author: ADKINS, Justice.

text:
    Stephen Todd BOOKER, Appellant, v. STATE of Florida, Appellee.
    No. 61947.
    Supreme Court of Florida.
    April 19, 1982.
    Stephen N. Bernstein, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky and Lawrence A. Kaden, Asst. At-tys. Gen., Tallahassee, for appellee.
   ADKINS, Justice.

We have for review an order denying a motion to vacate and set aside judgment and sentence or in the alternative for a new trial. Defendant, Stephen Todd Booker (hereinafter defendant), was convicted of first-degree murder and sentenced to death. This Court affirmed both the judgment and the sentence. Booker v. State, 397 So.2d 910 (Fla.1980). Defendant then filed, pursuant to Rules 3.600 and 3.850, Florida Rules of Criminal Procedure, the above-mentioned motion which was denied without an evidentiary hearing. We have jurisdiction to hear the appeal of that denial. Art. V, § 3(b)(1), Fla.Const.

The only question presented on this appeal relates to certain “new revelations” which defendant contends reach the guilt-phase issue of whether he was sane at the time of the killing and the penalty-phase matter of mitigating circumstances. The new revelations consist of findings by a psychiatrist which indicate that defendant was suffering from psychiatric diseases at the time of the murder in question. The findings are based on the same information on which the medical testimony presented at trial was based, but result in “significantly different” conclusions. Defendant contends that if the psychiatrist could establish that defendant was so afflicted, the court’s decision could be seriously affected. Thus, he argues, justice requires a new proceeding in which he may submit the “newly discovered evidence.” We disagree.

“The appropriate first step for a defendant seeking a new trial on the basis of new evidence discovered after his conviction has been affirmed on appeal is a petition to the appellate court for leave to file a petition for error coram nobis.” Smith v. State, 400 So.2d 956 (Fla.1981). Thus, if the latest psychiatric evaluation is newly discovered evidence, then defendant should have sought leave to file a petition for error coram nobis.

For the foregoing reason the grounds alleged in the motion for post-conviction relief were not proper for consideration therein. Hence, the motion was legally insufficient and did not require that the trial judge attach specific portions of the record or grant an evidentiary hearing. We find that the denial of defendant’s motion by the trial court was proper and the order so doing is hereby affirmed.

Also considering this as a petition for writ of error coram nobis, the foregoing is only academic, however, because the “newly discovered evidence” is not that at all. It is a new interpretation of facts that were known and considered at trial. Defendant’s motion to the trial court specifically notes that the new and different psychiatric conclusions were based on the same information as the psychiatric reports introduced at trial and on an interview with defendant. No new information was discovered — a doctor has simply been found who draws different conclusions.

If “evidence” such as that offered here is found to warrant a new proceeding, there will be no end to the appeal process. The finality of the judicial process would be nil if a new proceeding was required everytime a party found an expert who reached a conclusion, with regard to information available at the time of trial, that differed from the opinions and conclusions presented at that trial. There must be a point at which the proceeding is concluded and the matter is settled. Furthermore, having reviewed the allegations in defendant’s motion to the trial court, we do not think that the newest report is of sufficient import to have changed the outcome of the trial. Consequently, writ of error coram nobis is not available.

The application for stay of execution is denied. No petition for rehearing will be entertained.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Terrell THOMPSON, Respondent.
    No. 60610.
    Supreme Court of Florida.
    April 22, 1982.

      Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., Miami, for petitioner.
    Geoffrey C. Fleck and Richard A. Sharp-stein of Weiner, Robbins, Tunkey & Ross, Miami, for respondent.
   OVERTON, Justice.

This is a petition to review a decision of the Third District Court of Appeal reported as Thompson v. State, 397 So.2d 354 (Fla. 3d DCA 1981). We find direct conflict with our decision in State v. Hegstrom, 401 So.2d 1343 (Fla.1981). See art. V, § 3(b)(3), Fla. Const. The issue in the instant case concerns the constitutionality of multiple punishments arising out of a single incident, one sentence for first-degree felony murder and one sentence for attempted robbery, when the attempted robbery is a necessary element of the murder charge. This Court held in Hegstrom that under these circumstances it is permissible to convict a defendant of both felony murder and the underlying felony but that only one sentence, for the greater offense, is proper.

In the instant case, respondent was convicted and sentenced for attempted robbery and felony murder. The district court upheld the felony murder conviction and sentence but reversed the conviction and sentence for attempted robbery, holding that under State v. Pinder, 375 So.2d 836 (Fla.1979), one could not be convicted and sentenced for both felony murder and the underlying felony. In this appeal, the state first seeks that we review the evidence and find that respondent was appropriately convicted of premeditated first-degree murder, not felony murder. We reject this contention. Again, as in Hegstrom, we decline to accept this case for review on one basis and then reweigh the evidence reviewed by the district court in order to avoid ruling on the real issue that brought the case to us.

The state next asks that we, in any event, reinstate respondent’s conviction for attempted robbery in accordance with Heg-strom. Respondent concedes that ordinarily our decision in Hegstrom would control and that an affirmance of his conviction for attempted robbery would be proper. But he argues that, because his crime and conviction occurred before our Hegstrom decision issued, that decision cannot apply, and that reinstatement of the attempted robbery conviction would constitute an ex post facto violation. We are unpersuaded by this argument. The United States Supreme Court has addressed this issue in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), in which it said:

The Ex Post Facto Clause is a limitation upon the powers of the Legislature .. . and does not of its own force apply to the Judicial Branch of government.. . . But the principle on which the Clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is fundamental to our concept of constitutional liberty.

