author: COBB, Judge.

text:
    SUN FIRST NATIONAL BANK OF ORLANDO, a National Banking Association, Appellant, v. W. L. GIEGER, a/k/a Wilfred L. Gieger, and Henrietta W. Gieger, his wife, Appellees.
    No. 80-1067.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    As Corrected on Denial of Rehearing Aug. 19, 1981.

      Patrick T. Christiansen of Akerman, Sen-terfitt, Eidson, Orlando, for appellant.
    Ronald L. Sims of Hoffman, Hendry, Stoner, Sims & Sawicki, Orlando, for appel-lee W. L. Gieger.
    Robert F. Evans, Jr., Orlando, for appel-lee Henrietta W. Gieger.
   COBB, Judge.

This is an appeal from an order dissolving a writ of garnishment obtained by the appellant, Sun First National Bank of Orlando, issued against J. Nolan Carter and wife as debtors of the judgment debtor appel-lees, W. L. and Henrietta W. Gieger. The bank had obtained a judgment in the amount of $24,193.17 against the Giegers, and then on March 27, 1980, initiated garnishment proceedings to collect it from the Carters as garnishees. In his answer to the writ, Carter admitted currently owing the Giegers $570.58 due as the first payment on a $47,000 note and mortgage executed to the Giegers on February 21, 1980, for the purchase of the latters’ homestead. The note was amortized over a ten-year period.

In addition to the note and mortgage, the Carters paid the Giegers $16,000 cash as a deposit on the sale. Prior to the sale of the homestead, the Giegers had separated; the cash deposit was divided and Mr. Gieger assigned his interest in the note and mortgage to Mrs. Gieger, who intended to use the payments in the purchase of a new home for herself and two minor children.

The Giegers moved to dissolve the writ on the basis that the mortgage payments were intended by the Giegers to be used for the purchase of á new homestead, to be purchased for $59,000 and, therefore, said mortgage payments were exempt from levy of execution by the Florida Constitution.

The trial court held an evidentiary hearing and, as a result thereof, entered the following order dissolving the writ of garnishment, and it is this order which we review on this appeal:

THIS CAUSE came on to be heard before the Court on the 27th of May, 1980, upon the Motion to Dissolve Garnishment filed by the Defendant, W. L. Gieger, May 2nd, 1980. The Court finds that this case is controlled by Orange Brevard Plumbing & Hearing [sic] Co. v. Lacroix, 137 So.2d 201 (Fla. 1962). The testimony of the parties in this case before the Court indicates that from the sale of their property on Timberlane which was covered by the homestead exemption was sold and $16,000.00 from that sale was put up for a new home costing approximately $59,000.00. The bank has sought to garnish as not being homestead the Nolan Carter mortgage of $21,500.00 which was to be paid over a ten (10) year period on the basis that only cash could be considered. That is, the note and mortgage lost their character as land and because of the time period could not be considered as being applied towards the new homestead. The Orange Brevard case indicates that it is the good faith intention prior to and at the time of the sale of the property covered by the homestead exemption to reinvest the proceeds in another homestead within a reasonable time. Only so much of the proceeds as are intended to be put in another homestead may be exempt and any surplus should go to the general assets of the debtor. The homestead law is liberally construed to allow the homestead exemption for debtors. Since more than the $21,500.00 coming from Nolan Carter will be required to be used toward the securing of the replacement homestead, they should not be penalized because instead of getting all cash at the time of sale of the covered homestead on Timberlane, they received in part a note and mortgage to be applied over a period of time for the replacement homestead. When the Orange Brevard Court indicated the investment had to be within a reasonable time they were considering the time between the sale of the exempt homestead and the purchase of the replacement homestead. Therefore, it is;
CONSIDERED, ORDERED and ADJUDGED that the Bank’s garnishment shall be.and the same is hereby dissolved.
DONE and ORDERED in Chambers at Orlando, Orange County, Florida this 18th day of August, 1980.

We agree with the trial court that this case is controlled by the 1962 opinion of the Florida Supreme Court in the Orange Bre-vard case cited above. In that case, the seller of the homestead was a judgment debtor. At the time of purchase, the buyer withheld $6,000 from the purchase price pending a determination of whether the judgment was a lien on the property involved. A judgment creditor garnished the $6,000 cash while it was in the hands of the buyer’s attorney. The sellers of the homestead then filed a motion to dissolve the writ of garnishment on the ground that the $6,000 was exempt from forced levy as the proceeds from the sale of homestead property. The Orange Brevard court held that the proceeds of a voluntary sale of a homestead were exempt from the claims of creditors, just as the homestead itself was exempt:

[I]f, and only if, the vendor shows, by a preponderance of the evidence an abiding good faith intention prior to and at the time of the sale of the homestead to reinvest the proceeds thereof in another homestead within a reasonable time. Moreover, only so much of the proceeds of the sale as are intended to be reinvested in another homestead may be exempt under this holding. Any surplus over and above that amount should be treated as general assets of the debtor. We further hold that in order to satisfy the requirements of the exemption the funds must not be comingled with other monies of the vendor but must be kept separate and apart and held for the sole purpose of acquiring another home. The proceeds of the sale are not exempt if they are not reinvested in another homestead in a reasonable time or if they are held for the general purposes of the vendor. [Emphasis in the original].

Sun Bank argues that when the exempt homestead property changes its form, it loses it exemption, citing Holmes v. Blazer Financial Services, Inc., 369 So.2d 987 (Fla. 4th DCA 1979), and Hertz v. Fisher, 339 So.2d 1148 (Fla. 3d DCA 1976). These cases are inapposite, because they deal with the scope of the statutory exemption of wages due granted under section 222.11, Florida Statutes (1979). The Orange Brevard case clearly stands for the proposition that homestead property can change into proceeds and still be protected. The issue is whether those proceeds must be cash proceeds in order to come under the protection of Orange Brevard. Sun Bank further cites 40 C.J.S. Homesteads § 72 (1944) for the proposition that the exchange of homestead property for personality does not necessarily exempt the personalty. As explained in Orange Brevard, Florida takes the minority position of protecting the proceeds from the sale of a homestead under the specific circumstances set forth in the above quotes from that case.

Sun Bank cites the case of Olsen v. Simpson, 39 So.2d 801 (Fla. 1949), to support its claim that the appellees are entitled only to a $1,000 personal property exemption, rather than a real property homestead exemption for full value. The case is troublesome. Through a series of assignments, the former wife became the judgment creditor of the former husband. The parties’ former residence was partitioned, and the court held that the husband’s share in the proceeds of the sale was subject to the satisfaction of the judgments held by the wife. The court held that the former husband had only a personal property exemption of $1,000, rather than the full value of his proceeds. The Olsen case, however, is distinguishable from Orange Brevard: In Olsen, there was no mention that the husband intended to reinvest his proceeds into another homestead. Additionally, Orange Brevard is subsequent to Olsen and, to the extent of any conflict, overrules it.

Sun Bank also cites Weiss v. Stone, 220 So.2d 403 (Fla. 3d DCA 1969), a case in which the court refused to apply Orange Brevard because there was no evidence to show that the money used to buy the second property originated from the sale of the first homestead. Weiss could actually be construed to favor the appellees, since in the present case there was evidence that the proceeds from the first homestead were going into the second home.

Orange Brevard requires the homestead seller to show by a preponderance of the evidence a good faith intention, both prior to and at the time of the sale, to reinvest the proceeds of the sale into another homestead within a reasonable time. In the instant case, the trial court implicitly found that such intent existed by its reliance on the Orange Brevard holding in its order to dissolve the writ of garnishment, and the record contains sufficient evidence of that intent to support such a finding.

Though the Giegers had the requisite intent to use the proceeds from the sale of their previous homestead (i. e., the note and mortgage), the case turns, as Sun Bank argues, on the form of the proceeds and the reasonableness of the time within which those proceeds are converted by the Giegers into a new homestead. When a cash sale occurs, the homestead seller no longer possesses a lot with a house on it; instead, his “homestead” is the cash he has in his pocket. During the reasonable period of time given by Orange Brevard to reinvest the proceeds, that cash is exempt from levy. During this period, the only homestead the homestead seller possesses is the cash in his pocket. When the homestead seller finds a new homestead in which to live, under Orange Brevard he must hand over his current “homestead” in order to purchase his new, real-property homestead residence.

In the Orange Brevard holding, the language used was “proceeds” from the sale, not “cash proceeds.” It would seem, then, that non-cash proceeds can be eligible for exemption, so long as they serve the same function that cash proceeds do, /. e., a temporary form of the homestead, to be reinvested, to be converted back into real-property homestead within the Orange Brevard reasonable time period. A note and mortgage may be the “substitute homestead” so long as it is reinvested into a new homestead and the new homestead is purchased within the reasonable time. Payments such as those made to the Giegers during the Orange Brevard reasonable time period would be protected. Obviously, a note and mortgage could be discounted for cash and those cash proceeds invested in the new homestead.

In the present case, the Giegers were attempting to establish a new homestead, and intended to simply use the monthly payments they received from the Carters toward the mortgage payments on the new homestead. However, the Giegers were not able to carry out their intent because of the Sun Bank garnishment. Orange Brevard gives the homestead seller a “reasonable time” to reinvest the proceeds into a new homestead, and that reasonable time period must be determined from the facts and circumstances of each case. Orange Bre-vard at 207.

