, Jr. of Johnson, Blakely, Pope, Bokor, Ruppel & Tew, P.A., Clear-water, for appellants.
    Robert W. Pope of the Law Offices of Robert W. Pope, P.A., St. Petersburg, for appellees.
   RYDER, Judge.

This appeal is from an order denying appellants’ motion for a preliminary injunction by which they sought to prevent the misappropriation of a trade secret. We reverse.

Appellants filed a suit against appellees, alleging they had misappropriated their secret formula used to produce citrus-based pet products. Appellants sought damages as well as a preliminary and permanent injunction.

The facts presented at the motion for preliminary injunction are as follows: The parties initially engaged in business with each other in June 1977. Appellants’ original sales to appellees involved a citrus-based, waterless hand cleaning product. In 1979, the parties discussed the possible marketing of a pet treatment and shampoo product to be manufactured from a citrus-based formula also originally developed by appellants but as a carpet cleaner. The appellees wanted to establish a more permanent relationship with appellants so that they would have an assured supply of appellants’ formulations. Toward that end, a meeting between the parties was held at the office of appellees’ attorneys to discuss a distributorship agreement. The facts are in dispute as to whether the parties entered into an express oral agreement of confidentiality concerning the formulas of appellants’ citrus-based products. The appellants claim there was such an agreement. The appellees testified that, although appellants informed them that the formulas were secret, the appellees did not agree to treat the formulas as secret.

As a result of the meeting, appellants began selling their citrus-based pet products to appellees. The appellants required the appellees to place on all bottles of pet shampoo and pet treatment the appellants’ logo and the words “Patent Pending” to indicate to consumers that the material in the bottle was appellants’ formulation and that appellants had applied for U.S. patents on the products.

In early 1981, the appellees requested that appellants grant them an exclusive right to market appellants’ citrus-based products in the United States. Although the parties contemplated that a formal written agreement would be executed, the parties were never able to come to terms, and appellants ceased selling their products to appellees. When the appellees’ supply of the secret formulation was no longer available to them from appellants, appellees took samples of appellants’ formulation to a chemical laboratory and had the samples analyzed to determine the percentage of the various ingredients in the product. After exhausting their supply of appellants’ products in inventory, the appellees began making and selling their imitation of appellants’ product.

The appellants contend that injunctive relief is the only complete and adequate remedy to stop the appellees’ continuing misappropriation of their secret formula. We agree. They argue that irreparable harm and inadequate remedy at law should be presumed in an action for injunctive relief with respect to the misappropriation of a trade secret. We agree.

The uncontroverted testimony before the trial court is that the formula of the citrus-based product was developed by the appellants. The appellees were instructed that the formula was a trade secret and that the appellants wished to protect it. The lack of any express agreement on the part of the appellees not to use or disclose appellants’ trade secret is not significant. The existence of a confidential relationship such as that in this case gives rise to an implied obligation not to use or disclose. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 94 S.Ct. 1879, 40 L.Ed.2d 315 (1974); Z. Cavitch, Business Organizations, § 233.01(2), at 233-236.

While a temporary or preliminary injunction is an extraordinary remedy which should be granted sparingly, the establishment of legal rights carries with it the duty to grant an appropriate remedy. Silvers v. Dis-Com Securities, Inc., 403 So.2d 1133 (Fla. 4th DCA 1981). The misappropriation and continuing use of a trade secret constitutes a continuing tort. See 55 Am.Jur.2d Monopolies, Restraints of Trade, and Unfair Trade Practices, § 713 (1971). The prevention of continuing wrongs is a well recognized basis for injunctive relief, as is the prevention of a multiplicity of suits. See generally 29 Fla.Jur.2d Injunctions § 15; 22 Fla.Jur.2d Equity §§ 15, 16.

In the case sub judice, injunctive relief was the only appropriate remedy against the appellees’ continuing act of misappropriation. Implicit in our holding is a recognition that irreparable injury may be presumed in cases involving wrongful interference with a business relationship. Irreparable injury need not be alleged or proven. Unistar Corp. v. Child, 415 So.2d 733 (Fla. 3d DCA 1982); Silvers v. Dis-Com Securities, Inc., supra.

Accordingly, the order denying the preliminary injunction is reversed and the cause remanded with directions to enter an order granting a temporary injunction, and to conduct further proceedings in conformity with this opinion.

GRIMES, A.C.J. and NELSON, WILLIAM J., Associate Judge, concur.

      . At the hearing on the request for preliminary injunction, the appellees’ former attorney testified that the appellees acknowledged that appellants had a patent pending on the formulas and agreed that the formulas were secret.


text:
    Edward J. RUFF and Blanche Ruff, his wife, and Barbara O’Connell, Appellants, v. The SCHOOL BOARD OF COLLIER COUNTY, Florida, Thomas Richey, and Bill Barnett, individually and as Class Representative of the Collier County School Board Sex Education Policy Task Force, Appellees.
    No. 82-1453.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1983.
    Rehearing Denied Feb. 16, 1983.

      Robert M. Brake, Coral Gables, for appellants.
    James H. Siesky, Naples, for appellees.
   CAMPBELL, Judge.

Appellants seek review of a summary judgment entered by the trial court for appellees. We affirm.

Appellants filed suit against appel-lees, alleging a violation of chapter 286, Florida Statutes (1981), commonly known as the “Florida Sunshine Law” and seeking to void certain actions of the appellee “Task Force.” The trial judge found that the organizational meeting of the task force was not subject to chapter 286 and that section 286.012, Florida Statutes (1981), did not apply to the task force. That conclusion of the trial court was in error. Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974); Hough v. Stembridge, 278 So.2d 288 (Fla.1973); Krause v. Peno, 366 So.2d 1244 (Fla. 3d DCA 1979). Even so, the summary judgment for appellees can be sustained based on the trial judge’s finding that notice was adequate even if chapter 286 did apply to the task force and based on the following discussion of the requirements of section 286.012, Florida Statutes.

The issue raised by appellants that most concerns us is whether section 286.012, Florida Statutes, requires a so-called roll call vote of the members of a public agency who are present and voting so that each member’s specific vote on every subject is recorded. We hold that it does not. The title to chapter 72-311, Laws of Florida (1972), which became section 286.012, reads:

AN ACT relating to governmental boards and agencies of state, county and municipal governments; prohibiting abstention from voting by members of such boards and agencies in matters requiring votes; providing an exception; providing an effective date.

The title makes no reference to the recording of votes. It was obviously directed at, as it states, “prohibiting abstention from voting.” In City of Hallandale v. Rayel Corp., 313 So.2d 113 (Fla. 4th DCA 1975), the court held that though section 286.012 requires every member of a governmental board who is present at any meeting to vote in the proceedings, the failure of a member to vote and thereby have no vote for that member recorded does not invalidate the proceeding. The wording of section 286.012 supports our conclusion that a roll call vote so as to record the individual vote of each member is not necessary. The pertinent language of the statute is that “a vote shall be recorded or counted for each such member present.” (Emphasis added.) That wording, interpreted in light of the language of the title of chapter 72-311, emphasizes that the intent of the statute is to impose a requirement that all members present east a vote and that the minutes so reflect by either recording a vote or counting a vote for each member.

AFFIRMED.

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