Id. at 191, 97 S.Ct. at 992 (emphasis ours).

Respondent was properly convicted of felony murder and attempted robbery. The statutes enumerating those crimes existed at the time of respondent’s offense. Respondent clearly, therefore, had more than “fair warning” that his acts constituted crimes against the people of the State of Florida and that he could possibly be punished for both. Our application to respondent of Hegstrom is clearly not an ex post facto application of that decision.

Accordingly, we reverse that portion of the district court’s decision which sets aside respondent’s attempted robbery conviction and affirm the remainder of the opinion, including the vacation of the sentence for attempted robbery. The cause is remanded to the trial court for reinstatement of respondent’s attempted robbery conviction.

It is so ordered.

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


author: FERGUSON, Judge. PEARSON, TILLMAN (Ret.), Associate Judge,

text:
    Thomas PERKINS, as Personal Representative of the Estate of Anthony Perkins, a deceased minor, Appellant, v. VARIETY CHILDREN’S HOSPITAL, Appellee.
    No. 80-1671.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1982.
    Rehearing Denied May 18, 1982.

      Fazio, Dawson, Steinberg & DiSlavo and Marcia E. Levine, Fort Lauderdale, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
    Before DANIEL S. PEARSON and FERGUSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   FERGUSON, Judge.

The main issue in this appeal is whether a judgment recovered by a child for personal injuries during his lifetime bars a subsequent wrongful death action by his personal representative where the- death is caused by the same injuries. We reverse the trial court and hold that the prior judgment is no bar.

Plaintiff Thomas Perkins, as the personal representative of the estate of the deceased minor son Anthony Perkins, filed a wrongful death action against defendant Variety Children’s Hospital seeking damages for mental pain and anguish suffered by him and his wife as parents of the deceased minor and for the funeral expenses of the child. The defendant hospital answered the complaint affirmatively alleging that the plaintiff father had no right of action for the wrongful death because (1) the minor had already sued for the injury and had received a judgment which had been satisfied, (2) the statute of limitations for a personal injury action had expired prior to the time of the minor’s death. The facts alleged in the affirmative defenses were admitted. The trial court denied plaintiff's motion to strike these defenses on the grounds that they were valid defenses, then entered a Final Summary Judgment for the hospital.

The parties agree that resolution of the main issue pivots on the interpretation to be given certain language in the Florida Wrongful Death Act, Section 768.19, Florida Statutes (1979). The Act provides in pertinent part:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, . . . and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person . . . that would have been liable for damages . . . shall be liable for damages as specified in this act notwithstanding the death of the person injured. . . (emphasis added).

The crucial language from the statute is emphasized above. The threshhold question is whether, as advanced by appel-lee, the right of the parents to maintain a wrongful death action depends upon the child’s right to sue for his personal injuries at the time of his death. In light of well-established Florida law, we must reject ap-pellee’s argument. A proper analysis of the questioned statutory language begins with a focus upon the event, i.e., whether the event causing injury is one which would have entitled the decedent to bring an action for personal injury. See, e.g., Epps v. Railway Express Agency, Inc., 40 So.2d 131 (Fla.1949); Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326, 266 A.2d 569 (N.J.1970) and cases compiled therein. See also W. Prosser, Law of Torts, § 127 (4th ed. 1971) (“The more reasonable interpretation would seem to be that [similar clauses in wrongful death statutes] are directed at the necessity of some original tort on the part of the defendant, under circumstances giving rise to liability in the first instance, rather then to subsequent changes in the situation affecting only the interest of the decedent”).

The Florida Supreme Court has consistently found that Section 768.19, Florida Statutes (1979), Wrongful Death Act, creates an independent cause of action in the statutory beneficiaries. The Act gives the beneficiaries the right to sue for their own damages and is independent from any right of the decedent to sue for his own injuries either prior to death or after death through a personal representative. Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975); Moragne v. State Marine Lines, Inc., 211 So.2d 161 (Fla.1968) (right under statute independent from right of person originally injured), reversed on other grounds, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Shiver v. Sessions, 80 So.2d 905 (Fla.1955); Épps v. Railway Express Agency, supra (separate right exists but applying principle of collateral estoppel) relying on Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934) (applying principle of estop-pel by judgment to wrongful death action) and explaining Ake v. Birnbaum, 156 Fla. 735, 25 So. 213 (1945), on rehearing, (separate right; personal representative may sue for decedent’s injuries). The supreme court in Epps specifically stated at 132, supra:

Florida’s Wrongful Death Act creates an independent cause of action without regard to whether the injured person or his personal representative have ever initiated suit on the original cause of action.