We cannot agree with the clear implication of the order of the trial court that the Giegers can extend the “reasonable time” for converting proceeds from the sale of one homestead to another up to ten years by the device of amortized mortgage payments they intend, but are not legally obligated, to direct to the new home. Whatever a reasonable time for such conversion may be, it is far less than ten years. On the other hand, we cannot say, under the facts of this case, that the period from the sale to the garnishment (February 21, 1980 to March 28, 1980) was an unreasonable period of time. For that reason, we cannot conclude that the trial judge erred as a matter of law in refusing garnishment at the time he was faced with the decision. However, at some point in time far short of ten years, the time for conversion of proceeds into a new homestead expires — and at that time the bank is entitled to garnish the unconverted and uncommitted proceeds, whether cash, notes, or otherwise. Accordingly, the judgment below is affirmed.

AFFIRMED.

ORFINGER and COWART, JJ., concur.

      . Article X, Section 4, Florida Constitution (1972), provides:
      § 4. Homestead — exemptions
      (a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family:

        (1) A homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family;
      (2) personal property to the value of one thousand dollars. [Emphasis added.]

      . This assumes all other Orange Brevard requirements are followed.


source: Caselaw Access Project

author: ORFINGER, Judge. DAUKSCH, Chief Judge, COWART, Judge, PER CURIAM.

license: Public Domain

text:
    Steve Louis LAUXMAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-55.
    District Court of Appeal of Florida, Fifth District.
    June 24, 1981.
    On Rehearing Aug. 19, 1981.

      James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was arrested for disorderly intoxication, an offense under a city ordinance substantially identical to section 856.-011, Florida Statutes. The search following his arrest disclosed his possession of a controlled substance. After being charged with such possession and having his motion to suppress denied, he pled nolo contendere reserving the right to appeal the denial of his motion to suppress.

The record on appeal satisfies us that when arrested, appellant was intoxicated and was causing a public disturbance. State v. Holden, 299 So.2d 8 (Fla.1974); see T.L.M. v. State, 371 So.2d 688 (Fla. 1st DCA 1979); Sears v. State, 319 So.2d 69 (Fla.2d DCA 1975). The arrest was lawful, as was the search incident to the arrest. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Appellant also contends on appeal that the condition in the order placing him on probation for five years, which requires that he spend weekends in jail during his period of probation, is contrary to Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). In Villery, the Supreme Court held that the maximum period of incarceration which may be imposed as a condition of probation is up to, but not including one year. The condition of incarceration imposed here exceeds that time, so the probation order is vacated, and the case is remanded to the trial court for reconsideration of sentence. Webb v. State, 392 So.2d 35 (Fla. 5th DCA 1980). The judgment of conviction is affirmed.

Conviction AFFIRMED. Sentence VACATED and REMANDED.

DAUKSCH, C. J., concurs and concurs specially with opinion.

COWART, J., dissents with opinion.

DAUKSCH, Chief Judge,

concurring specially:

I concur with the majority opinion and add my thought, in answer to the dissent, that I presume appellate counsel had the full concurrence of the appellant after a complete explanation was made to him of the consequences of the Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), point on appeal. I do not assume appellate counsel is gambling with the future of her client without his knowledge and permission.

COWART, Judge,

dissenting:

After holding that incarceration imposed as a condition of probation or as part of a split sentence is invalid where it equals or exceeds one year and making that holding retroactive, the court in Villery states that one who is under such an order “upon application ” is entitled to have the illegal order corrected. The court further said, “In correcting the order, the trial court has the option either of modifying the order to make it legal or of withdrawing it and imposing a sentence of imprisonment.” It went on to say that, unless a condition of probation was determined to have been violated, the trial court could not “impose a sentence of imprisonment for a period of time in excess of the original total term of probation.” This clearly infers that, even where a condition of probation has not been violated, the trial court can, in correcting a sentence made illegal by Villery, impose a sentence of imprisonment for a period of time not in excess of the original total term of probation.

Villery, in prison on a split sentence, sought a writ of mandamus to compel the Florida Parole and Probation Commission to determine her eligibility for parole. The Florida Supreme Court held that its construction of split sentencing under section 948.01(4), Florida Statutes, and incarceration as a condition of probation under section 948.03(2), Florida Statutes, disposed of the issue and denied the writ of mandamus. Therefore, even Villery’s sentence was not vacated in the appellate court and she was required to initiate the resentencing process by “making application” by petition or motion to the trial court.

As I understand the above quotes from Villery, if a defendant has heretofore been convicted and was given probation for a long period of time with a condition of confinement for one year or more, or a split sentence with confinement for one year or more plus a long period of probation, the sentence is illegal and, upon application for correction, the sentence can be modified by imposing a sentence of confinement that can exceed the original period of confinement and is limited only to the maximum legal sentence provided by law or the originally imposed period of probation, whichever is less.

Split sentencing with confinement in prison for a period in excess of one year has been common in Florida since it was authorized by Ch. 74-112, Laws of Florida (1974), effective July 1, 1974. These split sentences were not contrary to law when imposed and are made “illegal” only by court mandate applied retroactively. Lauxman is typical of how the Villery case is being urged in the appellate courts. Lauxman appealed January 4, 1980, and his initial brief related only to a suppression matter and raised no question relating to the legality of his sentence. After the original Vil-lery opinion was issued October 30,1980, his appellate counsel filed a notice that Laux-man’s sentence appeared to be illegal under Villery. My difference with the majority opinion arises from my concern with the implementation of Villery. As a practical matter it is obvious that, as is common, this question has been raised for the first time on appeal by an alert appellate defense counsel acting on his own initiative and that no trial counsel has discussed with Lauxman the advantages and disadvantages of making an application to have his “illegal” sentence “corrected” by the trial court. In making that, decision there are many factors that should be considered, some of them requiring the expertise of competent counsel experienced in appraising the possible result of being exposed to a longer sentence of confinement than was originally imposed.

It might be difficult for trial counsel to explain to Lauxman how, because his appellate counsel too quickly urged, and the appellate court too eagerly embraced, Villery, Lauxman’s illegal “sentence” to five years on probation with the provision that he spend weekends in jail has been reversed on appeal and that he now faces five straight years in prison. I can understand why such a defendant may prefer “illegal” probation to perfectly legal confinement in prison.

Also, there are substantial constitutional questions raised by a procedure that, after sentencing, subjects an accused to the jeopardy of an increased punishment. See North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); Ex parte Lange, 18 Wall. 163, 173, 85 U.S. 163, 173, 21 L.Ed. 872, 878 (1874).

Appeals are for the purpose of reviewing rulings of trial courts. Consequently, applications for judicial relief should always first be presented to trial courts. Rules of procedure adequately provide for original application in trial courts to review allegedly illegal sentences. It is both the right and the duty of the trial court to first consider such matters. While it is true that the questioned sentence was imposed in the trial court, it was not contrary to law when imposed and the trial court has never had an opportunity to consider a proper sentence for Lauxman in light of the new restrictions imposed by Villery and has not yet denied appellant redress under the rules provided for relief from improper sentences.

For these reasons, I believe application for relief under Villery should not be initiated in the appellate court, but only in the trial court at the specific behest of the defendant. There a defendant can be properly advised, make an informed decision as to his application for relief and by his personal application perhaps waive the constitutional double jeopardy question. After relief is denied in the trial court will be soon enough for review on appeal. I would affirm Lauxman’s adjudication of guilt without prejudice to his right to make application to the trial court for relief from his sentence.

ON MOTION FOR REHEARING

PER CURIAM.

By petition for rehearing, appellant advises the court that the trial judge had previously amended the sentence so that it does not conflict with Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). We therefore grant the petition for rehearing, and amend the opinion originally issued in this case by deleting from it any reference to appellant’s sentence or any requirement to resentence appellant. Appellant’s conviction stands affirmed.

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

      . See Fla.R.Crim.P. 3.800(a) and 3.850. Some Villery questions are reaching the appellate court by this route. See, e. g., Alexander v. State, 399 So.2d 424 (Fla. 5th DCA 1981); Baley v. State, 396 So.2d 810 (Fla. 5th DCA 1981).


author: DANIEL S. PEARSON, Judge.

text:
    James Eric KNIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1287.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 8, 1981.

      Bennett H. Brummer, Public Defender and Douglas D. Stratton, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Sufficient evidence of corpus de-licti is not only a predicate to the admission of a confession, see State v. Allen, 335 So.2d 823 (Fla.1976); Ruiz v. State, 388 So.2d 610 (Fla. 3d DCA 1980); Ussery v. State, 382 So.2d 380 (Fla. 3d DCA 1980); McQueen v. State, 304 So.2d 501 (Fla. 4th DCA 1974), but is, as well, a sine qua non of conviction. Tucker v. State, 64 Fla. 518, 59 So. 941 (1912). Accord, Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); State v. Allen, supra; Lambright v. State, 34 Fla. 564, 16 So. 582 (1894); Ruiz v. State, supra. Thus, Knight’s failure to object to the introduction of his confession on the ground that the corpus delicti was not established is not fatal to his present claim that he was entitled to judgment of acquittal on the robbery count if, as he contends, conviction were rendered on the confession alone. The distinct rule of sufficiency upon which Knight relies is founded on

“... a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigation which extends beyond the words of the accused. Confessions may be unreliable because they are coerced or induced, and although separate doctrines exclude involuntary confession from consideration by the jury [citations omitted], further caution is warranted because the accused may be unable to establish the involuntary nature of his statements. Moreover, though a statement may not be ‘involuntary’ within the meaning of this exclusionary rule, still its reliability may be suspect if it is under the pressure of a police investigator— whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past. Finally, the experience of the courts, the police and the medical profession recount a number of false confessions voluntarily made [citation omitted]. These are the considerations which justify a restriction on the power of the jury to convict, for this experience with confessions is not shared by the average juror.” Smith v. United States, 348 U.S. at 153, 75 S.Ct. at 197.