This conclusion is the logical consequence of a finding that the statutory wrongful death action is not wholly derivative upon the decedent’s right to sue for his own injuries at the time of his death. Accord Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). In Gaudet, the Court held that a widow of a longshoreman could maintain an action for the wrongful death of her husband after the decedent recovered damages in his lifetime for his injuries. Central to the Court’s findings were the determinations that (1) the wrongful death statute — as do most— created an independent cause of action in favor of the decedent’s dependents, Gaudet, 414 U.S. at 578, 94 S.Ct. at 811, 39 L.Ed. at 17, n.5, and (2) that recovery was not barred by res judicata or public policy, id., U.S. at 579, 94 S.Ct; at 811, 39 L.Ed.2d at 18, including the problem of double liability, id., U.S. at 583-95, 94 S.Ct. at 814-20, 39 L.Ed.2d at 20-26. See also Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (N.J.1981), affirming, 168 N.J.Super. 315, 403 A.2d 9 (N.J.App.1979). Appellant is correct in arguing that under Florida law, the statutory language refers to the qualifying nature of the “event,” and not to whether the decedent ever sued in his lifetime. Epps v. Railway Express Agency, supra.

In Warren v. Cohen, 363 So.2d 129 (Fla. 3d DCA 1978), the Third District Court of Appeal agreed that Section 768.19 created an independent cause of action but for public policy reasons held that a release executed by deceased bars a subsequent action for wrongful death. The holding of Warren, supra, is consistent with Shiver v. Sessions and the other cases cited, supra. The court in Warren, supra, however, was concerned with the public policy favoring the settling of lawsuits and its holding is limited to cases involving release or settlement. The public policy concern of Warren, that of settling lawsuits, has no application to preventing recovery where the decedent received a judgment compensating him for his injuries prior to death. There is no legislative or judicial authority in Florida for the proposition that a prior judgment for personal injury bars a subsequent wrongful death action. Nor can any such legislative intent be inferred. Section 768.-20, Florida Statutes, expressly bars a personal injury recovery where death precedes a judgment on the claim. The statute is silent as to whether a judgment which precedes death ought to also bar a subsequent wrongful death action, from which it may be inferred, aside from all else, that no such bar was intended.

Nor is the specter of double recovery a compelling public policy argument for blocking a subsequent wrongful death action. It cannot be ignored that a judgment for personal injury by the decedent in his lifetime may be grossly inadequate to compensate for the subsequent death which is a result of the same injury especially where death was not contemplated. Though we have not found any Florida cases specifically discussing the policy considerations of avoiding double recovery and of achieving finality of litigation, existing cases, as well as the Florida negligence statute which particularly delineates recoverable damages, suggest that Florida recognizes those safeguards against double recovery which are discussed in Gaudet, and Alione, both supra.

In the personal injury action the jury returned a verdict of $1,000,000.00 for the minor decedent and $200,000.00 to his parents for medical care. A portion of the award was for future losses and care. The child, who was only four-months old at the time of the injury, died a few months after the judgment was entered.

Future losses pose the greatest danger of double recovery—the chief concern of those in favor of barring a subsequent action. But wrongful death benefits are a supplement not a duplication of damages awarded to the decedent and prevention of double recovery is capable of management by the court on a case-by-case basis.

On the facts of this case fairness and equity require that those amounts awarded to decedent and the parents for pecuniary losses, pain and suffering and expenses to be incurred after the date of death be set-off against the wrongful death award. This set-off should present no problem as Section 768.48(2) requires that a judgment for a patient against a health care provider itemize each category of damages into amounts intended to compensate for losses incurred prior to the verdict and amounts intended to compensate for losses to be incurred in the future. We reject the argument of appellee that there cannot be an award for pain and suffering to both the decedent and his survivor. Unlike the majority of jurisdictions, both are provided for by Florida law, Sections 768.21(4) and 768.-48(l)(c). However, in a malpractice action this element of damage is also apportioned as between past and future and should present no set-off problem.

As a second issue on appeal it is contended that the statute of limitations could not bar the wrongful death action. Again we agree. Section 95.11(4)(d), Florida Statutes (1979) provides that an action for wrongful death be brought within two years. Since the right does not exist until death occurs, the only reasonable interpretation is that wrongful death actions must be brought within two years from the time of the death of the injured party and not within two years from the time of injuries of that party. The Florida Supreme Court has so held in Parker v. City of Jacksonville, 82 So.2d 131 (Fla.1955) (§ 95.11 not § 95.24 applies to wrongful death actions). See also Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975) (cause of action accrues and statute commences to run on date of death).

The question of liability having been decided in the personal injury action, Variety Children’s Hospital, Inc. v. Perkins, 382 So.2d 331 (Fla. 3d DCA 1980) only the issue of damages pursuant to the wrongful death section remains to be litigated. A prior decision of liability will preclude litigation of that issue under the wrongful death statute. See Collins v. Hall, supra (judgment against husband estopped wife from recovery under wrongful death statute). See, e.g., Epps v. Railway Express Agency, supra (adverse final judgment entered in pri- or wrongful death suit by wife operated as collateral estoppel and barred recovery in subsequent suit by wife as administrator). Cf. Seaboard Coast Line Railroad Co. v. Cox, 338 So.2d 190 (Fla.1976) (applying es-toppel by judgment); Allstate Insurance Co. v. A.D.H., Inc., 397 So.2d 928 (Fla. 3d DCA 1981) (estoppel as to liability issue). See Restatement (Second) of Judgments, § 92.1(3) (Tent. Draft No. 3, 1976) (issues determined by judgment for or against person in action based on act later causing death are conclusive in subsequent action for wrongful death).

Reversed and remanded for further proceedings consistent with this opinion.

PEARSON, TILLMAN (Ret.), Associate Judge,

dissenting.

The holding in the majority opinion is that a right of action in Florida for wrongful death is not conditioned upon the ability of the deceased to sue for the tort which caused his death. As authority for the proposition that this state has adopted such an interpretation of the Florida Wrongful Death Act, Sections 768.16-768.27, Florida Statutes (1979), the plaintiff relies heavily upon the Florida Supreme Court decision in Shiver v. Sessions, 80 So.2d 905 (Fla.1955).

It is agreed that this issue must be determined through an interpretation of the Act. Section 768.19 thereof provides:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony. [Emphasis supplied.]

Upon the basis of the crucial language of the statute (emphasized above), a majority of jurisdictions have adopted the view that a right of action for wrongful death is dependent upon a right of action of the deceased at the time of his death. Consequently, if prior to his death, the deceased’s personal injury action had been reduced to judgment and he could not, therefore, maintain an action for his injuries at the time of his death, his survivors would have no right of action for damages suffered by them as a result of the death. See the various authorities for this majority view cited by us in Warren v. Cohen, 363 So.2d 129, 131 n.1 (Fla. 3d DCA 1978).

The question presented in Warren was whether a release executed by an injured person barred a subsequent wrongful death action for the same injury. In accordance with the majority view, we held that the subsequent wrongful death action was barred by the prior release. It would be difficult to distinguish that holding from the holding of the trial court in the present case. This is especially true because in Warren we cited authority for the principle that an existing judgment will bar a subsequent wrongful death action. See Roberts v. Union Carbide Corporation, 415 F.2d 474 (3d Cir. 1969); see also Schlavick v. Manhattan Brewing Co., 103 F.Supp. 744 (N.D.Ill.1952).

We are told, however, that the courts of this state have adopted the minority view. In the case of Shiver v. Sessions, 80 So.2d 905 (Fla.1955), the inter-spousal immunity doctrine was held by the Florida Supreme Court not to prevent the surviving children of a deceased mother from maintaining a wrongful death action against the estate of their stepfather, even though a personal injury action by their -mother against the stepfather could not have been maintained during the mother’s lifetime. The Court stated:

[I]t is clear that the Legislature intended that the right of action created by the Wrongful Death Act in favor of the named beneficiaries must be predicated upon operative facts which would have constituted a tort against their decedent under established legal principles — in other words, they must state a “cause of action” for tort against the tortfeasor, subject to the defenses of contributory negligence and the like which the tort-feasor could have pleaded in a suit against him by the decedent during his or her lifetime, and this court has so held in many cases. But we think it is unreasonable to imply that the Legislature intended to bar the “right of action” created by the Act on account of a disability to sue which is personal to a party having an entirely separate and distinct “right of action” and which does not inhere in the tort — or “cause of action” — upon which each separate right of action is based.

It is true that the Florida Supreme Court did refer to the “right of action” created by the Act as being one that is entirely separate and distinct. I think, however, that the language used did not depart from the law established in prior Florida Supreme Court cases; rather, it explained how the cause of action would not be destroyed despite the artificial bar to the creation of the action by the inter-spousal immunity. The reasoning employed by the Court does not negate that provision of the Act requiring an “. . . event . . . entitling] the person injured to maintain an action and recover damages if death had not ensued ...” As pointed out by the Court, the emphasis is on the event and, therefore, it is the “event” which must qualify, and which, in fact, did qualify in Shiver, thereby giving rise to a cause of action. In the present case, however, I would hold that the event should not qualify because full satisfaction has been received by the deceased himself.

The crucial provision was included in that version of Florida’s wrongful death statute which was in effect in 1894, when the Florida Supreme Court decided Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894). That ease held that there was no recovery in a wrongful death action where the deceased party would have had no cause of action. See also Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934), where no action could lie because the deceased had sued on the cause and had suffered an adverse judgment. If the Florida Supreme Court had intended in Shiver to recede from its prior decisions, it would have so indicated. However, Shiver did not change the law in Florida and, therefore, I would affirm.

On Motion for Clarification and Suggestion for Certification

Following the issuance of our opinion of January 12, 1982, timely motions for rehearing, clarification, and certification were filed by the parties. Both parties call attention to the second sentence, third paragraph on page six of the opinion as a misapprehension by the court — that there was no itemized verdict apportioning damages as between past and future damages because the personal injury action was filed prior to July 1, 1976, the effective date of Section 768.48 which requires itemization. Accordingly, we amend the sentence in question to read:

This set-off should present no difficulty in future cases of this nature as Section 768.48(2) now requires that a judgment for a patient against a health care provider itemize each category of damages into amounts intended to compensate for losses incurred prior to the verdict and amounts intended to compensate for losses to be incurred in the future.

Except as to this sentence, we adhere to the original opinion and deny the appellant’s motion for clarification, and appellee’s motion for rehearing.

On suggestion of appellee we certify the following question to the Supreme Court of the State of Florida as one of great public importance:

Whether a judgment for personal injuries recovered during life-time of an injured person bars a subsequent wrongful death action by the personal representative of the deceased where death is a result of the same injuries.