But while Knight did not waive his right to assail his conviction, his attack is unavailing, since there was sufficient evidence to establish, independent of the confession, that the specific crime of robbery charged in the information had been committed.

All other points on appeal being either without merit or not preserved below, Knight’s convictions for first-degree murder and robbery are

Affirmed.

      . The concerns underlying the prophylactic rule precluding a conviction solely on a confession are not the same where, for example, the defendant’s testimony at trial is used to supply the missing proof of corpus delicti, see Alvarez v. State, 403 So.2d 1005 (Fla. 3d DCA 1981) or where res gestae statements made by the defendant supply the proof of corpus delicti, see State v. Snowden, 345 So.2d 856 (Fla. 1st DCA 1977). In the latter instances, the statements made by the defendant are not induced by possible police pressure and thus are not of suspect reliability.

      . The victim was found dead from strangulation and battering, his wallet and its contents removed from his person. These circumstances clearly tended to show that a robbery of the victim occurred, and therefore established the corpus delicti. See Ussery v. State, supra. The corpus delicti, in conjunction with the completely consistent and detailed confession of Knight, was more than adequate to prove the guilt of the defendant beyond a reasonable doubt.


author: PER CURIAM. FERGUSON, Judge,

text:
    Aida DOMENECH, individually and as personal representative of the Estate of Eliseo Domenech, and Elida Perez, Appellants, v. GENERAL MOTORS CORPORATION, a foreign corporation, Appellee.
    No. 79-2422, 80-895.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 9, 1981.
    Stabinski, Funt, Levine & Vega and Regina F. Zelonker, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Otis Smith, for appellee.
    Before BARKDULL and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The appellants’ failure to offer proof sufficient to raise a jury question as to whether the design of the GM Step-Van, which allegedly caused her husband’s death, was defective so as to cause an unreasonable risk of foreseeable injury, Ford Motor Co. v. Evancho, 327 So.2d 201 (Fla.1976), requires us to affirm the directed verdict entered in favor of General Motors Corporation. See Aetna Life & Casualty Company v. Little, 384 So.2d 213 (Fla. 4th DCA 1980); Keyes Company v. Arvida Corporation, 360 So.2d 427 (Fla. 3d DCA 1978). The appellants’ other points on appeal are equally without merit.

Affirmed.

FERGUSON, Judge,

dissenting.

I am not certain that a jury of six reasonable people would come to a different conclusion from that reached by the learned trial judge. Nonetheless, the entire record shows sufficient evidence to survive a motion for directed verdict. It is only in the absence of any evidence that a court should direct a verdict for a defendant. If the evidence is conflicting, or where it may lead to different reasonable inferences, or if there is evidence tending to prove the issue, it should be submitted to the jury as a question of fact, and not taken from them to be passed upon by the judge as a question of law. Hendricks v. Daley, 208 So.2d 101 (Fla.1968); Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981); Behar v. Root, 393 So.2d 1169 (Fla. 3d DCA 1981); Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 347 (Fla.1979); Tiny’s Liquors Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1977).

I would reverse and remand for a new trial.


author: PER CURIAM.

text:
    Maria C. NAVARRO and Fernando Navarro, Appellants, v. CITY OF MIAMI, a Political Subdivision of the State of Florida, Appellee.
    Nos. 80-756, 80-1051.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    As Modified on Denial of Rehearing Sept. 11, 1981.
    Greene & Cooper and Joan M. Bolotin, Sidney A. Goldberg and Mark R. Baer, Miami, for appellants.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellee.
    Before HUBBART, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

It appearing that there was sufficient, although conflicting, evidence in the record tending to support the jury verdict rendered in favor of Maria and Fernando Navarro, we must reverse the judgment and cost judgment entered in favor of the City of Miami, notwithstanding the verdict. Hilkmeyer v. Latin American Air Cargo Expediters, 94 So.2d 821 (Fla.1957); Mullis v. City of Miami, 60 So.2d 174 (Fla.1952); Packer v. Winston Towers One Hundred Association, Inc., 377 So.2d 46 (Fla.3d DCA 1979). However, we remand the cause to the trial court to rule upon the City’s motion for new trial, which motion the trial court was apparently inclined to grant, but erroneously believed was mooted by the entry of the judgment n.o.v. Instead, a ruling on the motion for new trial should have been made as an alternative to the judgment entered. Kaufman v. Sweet et al. Corporation, 144 So.2d 515 (Fla.3d DCA 1962). In the event the trial court determines not to grant a new trial, then we direct that it enter judgment in favor of Maria and Fernando Navarro in accordance with the jury verdict.

Reversed and remanded for further proceedings.


author: HENDRY, Judge.

text:
    Joseph GRADY, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF COSMETOLOGY, of the State of Florida, Appellee.
    No. 80-1852.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 8, 1981.

      Harlan Street and Sanford Freedman, North Miami, for appellant.
    Jim Smith, Atty. Gen. and Susan Tully, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   HENDRY, Judge.

We are asked on this appeal to review the Florida Board of Cosmetology’s decision that the practice of esthetics requires a cosmetologist’s license under chapter 477, Florida Statutes (1979).

Appellant, an esthetician licensed in another state, requested the Florida Board of Cosmetology to issue a Section 120.565 declaratory statement determining whether the providing of skin care services known as “esthetics” is exempt from those activities defined and regulated by the Board under chapter 477. By final order, the Board concluded that the practice of esthetics falls within the statutory definition of cosmetology when performed on the head, face, or scalp.

Section 477.013(6) defines cosmetology to mean:

the mechanical or chemical treatment of the head, face, and scalp for aesthetic rather than medical purposes, including but not limited to, hair shampooing, hair cutting, hair arranging, hair coloring, permanent waving, hair relaxing, or hair removing, for compensation.

The statute plainly provides that cosmetology includes the mechanical or chemical treatment of the head, face, and scalp. Conversely, the statute also limits the definition of cosmetology to the specified forms of treatment to the enumerated anatomical regions. In the present case, neither the parties’ statements of the facts nor the record give any indication to this court whether or not appellant’s “esthetic” activities are described by the definition quoted above. The burden is, and must always remain, on an appellant to demonstrate why a lower Board or tribunal was in error in applying the law to the facts. Bolick v. Sperry, 82 So.2d 374 (Fla.1955); Ruotal Corp., N. W., Inc. v. Ottati, 391 So.2d 308 (Fla. 4th DCA 1980); Forster v. Fishermen’s Hospital, Inc., 363 So.2d 840 (Fla.3d DCA 1978), cert. denied, 376 So.2d 71 (Fla. 1979); Strate v. Strate, 328 So.2d 29 (Fla.3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976); Gars v. Woodard, 214 So.2d 385 (Fla.3d DCA 1968). Dean v. Marineways, Inc. of Ft. Lauderdale, 146 So.2d 577 (Fla.2d DCA 1962).

[T]he rule is well settled that a judgment comes to the appellate court with a presumption of correctness and where it is based partially or wholly on evidence which does not appear in the record on appeal, the judgment will not be disturbed.

Carroll v. Allen, 219 So.2d 69, 71 (Fla. 4th DCA 1969). Cruz v. Beckham, 267 So.2d 853 (Fla.3d DCA 1972). Specifically, appellant has failed to provide any facts to this court suggesting that his “esthetic” services do or do not involve mechanical or chemical treatment of the head, face or scalp of his client. The construction of a statute by an agency or body charged with its administration is entitled to great weight and will not be overturned unless clearly erroneous. Ft. Pierce Utilities v. Florida Public Service Commission, 388 So.2d 1031 (Fla.1980); State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla. 1973); Baeza v. Pan American/National Airlines, Inc., 392 So.2d 920 (Fla.3d DCA 1980). We therefore have no alternative but to accept the Board’s decision that the definition of cosmetology actually includes appellant’s activities as an esthetician. See Morgan v. Kearney, 395 So.2d 570 (Fla. 4th DCA 1981).

Appellant has also raised certain constitutional challenges to the Board’s licensing and testing procedures under chapter 477, asserting insufficient testing standards and an improper delegation of power to the Board. This court is unable to resolve such claims in the absence of an actual controversy between the parties arising from such licensing and testing procedures. In the present case, the Board has neither tested appellant nor denied him a license, and therefore, appellant’s constitutional claims are not ripe for review.

Accordingly, we affirm the decision by the Board applying the definition of cosmetology to appellant’s “esthetic” activities, on the ground that appellant has failed to provide us with any basis for a contrary ruling. Appellant’s constitutional challenges to the Board’s testing and licensing procedures are premature and not subject to review at this .time.

Affirmed.


text:
    Gloria FISHMAN, Appellant, v. Newton FISHMAN, Appellee.
    No. 80-2032.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 8, 1981.
    Richard B. Marx and Gary L. Lancaster, Miami, for appellant.
    Stephen H. Butter, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

This is an appeal by the wife from an amended final judgment dissolving the bonds of matrimony between the parties and adjudicating the marital property rights.

Appellant’s principal contention is that the trial court erred in failing to award her a special equity in certain real and personal property in which she was claiming an interest.

We have considered all points on appeal in the light of the record and briefs and have concluded that no reversible error has been demonstrated, therefore the judgment appealed should be affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Sommese v. Sommese, 324 So.2d 647 (Fla. 1st DCA 1976).