      . The Florida court found that even though an independent right exists under the statute, this statute did not extend that right to cases of death from injury caused by unseaworthiness of vessels on navigable waters within Florida because the doctrine of unseaworthiness is based on strict liability and not on negligence or culpable fault. (Since then the Florida statute has been rewritten to include not only negligence but also breach of contract or warranty). The United States Supreme Court reversed, finding that the wrongful death action was permissible under general maritime law in situations not covered by the Death on the High Seas Act.

      . Though the cases cited by the court in Warren generally support its holding, none are authority for the principle that judgment for decedent bars a subsequent wrongful death action. The result obtained is not logically consistent with the oft-stated supreme court holding that the Act creates an independent cause of action so the case stands only on public policy grounds. The New Jersey Supreme Court in Alfone, supra, suggests that settlement and release may be conclusive only as to those persons included in the agreement who subsequently are determined to be wrongful death beneficiaries. Though logical, as a rule its effect might be to discourage settlements.
      In Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA 1974), cert. denied, 297 So.2d 836 (Fla. 1974), a wife and husband were injured in an automobile accident; the husband eventually died from those injuries. Prior to his death the husband signed a comprehensive release, including release of any claim for wrongful death. The wife subsequently brought an action to recover for her own injuries. The jury was given a broad charge that the wife could recover for any loss caused by the injuries and subsequent death of husband including loss of consortium. Prior to the court’s holding in Gates v. Foley, 247 So.2d 40 (Fla.1971) the wife had no independent right to sue for loss of consortium arid, because the husband had signed the release prior to the Gates decision, the claim would normally be barred. In this case, however, because the Gates decision changed the law after judgment but pending the appeal, the appellate court reversed for a new trial in which the wife could prosecute her individual claims for personal injuries and her loss of consortium. This holding supports the Warren decision and is consistent with Shiver and the other cases holding that the wrongful death action creates an independent right.
      In Boole v. Florida Power & Light Company, 147 Fla. 589, 3 So.2d 335 (1941), the court held that a directed verdict in a wrongful death action was improperly granted decedent. The wife had presented substantial evidence which would void the release signed by her husband prior to his death, i.e., mutual mistakes as to seriousness of injury and not intent that the release cover injuries not then known or contemplated. This also supports the Warren holding that a release bars a subsequent wrongful death action.
      In Mellon v. Goodyear, 277 U.S. 335, 48 S.Ct. 541, 72 L.Ed. 906 (1928), the court held that a settlement during his lifetime, by an employee injured in interstate commerce, of his right of action under the Employers’ Liability Act (1908) prevented recovery by his administrator after his death. The Court’s concern was with the problem of double recovery as it noted that neither the Liability Act nor Lord Campbell’s Act (model for the wrongful death acts) defined the nature of the damages to be recovered.
      In Walrod v. Southern Pacific Co., 447 F.2d 930 (9th Cir. 1971) the court held that a prior judgment barred a subsequent wrongful death action brought pursuant to the Federal Employers’ Liability Act (45 U.S.C. § 51). The court cited Mellon and stated that the right was derivative and dependent upon the continuance of the right of the injured employee at the time of his death. This is not nor ever was the law in Florida. Nor can the court’s reasoning be reconciled with the Supreme Court case of Gau-det, supra, holding that the wrongful death statute created an independent cause of action.

      . The usual method of dealing with the two causes of action so as to prevent double recovery has been to allocate the pain and suffering, expenses and loss of earnings of the decedent up to the date of his death to the survival action and hence to the estate and survivors. W. Prosser, supra at 906.

      . Whether the acts giving rise to the personal injury claim also caused death is not an issue in this case. Where there is such an issue, it would have to be litigated as part of the wrongful death action.

      . Unlike the dissent, we believe Florida court decisions prior to Shiver v. Sessions, supra, consistently hold that Florida’s wrongful death act creates an independent cause of action in the statutory beneficiaries. The court in Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894), held, in part, that even though certain statutory beneficiaries had standing to sue under Florida’s wrongful death act, they could not recover where the doctrine of comparative negligence prevented liability on the part of the defendant to the decedent. See, e.g., Collins v. Hall, supra. These cases are in complete accord with our findings above that the “event which could have entitled the person injured to maintain an action and recover damages” refers to the initial liability of the tortfeasor to the decedent and that a prior determination of liability or lack of liability is binding on the issue of that liability in a subsequent wrongful death action. We find no binding precedent for holding that a judgment recovered for personal injuries during a lifetime bars a subsequent wrongful death action on behalf of the statutory beneficiaries in these cases, in Warren v. Cohen, supra, or in the cases cited by the court in Warren, supra. Roberts v. Union Carbide Corp., 415 F.2d 474 (3d Cir. 1969), is a federal case in which the court noted that the New Jersey supreme court had not yet ruled on the issue. The subsequent decision of the New Jersey supreme court in
        Alfone v. Sarno, supra, has destroyed any prec-edential value Roberts, supra, may have had. The case of Schlavick v. Manhattan Brewing Co., 103 F.Supp. 744 (N.D.Ill.1952), brought under the Indiana wrongful death statute, is a settlement case. The holding in Warren v. Cohen, supra, at 131, is limited to a “release signed by the decedent prior to her death.”

      . § 768.19, Fla.Stat. (1979), quoted supra.