Affirmed.


text:
    Stephen SMITH and Tina Smith, his wife, Appellants, v. Edward LANDY and Sandra Landy, his wife, Appellees.
    No. 80-2434.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 8, 1981.
    Howard L. Kuker, Miami, for appellants.
    Edward Landy, in pro. per.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the judgment of the trial court which, inter alia, denied the appellants’ demand for acceleration of mortgage amounts due and foreclosure of the Landys’ rights in the mortgaged real property upon a holding that (1) the appellants have failed to demonstrate that the trial court abused its discretion, there being evidence (/. e., Mr. Smith’s own testimony that the Landys were “always” late in making mortgage payments) from which the trial court could have concluded that the Smiths, having acquiesced in this lateness, were es-topped from asserting their right to acceleration and foreclosure without first giving the Landys notice of their intention to declare a default, see Commercial Credit Co., Inc. v. Willis, 126 Fla. 444, 171 So. 304 (1936); Jaudon v. Equitable Life Assurance Society of United States, 102 Fla. 782, 136 So. 517 (1931); Northside Bank of Miami v. LaMelle, 380 So.2d 1322 (Fla. 3d DCA 1980); Montgomery Enterprises, Inc. v. Atlantic National Bank of Jacksonville, 338 So.2d 1078 (Fla. 1st DCA 1976); Koschorek v. Fischer, 145 So.2d 755 (Fla. 2d DCA 1962); (2) this result is unaffected by the failure of the Landys to specifically plead estoppel as an affirmative defense where the issue of estoppel was supported by evidence and tried by the implicit consent of the parties, Fla.R.Civ.P. 1.190(b); cf. Thompson v. Gross, 353 So.2d 191 (Fla. 3d DCA 1977) (no error in allowing defendants to amend pleadings to conform with the evidence to reflect affirmative defense of estoppel).

Affirmed.


text:
    Edward Alan Otis BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-612.
    District Court of Appeal of Florida, Third District.
    July 7, 1981.
    Rehearing Denied Sept. 9, 1981.
    Edward Alan Otis Bell, in pro. per.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

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


author: QRFINGER, Judge. COWART, Judge,

text:
    ORLANDO EXECUTIVE PARK, INC., and The Howard Johnson Company, Appellants/Cross Appellees, v. P. D. R., Appellee/Cross Appellant.
    No. 79-1743/T4-706.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.
    Rehearing Denied Aug. 11, 1981.

      Ronald M. Owen of Parker, Johnson, Owen & McGuire, Orlando, for appellant/cross appellee Orlando Executive Park, Inc.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellant/cross appellee the Howard Johnson Co.
    Charles R. Morgan of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for ap-pellee/cross appellant.
   QRFINGER, Judge.

In an action for damages brought by appellee against the appellants, Orlando Executive Park, Inc. (OEP), and Howard Johnson Company (HJ), the jury returned a verdict for the appellee in the amount of $750,000 as compensatory damages against both defendants jointly, and awarded punitive damages in the amount of $500,000 against each defendant separately. Upon defendants’ post-trial motions for directed verdict, the trial judge directed verdicts in favor of the defendants on the punitive damage claims, but denied a motion for new trial, remittitur or directed verdict on the claim for compensatory damages. The defendants have appealed the final judgment for compensatory damages, and the plaintiff has cross-appealed the order directing verdict on the punitive damage claim.

The factual circumstances giving rise to this litigation, viewed in the light most favorable to the plaintiff, follow: Plaintiff a 33 year-old married woman, and the mother of a small child, was employed as a supervisor for a restaurant chain. Her duties required that she travel occasionally to Orlando and because of the distance from her home, she stayed overnight in the Orlando area on those occasions.

On October 22, 1975, she was in Orlando performing the duties of her employment. She telephoned the Howard Johnson's Motor Lodge involved in this action at approximately 9:30 P.M. and made a room reservation. Approximately ten minutes later she left the restaurant and drove directly to the motor lodge. When she arrived, she signed the registration form which had already been filled out by the desk clerk and was directed to her room which was located on the ground level in building “A”, the first building behind the registration office. Plaintiff parked her car, went to her room and left her suitcase there. She then went back to her car to get some papers and when starting back to her room, she noticed a man standing in a walkway behind the registration office. Having reentered the building and while proceeding back along the interior hallway to her room, she was accosted by the man she had seen behind the registration office, who struck her very hard in the throat and on the back of her neck and then choked her until she became unconscious. When consciousness returned, plaintiff found herself lying on the floor of the hallway with her assailant sitting on top of her, grabbing her throat. Plaintiff was physically unable to speak and lapsed into an unconscious or semi-conscious state. Her assailant stripped her jewelry from her and then dragged her down the hallway to a place beneath a secluded stairwell, where he kicked her and brutally forced her to perform an unnatural sex act. He then disappeared in the night and has never been identified.

Plaintiff’s action for damages was based on her claim that defendants owed her the legal duty to exercise reasonable care for her safety while she was a guest on the premises. And she alleged that this duty had been breached by, inter alia, allowing the building to remain open and available to anyone who cared to enter, by failing to have adequate security on the premises either on the night in question or prior thereto so as to deter criminal activity against guests which had occurred before and which could foreseeably occur again, failing to install TV monitoring equipment in the public areas of the motel to deter criminal activity, failing to establish and enforce standards of operation at the lodge which would protect guests from physical attack and theft of property, and failure to warn plaintiff that there had been prior criminal activity on the premises and that such activity would or might constitute a threat to her safety on the premises.

There was evidence submitted tending to show serious physical and psychological injury as a result of this assault which was susceptible of the conclusion that within a year following the assault, plaintiff lost her job because of memory lapses, mental confusion and inability to tolerate and communicate with people. There was evidence from which the jury could conclude that this injury was permanent and that she would require expensive, long-term medical and psychiatric treatment, and that she had suffered a great loss in her earning capacity-

The motor lodge is a part of a large complex known as “Howard Johnson’s Plaza” located just off Interstate 4. The complex includes a Howard Johnson’s Restaurant, the Howard Johnson’s Motor Lodge, a pub, an adult theater, and five office buildings. The motor lodge contains approximately three hundred guest rooms in six separate buildings, plus a registration office, and it was owned and operated by defendant Orlando Executive Park, Inc., under a license agreement with the parent, company, Howard Johnson Company. The restaurant, the pub and the adult theater on the property were operated by the defendant, Howard Johnson Company. Approximately 75% of the Howard Johnson motor lodges throughout the country are owned and operated by licensees. The Howard Johnson Company never established any standards or procedures to be followed by licensees relating to the matter of guest security, although it has established such procedures for the lodges which it owns and operates. Each licensee handled that problem as it deemed best.

There was no regular security force at the motor lodge, nor were there other security devices such as TV monitors in hallways or other common areas. One security guard was employed from time to time, on a sporadic basis. For the six-month period prior to the incident in question, management of the motor lodge was aware of approximately thirty criminal incidents occurring on the premises. While most of these involved burglary, some of them involved direct attacks upon the guests. Following one of the attacks, approximately ten weeks prior to the incident in question, the motor lodge owners had hired a full-time security guard, but he was terminated a short time later. Anticipating high occupancy, one security, guard had been employed for the evening in question commencing at 10:00 P.M. While it is not clear whether the attack occurred during the period this guard was on duty, the jury could have concluded that he was not on duty at the time, although he was on the premises becoming familiar with the layout because he had never been on the property before. Additionally, the evidence indicated that the guard had been employed to patrol the parking areas, and not the motor lodge buildings. The security service which provided the guards from time to time, had recommended the employment of two to three guards on a full-time basis. Plaintiff’s security expert testified that three guards on staggered shifts would be necessary to deter criminal activity, although he agreed that there were no industry standards for security guards and that it was impossible to say that the assault would not have occurred if three guards had been on the premises. He did, however, testify that in his opinion, a proper security force would serve as a deterrent to this type of activity and the chance of this happening would be slight.

1. LIABILITY OF ORLANDO EXECUTIVE PARK, INC.

It seems clear in Florida registered guests in a hotel or motel are business invitees to whom the hotel or motel owes a duty of reasonable care for their safety. Phillips Petroleum Company of Bartlesville, Oklahoma v. Dorn, 292 So.2d 429 (Fla. 4th DCA 1974). While recognizing this principle and conceding this duty, appellants say, nevertheless, that there is no evidence of a breach of their duty, since the injury to appellee was caused by the criminal act of a stranger, thus acting as an intervening efficient cause for which they are not responsible.

The evidence clearly shows numerous criminal activities on the premises in the six-month period immediately prior to this occurrence. The testimony of a security expert produced by plaintiff indicated adequate security at this motor lodge required the presence of at least three full-time security guards. Thus the question becomes one of foreseeability. Could a jury, under the facts of this case reasonably conclude that the absence of adequate security would lead to the robbery and attack here? Such is ordinarily a question for the jury. Rosier v. Gainesville Inns Associates, Ltd., 347 So.2d 1100 (Fla. 1st DCA 1977).

Several courts in similar or analagous situations have discussed the questions raised here. In Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980), the plaintiff’s decedent was raped and murdered while a tenant in defendant’s apartment complex. The crime was committed by an intruder, believed to be co-tenant. The basis of plaintiff’s action against the landlord was its alleged negligent failure to provide reasonable security measures in the building’s common areas. There, as here, the defendants argued that they were not responsible for the results of criminal conduct of third persons. In reversing a summary judgment for the defendant, the court said:

Particularly in view of the evidence concerning the past record, and therefore the future foreseeability of violent crime at its premises, a jury could properly find that a discharge of the landlord’s duty to keep the common areas reasonably safe required that a guard or other security measures be provided at the complex, in order to prevent just such a tragic incident as the one involved in this case.
* % sfc * * *
Under our system, it is peculiarly a jury function to determine what precautions are reasonably required in the exercise of a particular duty of due care.
* * * * sfc *
We first reject, as entirely fallacious, the defendant’s claim that the brutal and deliberate act of the rapist-murderer constituted an “independent intervening cause” which served to insulate it from liability. It is well-established that if the reasonable possibility of the intervention, criminal or otherwise, of a third party is the avoidable risk of harm which itself causes one to be deemed negligent, the occurrence of that very conduct cannot be a superseding cause of a subsequent misadventure. As said in Restatement (Second) of Torts, § 449 (1965):
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby, (emphasis supplied.)
******
See also, W. Prosser, Torts, supra, § 44, at 275, nn. 20-21. The application of this principle to the case at bar is obvious. Since Mt Zion is liable, if at all, for only failing to protect its tenant from a criminal attack, it cannot escape responsibility because the attack has actually taken place, (emphasis supplied).

Id. at 101. In a suit for damages arising out of a robbery and rape in a hotel room, the court, in Nordmann v. National Hotel Company, 425 F.2d 1103 (5th Cir. 1970), summarized its holding thusly:

The evidence was ample to support the jury’s verdict. For its twelve hundred rooms, and with a large ball in progress, the hotel had on duty at the time of the robbery and assault only one security officer, one room clerk and one bell boy. The jury could, with reason, determine that the defendants had failed to perform their general duty to protect their guests.

Id. at 1107.

Appellant continues, however, with its argument that there was no evidence that security was inadequate or more to the point, that any specific quantity of security guards or other measures would have prevented this robbery and attack. They say that since there are no standards for security in the motel industry, there is no way for a jury to determine the reasonableness (or unreasonableness) of any particular security measure. The absence of industry standards does not insulate the defendants from liability when there is credible evidence presented to the jury pointing to measures reasonably available to deter incidents of this kind, against which the jury can judge the reasonableness of the measures taken in this case.

Obviously, a six-unit, one building “Mom and Pop” motel will not have the same security problems as a large highrise thousand room hotel, or of a three hundred room motor lodge spread out over six buildings. Each presents a peculiar security problem of its own. How the means necessary to fulfill the duty of care varies with the peculiar circumstances of each case is explained by the Wisconsin Supreme Court in Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 278 N.W.2d 208 (1979) in the following language which we approve:

Thus, in meeting its standard of ordinary care a hotel must provide security commensurate with the facts and circumstances that are or should be apparent to the ordinarily prudent person. In other words, an innkeeper’s standard of care in providing security will vary according to the particular circumstances and location of the hotel.
Accordingly, as the degree of care that an innkeeper must exercise will vary in relation to the attendant circumstances, relevant factors in deciding whether a hotel has exercised ordinary care in providing adequate security are: industry standards, the community’s crime rate, the extent of assaultive or criminal activity in the area or in similar business enterprises, the presence of suspicious persons, and the peculiar security problems posed by the hotel’s design. A hotel’s liability depends upon the danger to be apprehended and the presence or absence of security measures designed to meet the danger. The particular circumstances may require one or more of the following safety measures: a security force, closed circuit television surveillance, dead bolt and chain locks on the individual rooms as well as security doors on hotel entrance-ways removed from the lobby area.

Id. at 212. See also Yamada v. Hilton Hotel Corporation, 60 Ill.App.3d 101, 17 Ill.Dec. 228, 376 N.E.2d 227 (1977).

The reference to these standards is not to be interpreted as an opinion of this court that the absence of any of the mentioned security measures will result in a finding of liability of the innkeeper, because this is not the test. We only intend to say that the jury may consider competent evidence on the need or effect of any of these security measures or combination thereof in the context of the circumstances and evidence before it, in determining whether the innkeeper has met his duty of providing his guest with reasonable protection for his safety.

Here, the jury had the right to consider that the size and layout of the complex, its various accessory uses and the apparent ease of entrance into the motel buildings, and could have concluded that these factors required some security measures. They could also conclude from the evidence that the type of activity within the complex increased the security risk and that no security was provided at the time of this attack.

And while appellant suggests plaintiff was required to show the attack would have been prevented had reasonable measures been taken, this is not the test. Causation, like any other element of plaintiff’s case, need not be demonstrated by conclusive proof:

and it is enough that [plaintiff] introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant, than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise.

W. Prosser, Law of Torts, § 41 at 242 (4th Ed. 1977). Plaintiff adduced evidence that reasonable measures were not taken. Expert testimony, as well as reasonable inferences from the suggested measures, allowed a conclusion that the chance of this attack was “slight” had reasonable measures been taken.- Thus the question of whether defendant’s negligence was the proximate cause of plaintiff’s injury was properly a jury question. See Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187, 1189 (Fla.1977); Yamada v. Hilton Hotel Corp., 17 Ill.Dec. at 233, 376 N.E.2d at 232.

Plaintiff also proved that the area under the stairwell where she was dragged was dark and secluded and was in itself a security hazard which should have been boarded up as had other similar stairwells in the mote!. OEP management actively discouraged criminal investigations by sheriff’s deputies, minimizing any deterrent effect they may have had. Thus, the totality of the circumstances presented a jury question regarding causation. See Rosier v. Gainesville Inns Assoc. Ltd. It cannot be said that there was a complete absence of probative facts to support the jury’s conclusion. See Yamada v. Hilton Hotel Corp., 17 Ill.Dec. at 233, 376 N.E.2d at 232.

Appellants rely on cases such as Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980), Burnsed v. ABC Liquors, Inc., 393 So.2d 7 (Fla. 1st DCA 1980) and Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980), but they are all distinguishable. In Worth, unlike the case sub judice, there was no proof that the violent acts were foreseeable. Burnsed was a per curiam decision with no opinion. The dissent gives us a clue as to the facts, but no insight into the reasons for the majority opinion. From the facts in the dissent, the case could very well have turned on the issue of foreseeability and proximate cause. Likewise, Relye a turned on the absence of proof that any prior, similar criminal acts had ever occurred on the campus so as to create an issue as to the foreseeability of the attack in question. Thus, these cases are all inapposite.

Appellants next contend that the verdict for compensatory damages is excessive and that the trial court erred in not granting its motion for remittitur. Where the trial court denies a motion for remittitur, this strengthens the presumption of correctness of the jury verdict and the trial court can be reversed on appeal only for an abuse of discretion. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977). When ordering a remittitur, the amount of excess must be clearly determinable from facts in the record, Wackenhut Corp. v. Canty, 359 So.2d 430, 434 (Fla.1978), or there must be an apparently high verdict coupled with extrinsic evidence of improper influence. Lassitter. Here, there was evidence that substantial future medical expenses would be incurred, there was testimony that plaintiff’s future loss of earnings could be in excess of $600,000, which, coupled with evidence of the injury itself and plaintiff’s pain and mental anguish, supports the jury’s verdict. There is no showing that the award exceeds the maximum limit of the reasonable range within which a jury may operate. Bould v. Touchette, 349 So.2d 1181 (Fla.1977).

II. LIABILITY OF HOWARD JOHNSON COMPANY

Appellant Howard Johnson Company contends that the trial court erred in not granting its motion for directed verdict. Appellee proceeded against this appellant on the theory of apparent agency. Appellant argues strongly that the evidence fails to show any control or right of control by HJ over the operation of the motel, but while this argument may be relevant to a claim of actual agency, it has no relevance to the theory of apparent agency. Appellee sought damages against HJ solely on the apparent agency doctrine, and the jury was so instructed.

The doctrine of apparent agency, sometimes referred to as agency by es-toppel, consists of three primary elements: (1) a representation by the principal; (2) reliance on that representation by a third person; and (3) a change of position by the third person in reliance upon such representation to his detriment. The principal is estopped to deny the authority of the agent, because he has permitted the appearance of authority in the agent and thereby justified the third party in relying on that appearance of authority as though it were actually conferred upon the agent. 2 Fla.Jur.2d, Agency and Employment, sec. 36 (1977). Put another way,

Where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent, the principal is estopped, as against such third person, from denying the agent’s authority.

T. G. Bush Grocery Co. v. Conely, 61 Fla. 131, 55 So. 867, 869 (1911); Hertz International, Ltd. v. Richardson, 317 So.2d 824, 827, (Fla.3d DCA 1975).

HJ attacks the verdict of the jury by arguing that (1) there was insufficient evidence of representations by it, and (2) there was insufficient evidence of reliance by plaintiff. We will address both issues.

Appellant asserts that the only representations of HJ to be considered are the sign announcing the lodge as a “Howard Johnson’s,” and the distinctive color scheme. Appellant correctly points out that gas station signs alone do not make a gas station operator a general agent of the oil company. Cawthon v. Phillips Petroleum Co., 124 So.2d 517 (Fla.2d DCA 1960). The reason for this is that it is common knowledge that gas station operators are independent contractors, and “these signs and emblems represent no more than notice to a motorist that a given company’s products are being marketed at the station.” Coe v. Esau, 377 P.2d 815 (Okl.1963); accord, Cawthon v. Phillips Petroleum Co.. Thus, the “representation” made by service station signs is only that a certain kind of gasoline is sold, not that the operator is an agent for the oil company with respect to any standard of service, car repair, or maintenance of premises. In Cawthon, Phillips’ advertisements (for products sold at “Phillips” gasoline stations) did not subject Phillips to liability for a station operator’s negligent brake repair, because

There appeared in the advertisement no statement that mechanical or repair services were solicited or offered by the oil company or its employees or agents; neither did the advertisement indicate agency.