      . Chapter 3499; statute approved February 28, 1883.


author: NESBITT, Judge. SCHWARTZ, Judge

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Susan HELMS, as personal representative of the estate of Lawrence Helms, deceased; Conerec, Inc., a Florida corporation; Stresscon International, Inc., a Florida corporation; & Tripp Crane Service, Inc., a Florida corporation, Appellees.
    No. 80-273.
    District Court of Appeal of Florida, Third District.
    March 2, 1982.
    Rehearing Denied May 18, 1982.
    Horton, Perse & Ginsberg and Edward A. Perse, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Miami, for appellant.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Spence, Payne, Masington & Grossman, Lane, Mitchell & Harris and C. Robert Murray, Jr., Miami, for appellees.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   NESBITT, Judge.

The main issue on appeal is whether the activities engaged in by the insured constituted unloading, for which coverage is excluded; or whether the insured’s activity constituted erection and placement, for which there would be coverage. The trial court found for the insured and we affirm.

The judgment appealed from was rendered upon the stipulation of facts which, in part, provides:

This accident occurred on August 25, 1977 at approximately 9:40 A.M. It occurred at 9445 S. W. 24th Street which was the construction site of the Dade County West Regional Library. The decedent, Larry Helms, was on the jobsite working for The Dublin Company. CON-EREC, INC., a Florida corporation, had a contract to erect concrete slabs which comprised a major construction element of the building. CONHAUL, INC., a Florida corporation, picked up the slabs at the plant and delivered same to the jobsite. Approximately 15% of the slabs were “sunscreens” and such slabs had to have special rigging put on same so that the crane could insert them into the building. The remaining 85% of the slabs required no special rigging and could be inserted directly into the building.
On August 24, 1977, the day before the accident, the CONHAUL tractor-trailer came to the jobsite with a load of concrete slabs and went to the Northwest corner of the building. A Tripp crane was utilized along with CONEREC’s employees to take the top slab from the truck by lifting it with nylon straps. The slab was a “sunscreen” slab and was placed on steel sawhorses where the special rigging was attached thereto. The straps were removed and the crane then used cables to lift the slab into the building.
The slab did not fit at the particular location and same was then replaced upon the steel sawhorses and the special rigging was removed. Thereafter, the nylon straps were utilized to lift the slab and place it back onto the trailer. The tractor and trailer were then driven to the Southwest corner of the building whereby the tractor was unhooked and left the jobsite.
On the following morning — 8/25/77— this same slab was rigged again with the nylon straps with the intention of placing the slab again on the steel sawhorses for the special rigging and then inserting same in place on the Southwest side of the building. CONEREC’s employees put the straps around the slab and the slab was lifted by the crane so that the slab had cleared the trailer. After checking the straps and the balance of the slab, the crane then lifted the slab up into the air and swung same in a counterclockwise motion, for a distance of 65-70 feet away from the trailer and at that point while the slab was over the building, the straps broke and the accident occurred. At the time the accident occurred, the slab was being moved to be placed on the steel sawhorses for the special rigging mentioned above.

CONEREC purchased a comprehensive general liability policy from United States Fidelity & Guaranty Company (USF&G) providing coverage up to $1,000,000. The same policy also afforded CONEREC $1,000,000 contractual liability coverage. The liability coverage contained an exclusion which states that no coverage is available for bodily injury or property damage arising from loading or unloading an automobile (which included a trailer or semitrailer). The contractual liability coverage contained no such exclusion.

USF&G was joined as an original party defendant by the original plaintiff and provided a defense in the wrongful death action. Prior to trial, however, USF&G raised the present coverage dispute which was then severed to abide the post-judgment proceedings. After the original judgment was affirmed here, Stresscon International, Inc. v. Helms, 390 So.2d 139 (Fla. 3d DCA 1980), Stresscon then commenced a cross-claim against CONEREC and USF&G on a third party beneficiary theory. Because the judgment appealed from found that both the contractual liability policy and the comprehensive general liability policy each separately afforded coverage, Stress-con is presently aligned with the survivors and the decedent’s estate against USF&G.

We begin our analysis by observing that the burden was upon USF&G to demonstrate the applicability or existence of an exclusion of its general liability policy. Liberty Mutual Insurance Company v. Flitman, 234 So.2d 390 (Fla. 3d DCA 1970). While the term “unload” is simple, the application of the definition of the facts of the case creates a necessity for an interpretation or choice between two or more possible meanings. When an ambiguity such as this exists in an insurance policy, any uncertainty must be construed against the insurer and in favor of the insured. Drisdom v. Guarantee Trust Life Insurance Company, 371 So.2d 690 (Fla. 3d DCA 1979); Fidelity and Casualty Company of New York v. Garcia, 368 So.2d 1313 (Fla.3d DCA), cert. denied, 378 So.2d 344 (Fla.1979).