124 So.2d at 521.

While OEP might not be HJ’s agent for all purposes, the signs, national advertising, uniformity of building design and color schemes allows the public to assume that this and other similar motor lodges are under the same ownership. A HJ official testified that it was the HJ marketing strategy to appear as a “chain that sells a product across the nation.” Additionally, the license agreement between HJ and OEP clearly gives HJ the right to control the architectural design and the “standards of operation and service ... and the licensee agrees at all times to conform to such standards.”

Florida has adopted section 267 of the Restatement (Second) of Agency (1958), which says:

One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of one appearing to be a servant or other agent as if he were such.

See Mercury Cab Owners Association v. Jones, 79 So.2d 782 (Fla.1955).

There was sufficient evidence for the jury to reasonably conclude that HJ represented to the traveling public that it could expect a particular level of service at a Howard Johnson Motor Lodge. The uniformity of signs, design and color scheme easily leads the public to believe that each motor lodge is under common ownership or conforms to common standards, and the jury could find they are intended to do so. See Sapp v. City of Tallahassee, 348 So.2d 363 (Fla. 1st DCA 1977); Wood v. Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975); Drexel v. Union Prescription Center, Inc., 582 F.2d 781 (3d Cir. 1978).

On the question of reliance, the jury had a right to conclude that appellee believed exactly what appellant wanted her to believe, i.e., that she was dealing with Howard Johnson’s, “a chain that sells a product across the nation.” Appellee testified that when she realized her need for a room, she called the Howard Johnson Motor Lodge. She had stayed there once before. Thus, she was calling a specifically identified establishment, not just any motel. She also testified that she was not aware that any of the HJ motels were individually owned, but assumed “they were Howard Johnson’s”. While more could have been presented, we believe that this, coupled with the evidence of the extensive efforts of HJ to market a uniform product, presented an issue to the jury on the question of reliance which they obviously resolved in appellee’s favor. In Economy Cabs v. Kirkland, 127 Fla. 867, 174 So. 222 (1937), a passenger in a taxicab was injured and sued the company whose name was carried on the cab. The passenger had telephoned this company, and a cab bearing the colors and insignia of the company responded. The suit was defended on the ground that this taxicab, like some others, was in reality owned and operated by a third party, hence the company was not liable. Justice Terrell, in speaking for the court, said:

Under such state of facts the law will presume as to the public generally and the plaintiff that defendant cab and driver were a common carrier for hire and in the service of the company whose name it bore. One of the first principles of horn-book law we were taught in the law school was that for every wrong the law provides a remedy. If the law is to be circumvented by litigants as proposed here, then we were taught a futile lesson. They should not be permitted to parade under a flag of truce to garner a profit and then raise the black flag when called on to make restitution for damage perpetrated. (emphasis added).
Third parties who happen to own a cab and use it in the name of the company at the call of the company and under the colors of the company will be treated as the company.
* * * * * *

174 So. at 224. See also, Sapp v. City of Tallahassee, supra.

Appellant’s remaining points on appeal have been considered and are without merit.

Appellee cross appeals the action of the trial court in granting appellant’s motion to set aside the punitive damage award. The trial court found that the evidence and reasonable inferences thereon, viewed in the light most favorable to appel-lee, were insufficient to support the award of punitive damages against either defendant. We do not find the conduct of defendants to be of such egregious nature as to support a punitive damage award. See Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936); A-T-O, Inc. v. Garcia, 374 So.2d 533 (Fla. 3d DCA 1979).

The judgment appealed from is AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

The majority opinion effectively imposes a form of strict liability upon landowners and businesses. It is axiomatic that a person’s duty should not be greater than his ability to meet that duty. Security measures in businesses and homes may increase a potential assailant’s perception of his risk of apprehension and thereby discourage or deter some persons sometimes; however, they do not, and cannot, prevent a particular assault made without warning by a determined assailant in an area commonly open to the public. Therefore, any duty of care should be likewise limited. By imposing liability for failing to take reasonable security precautions without requiring that the assault would have been (not might have been) prevented by taking those precautions, the majority has effectively eliminated any real requirement of proximate cause and foreseeability in actions of this type.

The majority opinion is applicable far beyond the facts of this case. Since ail landowners owe a general duty of care to their invitees, the existence of prior criminal activity of an assaultive nature on their property, or in the area, under the majority view, makes a similar assault on every invitee reasonably foreseeable and thereby subjects every landowner to liability if “reasonable precautions” were not taken regardless of whether the precautions would have prevented the assault. Simple justice is for the assault victim to be paid; for the assailant to pay; and for the innkeeper to not have to pay. To hold landowners, lessees and franchisors liable for injuries which they did not have the opportunity or power to prevent in the hope that society generally will benefit from frantic but futile attempts to buy “security” to meet this impossible duty goes beyond mere fallacy and is both legally and morally wrong. See the special concurring opinion in Reichenbach v. Days Inn, Inc., 401 So.2d 1366 (Fla. 5th DCA 1981).

      . She had stayed at this same motor lodge approximately one week earlier. Arrange-merits had been made for the billing of her room charges directly to her employer.

      . Although aware of a formal request by plaintiffs attorneys to produce records of criminal incidents pre-dating this six-month period, after the trial court ordered production of these records, defendant’s agent admitted that she had ordered them to be destroyed. The court instructed the jury that they could infer from this action that the evidence suppressed would have been unfavorable to the party who destroyed it. While appellants appeal the giving of this instruction, we do not consider this point because it was not properly preserved for review.

      . This question, one of causation, should be distinguished from a plaintiffs initial burden of demonstrating a duty to take reasonable measures against foreseeable criminal activity. If the criminal activity is not foreseeable, no duty arises. See Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980). Defendants in this case stipulated that they were on notice of criminal activity, admitting the duty to take reasonable measures against this type of attack.

      . In agreeing that a jury question was presented on the security issue, the court re-stated the traditional rule on intervening cause:
      While the question of proximate cause in a negligence action is one for the court where there is an active and efficient intervening cause, Nance v. James Archer Smith Hospital, Inc., 329 So.2d 377 (Fla.3d DCA 1976), still if such intervening cause is either foreseeable or might reasonably have been foreseen by the defendant, his negligence may be considered the proximate cause of the injury notwithstanding the intervening cause.
      347 So.2d at 1102.

      . It is important to note that the doctrine rests on appearances created by the principal rather than on appearances created by the agent. Owen Industries, Inc., v. Taylor, 354 So.2d 1259 (Fla.2d DCA 1978).

      . B.P. Oil Corp. v. Mabe, 279 Md. 632, 370 A.2d 554 (1977) (operator negligently fills radiator).

      . Crittendon v. State Oil Co., 78 lll.App.2d 112, 222 N.E.2d 561 (1966) (signs might allow belief that “State Oil” products are sold, but do not warrant assumption that station operator was agent in repairing and driving plaintiff’s car).

      . Apple v. Standard Oil, Div. of American Oil Co., 307 F.Supp. 107 (N.D.Cal.1969) (American Oil not liable when station operator’s dog bites plaintiff).

      . Even in service station cases some courts have found the existence of apparent agency where the representations involved more than advertising the product being sold, as e.g., Gizzi v. Texaco, Inc., 437 F.2d 308 (3d Cir. 1971), dealing with Texaco’s “you can trust your car to the man who wears the star” slogan.

      . The agreement also provides that in the event of termination, licensee will discontinue use of signs and other indicia of operation as a Howard Johnson Motor Lodge and will discontinue use of the color scheme and remove the cupola and all orange tile from the buildings or structures “effectively to distinguish the same from its former appearance as a designation of a ‘Howard Johnson’s Motor Lodge’ .... ”

      . A vice president of HJ testified:
      Q. Well, do you consider the Howard Johnson name to be a valuable name?
      A. Yes, we do.
      Q. Do you consider the name to imply cleanliness and safety and all of those good things?
      A. Yes, we do. (R-893). (emphasis supplied)

      . I find this case factually indistinguishable from the situation presented in Reichenbach where this court held precautions taken by the motel were as a matter of law sufficient to avoid liability. Both cases involve a motel’s liability for the result of criminal conduct of an assaultive nature by unknown third persons; both motels had been the location of prior similar criminal activity, both motels had one security guard on the premises at the time of the assault and neither motel had taken any other significant security measures (i.e. TV monitors).


author: ORFINGER, Judge.

text:
    Thomas L. MYRICK, Appellant, v. Barbara Jo MYRICK, Appellee.
    No. 80-1447.
    District Court of Appeal of Florida, Fifth District.
    July 15, 1981.
    Rehearing Denied Aug. 25, 1981.

      Barry L. Zisser of Zisser, Robison & Spohrer, P.A., Jacksonville, for appellant.
    Eugene E. Rhodes, Jr., South Daytona, for appellee.
   ORFINGER, Judge.

The only issue before us on this appeal is whether the trial court has jurisdiction to modify an award of rehabilitative alimony when the petition for modification is filed before the payment period has ended, but the order modifying the award is not entered until after the period has expired.