In light of these rules of construction and the stipulated facts, we find that the sunscreen in question had passed beyond the unloading process and that, at the time that it fell and killed plaintiff’s decedent, the workmen involved were engaged in erecting it onto the building. If the sunscreen had been placed on the steel sawhorses, rigged, hoisted, and lifted toward the building but would not fit in place on numerous occasions (which would cause a reversal and rephasing of the same process), no one would seriously contest a finding that the sunscreen had passed beyond the “unloading” phase and actively entered into the construction phase so that any further movement or consequential “unloading” was merely incidental to the construction process. In this case, the trial court was well within its province in finding that after the first attempt was made but failed on the day prior to the accident, the particular sunscreen passed beyond the unloading stage and was well into the construction phase of the project. Clearly, after the sunscreen in question had been transported to the jobsite and was initially unloaded from the trailer and came to rest after having been placed upon the steel sawhorses for rigging, any further movement was only incidental to the construction process. See, General Accident Fire and Life Assurance Corporation v. Liberty Mutual Insurance Company, 260 So.2d 249 (Fla. 4th DCA 1972).

Consequently, we affirm the trial judge’s decision that coverage exists under the comprehensive general liability policy written by USF&G. We do not find merit in the other issues on appeal.

Affirmed.

SCHWARTZ, J., dissents from denial of rehearing.

SCHWARTZ, Judge

(dissenting in part).

I would reverse the determination that the liability coverage was available, because I believe that the rigging of the sunscreen was simply part of the process by which its “unloading” was being effected and that it makes no difference that a similar operation had aborted the previous day. Indemnity Insurance Co. of North America v. Old Dominion Hoisting Service, 251 F.2d 382 (D.C.Cir.1958); Donahue Construction Co. v. Transport Indemnity Co., 7 Cal.App.3d 291, 86 Cal.Rptr. 632 (1970); Colby v. Liberty Mutual Insurance Co., 220 Cal.App.2d 38, 33 Cal.Rptr. 538 (1963); Industrial Indemnity Co. v. General Insurance Co. of America, 210 Cal.App.2d 352, 26 Cal.Rptr. 568 (1962); Employers Mutual Liability Insurance Co. of Wisconsin v. Pacific Indemnity Co., 167 Cal.App.2d 369, 334 P.2d 658 (1959); Barrois v. Service Drayage Co., 250 So.2d 135 (La.App.1971), cert. denied, 259 La. 806, 253 So.2d 66 (1971); Cinq-Mars v. Travelers Insurance Co., 100 R.I. 603, 218 A.2d 467 (1966); see, State ex rel. Butte Brewing Co. v. District Court of Second Judicial District, 110 Mont. 250, 100 P.2d 932 (1940); Hardware Mutual Casualty Co. v. St. Paul Mercury Indemnity Co., 264 Wis. 230, 58 N.W.2d 646 (1953); c. f., General Accident Fire & Life Assurance Corp. v. Liberty Mutual Insurance Co., 260 So.2d 249 (Fla. 4th DCA 1972); see generally, Annot. — Risks Within “Loading and Unloading” Clause of Motor Vehicle Liability Insurance Policy, 6 A.L.R. 4th 686 (1981).

I agree to affirmance as to the contractual liability coverage.

ON REHEARING

In its motion for rehearing, appellant brings to light some language which tends to create confusion as to this court’s decision. For purposes of clarification, the sentence preceding the citation to General Accident Fire and Life Assurance Corporation v. Liberty Mutual Insurance Company, 260 So.2d 249 (Fla. 4th DCA 1972) is replaced by the following:

We need not consider the “coming to rest” doctrine and the “completed operations” doctrine, see General Accident Fire and Life Assurance Corporation v. Liberty Mutual Insurance Company, 260 So.2d 249 (Fla. 4th DCA 1972), because it is clear in the present case, that unloading was completed under either test, after the sunscreen was transported to the job-site, and initially removed from the trailer. Any further movement was incidental to the construction phase.

In all other respects, the motion for rehearing is denied.


author: MILLS, Judge.

text:
    CITY OF GAINESVILLE, Appellant, v. GNV INVESTMENTS, INC., a Florida corporation, and Wayne Fann and Charles Powers d/b/a Sun Skate Center, Appellees.
    No. AC-88.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    David LaCroix of Sieg, Comfort, Hawk, LaCroix & Reid, P. A., and J. T. Franken-berger, Gainesville, for appellant.
    William N. Long of Scruggs & Carmichael and Leonard E. Ireland, Jr. of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellees.
   MILLS, Judge.

The City of Gainesville (City) appeals the trial court’s order finding that the City’s Plan Board unlawfully and arbitrarily denied approval of appellees’ site plan petition to construct a skate center on real property located within the City and holding that the City is estopped from enforcing a new, more restrictive zoning ordinance on appel-lees’ real property. The order also ordered the City to issue a building permit for construction of the proposed skating center. We affirm.

On 29 April 1980, appellee, Sun Skate Center, contracted to purchase real property from appellee, GNV Investment. The parcel was zoned “shopping center” which permitted use of the land as a skate center. Sun Skate Center prepared a site plan petition and submitted it to the City Plan Board. The plan met all “technical requirements” of the City’s ordinances, regarding site plan approval. Under the City’s ordinances, the Plan Board is delegated the authority to approve or deny site plans. The site plan merely regulates the layout of a piece of property, the design of the buildings, and the actual locations of the buildings on the site. The City’s zoning ordinances control the uses to which a particular piece of property may be put. The Plan Board, therefore, is not to be concerned with a particular use of a piece of property as long as it fits within the permitted uses of the City’s zoning ordinances.

The record amply supports the trial judge’s finding that the Plan Board unlawfully and arbitrarily denied Sun Skate Center’s petition for site plan approval. The Plan Board members voted to deny the petition because of the parcel’s intended use as a skate center, not because it failed to comply with the appropriate criteria for site plan approval.