The nature of “rehabilitation” is such that no court can ever be assured that it will, in fact, occur. If the awarded spouse has not reached the point, at the end of the prescribed period, where he or she can regain a useful and constructive role in society and maintain an appropriate lifestyle, the court making the award should be able to consider a petition by that spouse for an extension of the rehabilitative award or for conversion to permanent alimony, considering the appropriate criteria which would apply to all such controversies. Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975).

In Lee, the court reasoned that modification of this_ type award would not be requested until the full rehabilitation time had substantially run or until other factors showing the non-attainability of that goal would manifest themselves. It held, therefore, that so long as any payments of alimony were executory, the court had jurisdiction to entertain a petition for modification, notwithstanding that jurisdiction was not specifically retained by the judgment making the award. We agree.

The realities of calendaring in the trial courts makes it necessary to schedule hearings many weeks (and sometimes months) in advance. If we adopt appellant’s position, not only would a party be required to anticipate, long in advance of the running of the alimony period, the need for extension or modification, but that party would also be required to prepare and file a petition, arrange for a hearing and then somehow prevail on the trial judge to decide the issue before the rehabilitation period expired. The practical difficulties of this position are readily apparent.

We believe the better rule is that suggested by Lee, that so long as the petition for modification is filed before the time for making payments has expired, the trial court continues to have subject matter jurisdiction to hear and decide the issues raised by the petition even after the rehabilitation period has run. The trial court had jurisdiction to enter the award here, so the order of modification is

AFFIRMED.

DAUKSCH, C.J., and COWART, J., concur.


author: NESBITT, Judge. HENDRY, Judge,

text:
    Donald HANFT, Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellee.
    No. 80-580.
    District Court of Appeal of Florida, Third District.
    July 21, 1981.
    Rehearing Denied Sept. 9, 1981.

      Krongold & Bass and Paul H. Bass, Coral Gables, for appellant.
    Mahoney, Hadlow & Adams and William C. Crenshaw, Miami, Dana G. Bradford, II, Jacksonville, for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   NESBITT, Judge.

The plaintiff (appellant), an aspiring young physician, was omitted from the defendant’s (appellee) yellow pages listing of “Physicians” and subheading of “Gynecology and Obstetrics” for two successive years despite his request for such a listing. He then commenced this action for compensatory and punitive damages. The defendant filed a general denial and asserted the affirmative defense of settlement, compromise, and release, alleging that plaintiff had accepted two years of free telephone service in discharge of his grievance.

At trial, there was conflicting evidence over whether a settlement had been reached or whether the plaintiff had been billed and had paid for the telephone service. The plaintiff concedes that he could not go forward with his claim for compensatory damages because he was unable to prove loss of earnings with the requisite specificity. The plaintiff does maintain that he is entitled to at least nominal damages. The trial court directed a verdict upon which final judgment was entered in favor of the defendant. This appeal ensued. We reverse.

In the trial court, the defendant based its motion for directed verdict on the plaintiff’s failure to establish either compensatory damages or conduct of the defendant which would support a claim for punitive damages. The trial court granted the motion for directed verdict on the grounds of compromise and settlement. It is clear that the burden of establishing the affirmative defense of compromise and settlement is upon the defendant. It is also clear that because there were facts in dispute, that affirmative defense should have been submitted to the jury for resolution. Goff v. Indian Lakes Estates, Inc., 178 So.2d 910 (Fla.2d DCA 1965); J. A. Cantor Associates v. Blume, 106 So.2d 603 (Fla.3d DCA 1958). The defendant did not base its motion for directed verdict on the dearth of conflicting evidence with respect to the affirmative defense nor does it attempt to support the judgment on appeal on that basis.

The defendant does attempt to support the judgment in its favor by arguing that the plaintiff failed to establish any loss of fees, business, or other profit and had therefore not established compensatory damages with the required degree of certainty. Beverage Canners, Inc. v. Cott Corporation, 372 So.2d 954 (Fla.3d DCA 1979). However, since the motion for directed verdict did not raise the question of liability, the defendant necessarily, concedes that there was an invasion of the plaintiff’s legal rights which would support an award of nominal damages. Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla. 1977); Beverage Canners, Inc. v. Cott Corporation, supra. A plaintiff seeking damages on a negligence theory under the circumstances of this case is at least entitled to have the jury consider the question of nominal damages and it was error to direct a verdict in favor of the defendant. See, Laird v. Potter, 367 So.2d 642 (Fla.3d DCA), cert. denied, 378 So.2d 347 (Fla. 1979).

Since the plaintiff was entitled to have his case submitted to the jury for the recovery of nominal damages, we must consider whether, under the facts alleged, he was entitled to have a jury consider his entitlement to punitive damages. Punitive damages are not generally recoverable for breach of contract irrespective of the motive of the defendant. The exception to this general rule is where the acts constituting the breach of contract also amount to a cause of action in tort, as alleged in this case. Then, there may be a recovery of punitive damages upon proper allegations of proof. For such recovery, the breach must be attended by some intentional wrong, insult, abuse, or a gross negligence which is sufficient to amount to an independent tort. Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla. 1976); American International Land Corporation v. Hanna, 323 So.2d 567 (Fla. 1975); Griffith v. Shamrock Village, 94 So.2d 854 (Fla. 1957). Gross negligence or malice may be imputed from the entire want of care or want of slight care. Griffith v. Shamrock Village, supra. In the analogous case of Maddalena v. Southern Bell Telephone and Telegraph Company, 382 So.2d 1246 (Fla. 4th DCA 1980), where the same defendant failed to properly list a commercial subscriber in the telephone directory and unilaterally terminated a “reference of calls” service on two successive years, our sister court held “[t]he compounding effect of the successive acts may in fact amount to gross negligence.” We entirely agree. A finding of gross negligence would support a claim for punitive damages. The negligent performance of a contractual duty properly supports a tort action. Gallichio v. Corporate Group Service, Inc., 227 So.2d 519 (Fla.3d DCA 1969); 23 Fla.Jur. Negligence § 99.

For the foregoing reasons, the final judgment is reversed and the cause remanded for a new trial not inconsistent with this decision.

HENDRY, Judge,

dissenting.

I respectfully dissent. I would affirm upon a holding that appellant’s claims were compromised and settled by his negotiation and acceptance of two years of free telephone service. National Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24 (1931); Foliage Corp. of Florida, Inc. v. Watson, 381 So.2d 356 (Fla. 5th DCA 1980).

      . Other affirmative defenses were raised by the defendant in its answer. However, for the purposes of this appeal, and on the record before us, this is the only defense raised which need be addressed.

      . The fact that a trial judge gives a wrong reason for directing a verdict is not reversible error if there is any basis in the record to support the directed verdict. Gavel v. Girton, 183 So.2d 10, 13 (Fla.2d DCA 1966); Harvey v. Maistrosky, 114 So.2d 810 (Fla.2d DCA 1959). In this case, no such basis has been demonstrated.


text:
    CLEAN WATER, INC. and Terri Saltiel, Appellants, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, and the Fallschase Special Taxing District, Appellees.
    No. PP-490.
    District Court of Appeal of Florida, First District.
    July 21, 1981.
    Rehearing Denied Sept. 9, 1981.

      James R. Brindell, Tallahassee, for appellants.
    J. D. Boone Kuersteiner, Tallahassee, for appellee Fallschase Special Taxing Dist.
    William W. Deane, Tallahassee, for appel-lee State of Florida, Dept, of Environmental Regulation.
   On Petition for Rehearing

Appellee, Fallschase Special Taxing District has moved for rehearing of this cause and has pointed out several minor factual inaccuracies in our opinion filed on May 7, 1981. In addition, appellee has suggested that the directions for remand of this case be clarified. Although correction of the factual inaccuracies and the clarified remand do nothing to alter the outcome of the opinion, we nonetheless issue the following revised opinion in order to both correct and clarify our earlier opinion. In light of this revised opinion, the remainder of the petition for rehearing is denied.

PER CURIAM.

Clean Water, Inc., and Terri Saltiel appeal a final order of the Environmental Regulation Commission (ERC), which granted motions of appellees, the Department of Environmental Regulation (DER) and the Fallschase Special Taxing District, to dismiss the administrative appeal of appellants for failure to file a notice of appeal within the time prescribed by the ERC’s rules of procedure. Appellants assert it was error for the ERC to conclude that the DER’s order of May 11, 1979, disposed of issues raised by appellant’s subsequent petition for a formal hearing of May 22, 1979. We agree with appellants and reverse.

In December, 1973, the Florida Department of Pollution Control notified E. Lamar Bailey, the developer of the Fallschase Special Taxing District, of the possible need for permits to proceed with a housing development. These negotiations continued between the Florida Department of Pollution Control, which was later substituted by DER, Terri Saltiel, and Clean Water, Inc. until January 1979, when Saltiel and Clean Water notified DER of their belief that Fallschase was advertising for bids to clear and fill upon Lake Lafayette.

Subsequently, on May 2, 1979, appellants filed, with the DER, a petition for an administrative hearing under Florida Statute § 120.57. In this petition, appellants alleged that DER was about to take certain actions regarding the Fallschase Special Taxing District that were unlawful. A further allegation was made that a proposed agreement between DER and Fallschase regarding the necessity to obtain permits for proposed work was in violation of the law. By order, dated May 11, 1979, this petition was denied by the DER on grounds that the proposed stipulation between the DER and Fallschase was not a final action of the DER, but only a preliminary agreement by which Fallschase and DER might determine areas of the development subject to the permitting requirements of the DER. Appellants did not pursue an administrative appeal from this order.

Thereafter, on May 15, 1979, the DER and Fallschase entered into a Stipulation Respecting Agency Investigation Prior to Agency Action. On May 22, 1979, appellants filed a second petition for an administrative hearing. The DER again denied this petition by final order, dated June 1, 1979, asserting this second petition real-leged the same matters and issues as the earlier petition filed on May 2, 1979.

Appellants then filed an administrative appeal from the DER’s final order and motion to stay with the ERC. The ERC entered an order on August 31, 1979, which found appellants’ second petition of May 22, 1979, substantially realleged the matters and issues which had been the subject of final agency action in the order of May 11, 1979. The ERC also determined that May 11, 1979 (date of DER’s first order) was the date from which the time to file a notice of appeal specified by Section 17-1.72(1), Florida Administrative Code, must be computed.

Appellants contend that their petition for a formal hearing, filed on May 2, 1979, was aimed only at a rumored agreement between DER and Fallschase, which was not reduced to writing at the time. They point out that the Stipulation Respecting Agency Investigations Preliminary to Agency Action was not signed by both parties until May 15,1979, some four days after the May 11, 1979 DER order denying appellants’ May 2,1979 petition. They urge that it was only after appellants had finally obtained a copy of this stipulation between DER and Fallschase, that they filed the May 22, 1979 petition for formal hearing.

Appellees have asserted that the ERC properly dismissed appellants’ administrative appeal as appellants failed to meet the fifteen day filing requirement of Section 17-1.72(1), Florida Administrative Code. They argue that appellants’ second petition of May 22,1979 substantially realleged matters and issues which had been determined in the DER’s order of May 11, 1979. They urge that the doctrines of collateral estop-pel and res judicata bar appellants’ second petition.

This court has concluded that appellants’ argument should prevail. The doctrine of res judicata bars relitigation of the same cause of action between the same parties and collateral estoppel bars relitigation of the same issues between the same parties in a different cause of action. Gordon v. Gordon, 59 So.2d 40, 44 (Fla. 1952); Seaboard Coast L.R. Co. v. Industrial Contracting Co., 260 So.2d 860, 863 (Fla. 4th DCA 1972). The two petitions involved in this proceeding did involve the same parties. The record indicates, however, that when appellants filed their first petition for a formal hearing on May 2,1979, there was only a proposed agreement between DER and Fallschase in existence. It was only on May 15, 1979, that the written stipulation between DER and Fallschase was entered into, some four days after DER’s order of May 11, 1979.

For this court to hold that appellants’ second petition, filed on May 22, 1979 violates the DER's fifteen day filing period would fail to provide appellants with a point of entry or an opportunity to challenge the specific contents of the written stipulation entered into between Fallschase and DER on May 15, 1979. It was impossible to question the specific contents of the written stipulation in the first petition as it did not exist and was not available when that petition was filed.

Accordingly, the order below granting appellees’ motion to dismiss is REVERSED and this cause is REMANDED for a determination as to whether the written stipulation entered into by DER and Fallschase constituted “final agency action” which will be subject to the hearing requirements of § 120.57(1) and (2), Florida Statutes.

McCORD, SHIVERS and JOANOS, JJ., concur.

      . Rule 17-1.72(1), Florida Administrative Code, reads as follows:
      (1) Appellate review under this part shall be initiated by the filing of a Notice of Appeal with the Secretary within fifteen (15) days of the service upon a party of the written document representing final agency action.


author: SCHWARTZ, ALAN R., Associate Judge.

text:
    John Cooper SIMS, Appellant, v. STATE of Florida, Appellee. Fred Richard FARNES, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-345, 80-346.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1981.
    Rehearing Denied in No. 80-345 Sept. 16, 1981.
    Robert F. Tacher and Robert B. Miller of Law Offices of Lawrence B. Friedman, North Miami Beach, for appellant Sims.
    C. Daniel Akes, Lakeland, for appellant Fames.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

The defendants Fames and Sims were the pilot and co-pilot respectively of a plane which arrived in Boca Raton from the Bahamas carrying 170 pounds of suspect marijuana. They separately appeal from their convictions and sentences, following a jury trial, for possession of in excess of 100 pounds of cannabis, a second degree felony under the then-applicable provisions of Section 893.13(l)(a)2, Florida Statutes (1977).

Each defendant first claims error in the denial of his pre-trial motion to suppress the contraband as the result of an unlawful search and seizure. Because, however, the record shows that no objection to the introduction of the cannabis on this ground was raised at the trial, we are unable to consider this issue on appeal. D. J. C. v. State, 400 So.2d 830 (Fla. 3d DCA 1981); Alvarez v. State, 400 So.2d 768 (Fla. 4th DCA 1981); Roban v. State, 384 So.2d 683 (Fla. 4th DCA 1980); see generally Caster v. State, 365 So.2d 701 (Fla.1978). As to this point, which is the only one which concerns the underlying guilt of the defendants, the judgments below are therefore affirmed.

It is next argued that the state did not carry its burden of showing that the defendants were in possession of more than 100 pounds of unlawful cannabis sativa L., as opposed to nonprohibited stalks, stems, or seeds. See Purifoy v. State, 359 So.2d 446 (Fla.1978). We find merit in this contention. At the trial, the only testimony concerning the nature and quantity of the material in question was that of a chemist, Jay Pintacuda. He stated that he secured samples of the substance simply by taking a handful from each of four bales of the material, which had a total gross weight of 170 pounds. He acknowledged that although marijuana on the bottom of such a receptacle would likely contain a larger portion of seeds, he could not and did not actually reach to the bottom in taking the samples. Pintacuda then took one gram from each bale, separated the prohibited material from the chaff and stems, and without using a scale and without a showing that he was expert in arriving at such a determination, made a visual estimate that 70% of the sample was cannabis, and 30% lawful material. This was the sole basis upon which he stated that he “fe[lt] confident we have over ... a hundred pounds of controlled marijuana.” Most significantly, however, he admitted that

I cannot say beyond a reasonable scientific certainty ... I feel confident of my conclusions, but that is only my opinion.

It seems obvious that this testimony was insufficient as a matter of law affirmatively to establish, as the prosecution was obliged to do, that more than 100 pounds of prohibited material was involved. Purifoy v. State, supra; Blair v. State, 384 So.2d 685 (Fla. 4th DCA 1980); Leavitt v. State, 369 So.2d 993 (Fla. 1st DCA 1979); see, Weisz v. State, 392 So.2d 22 (Fla. 4th DCA 1980). There was plainly no direct evidence of this fact — no one weighed the actual cannabis and found that more than 100 pounds registered on the scale. The state was forced to rely entirely on the essentially circumstantial evidence of the chemist’s estimate of the comparative weights of his sample. For two separate reasons, this extrapolation did not, as required when such evidence is relied upon, e..g., Davis v. State, 90 So.2d 629 (Fla.1956), .exclude a reasonable hypothesis that, in fact, there was less than 100 pounds of marijuana on the plane.

First, Pintacuda’s estimate was no more than a bare conclusion of what “appeared” to be the relative proportions of quantities of separate materials neither of which was actually weighed. Since he was not qualified as an expert in making such estimates, this opinion of that percentage was, pardon the pun, entitled to little, if any, weight itself. See Allapattah Community Association, Inc. of Florida v. City of Miami, 379 So.2d 387, 393 (Fla. 3d DCA 1980). It was surely not impossible that his “rough estimate” was off by no more than 12% making the percentage of cannabis only 58% of the sample and the unlawful portion of the whole 170 pounds therefore less than 100. Just as important, since it may well have contained a significantly smaller percentage of seeds, the sample itself was not shown to be a fair representation of the entire quantity. In both of these respects, this case differs significantly from Dorsey v. State, 367 So.2d 692 (Fla. 1st DCA 1979), upon which the state relies almost exclusively. In Dorsey, the quantity of cannabis involved — which, unlike the present instance, was scientifically measured — was almost five times the prohibited amount (24.2 grams vs. five grams) rather than only 1.7 times, as here. Thus, the expert in Dorsey would have had to be very wrong indeed to result in an invalidation of his opinion. Furthermore, it was uncontradicted that the sample tested in Dorsey “was representative” of the remaining amount. Just the opposite is true of this case. In sum, as shown by his candid refusal to state his opinion beyond a reasonable scientific certainty, see, People v. Davis, 95 Misc.2d 1010, 408 N.Y.S.2d 748, 750-51 (Dutchess Co.Ct.1978), modified on other grounds, sub nom., People v. Houston, 72 A.D.2d 369, 424 N.Y.S.2d 726 (1980), it was just the chemist’s guess that over 100 pounds of prohibited substance were present in the bales he tested. But a guess, even a good or an informed one, cannot be the basis of a criminal conviction.

For these reasons, we order that the convictions under review be reduced to ones for the possession of more than five grams and less than 100 pounds of cannabis, a third degree felony under Section 893.13(l)(a)2, Florida Statutes (1977). The cases are remanded for resentencing accordingly.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . He was stipulated to be an expert only in making chemical analyses of the material.

      . Indeed, the chemist said that he himself had seen other quantities of marijuana in which the percentage of nonprohibited material was as much as 40-45%.

      . Ibid.

      . We assume arguendo that Dorsey was not overruled by the later first district opinion in Leavitt v. State, supra. But see, opinion of Ervin, J., dissenting in part in Leavitt, at 369 So.2d 994.

      .The fact that the resentencing must comply with the requirements of both Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) and the double jeopardy clauses of the United States and Florida Constitutions makes it unnecessary to consider the merits of Fames’ separate attack on the sentence imposed on him below.