During the site plan approval process, on 7 July 1980, the City Commission, without notice, declared a moratorium on any development of lands zoned “shopping center” until a rewrite of the City zoning ordinances could be accomplished. The City Commission’s minutes reveal that the Commission was specifically apprised of the proposed skating center on appellees’ land zoned “shopping center” prior to declaring the moratorium, and that the moratorium was an attempt to stop this development. The zoning rewrite was to contain a new zoning classification, “neighborhood shopping center,” which prohibited use as a skating center. The moratorium was also passed with the understanding that any shopping center parcel not neighborhood oriented could be brought to the Commission for review and referral to the Plan Board for special exception. On 9 July 1980, the Commission passed a resolution reaffirming and ratifying its earlier moratorium.

The City’s new zoning ordinance was enacted on 24 November 1980. On 12 January 1981, appellees’ property was rezoned to “neighborhood shopping center” which precluded use as a skating center, and the moratorium was lifted on shopping center development. Appellees’ same site plan, previously denied on 8 July 1980, was approved on 10 February 1981, although ap-pellee could no longer construct a skating center under the new zoning classification.

We hold the moratorium and resolution, passed without notice, were an ineffective attempt to suspend and amend the City of Gainesville’s existing zoning ordinances. We find the City’s argument that it has the power, under its general home rule powers, to suspend zoning ordinances by resolution without notice to be without merit. Each case cited by the City in support of that proposition dealt with a situation where a municipality passed an interim zoning ordinance rather than resolution. In City of Miami Beach v. State, 108 So.2d 614 (Fla. 3d DCA 1959), the court held that the authority to materially limit the use of property ought not to be inferred under a general grant of authority found in the City’s charter, especially when there was a specific grant of authority from the legislature concerning zoning which contained limitations on that power such as notice, public hearings, etc. The court went on to say that these limitations were designed to protect the public from hasty or ill-advised use of that authority. In this case, the City of Gainesville has a specific grant of power concerning zoning, Section 166.041(3)(c), Florida Statutes (1979), which contains specific limitations (notice, opportunity to be heard, etc.) on the use of that power. The attempted moratorium was, therefore, invalid and ineffective regarding appellees’ proposed development since the City failed to comply with the specific notice requirements regarding zoning ordinances. City of Miami Beach v. State, supra; Gulf and Eastern Development Corp. v. City of Fort Lauderdale, 354 So.2d 57 (Fla.1978); and generally Annot., 30 A.L.R.3d 1196 (1970).

The remaining issues raised by the City are without merit. Since the City was not a party to the contracts between appel-lees, it may not raise any issue regarding the applicability of the statute of frauds to these contracts. Commercial Union Insurance Co. v. Padrick Chevrolet, 196 So.2d 235 (Fla. 4th DCA 1967).

Accordingly, the order of the trial court is affirmed.

WENTWORTH and THOMPSON, JJ., concur.


author: McCORD, Judge.

text:
    Lawrence E. COOPER, Appellant, v. John P. PARIS, individually and doing business as Paris Properties, Appellee.
    No. AF-310.
    District Court of Appeal of Florida, First District.
    March 15, 1982.
    Rehearing Denied May 21, 1982.
    Dana G. Bradford, II, of Mahoney, Had-low & Adams, Jacksonville, for appellant.
    Jerry W. Gerde of Davenport, Johnston, Harris & Gerde, Panama City, for appellee.
   McCORD, Judge.

Cooper, a Georgia investor, appeals from a final summary judgment holding that he is not entitled to restitution for monies paid under a contract which was void and illegal pursuant to the provisions of Chapter 475, Florida Statutes. We reverse.

In mid-1973, appellee Paris, a licensed real estate broker under the laws of the State of Georgia, learned that certain Gulf County, Florida, acreage was on the market. He then followed a course of action that ultimately led to the formation of a binding contract for the sale of the land between a real estate investment company, Hilton & Associates, and Cooper. Paris’s activities in this regard included telephone calls from Atlanta to Panama City for the purpose of discussing the property and the terms of its sale, a visit to the property, preparing Cooper’s written offer of purchase, working with Cooper’s attorneys on the sales contract, returning to Panama City for further discussions and negotiations concerning the contract, and attending the closing of the sale in Panama City in February of 1974. As a result of this sale Paris received a $315,070 commission in the form of a $215,070 note secured by the real property and a check for $100,000 from Cooper. Paris then returned the $100,000 check to Cooper and, in return, was given a check for $25,000 and a demand note for $75,000.

Cooper subsequently defaulted on his payments to both Hilton & Associates and Paris. When Hilton & Associates initiated foreclosure proceedings in circuit court, Paris cross-claimed against Cooper seeking recovery under the promissory notes. Cooper, in turn, counterclaimed against Paris, seeking to have Paris’s conduct declared to be that of an unlicensed real estate broker, thus invalidating the promissory notes held by Paris. Cooper also sought recovery of the sums, $25,000 and $12,904, which he had already paid to Paris. The $12,904 figure constituted payment on the $75,000 demand note.

The major dispute between Cooper and Paris was decided in favor of Cooper, the trial court finding that Paris had acted in the capacity of an unlicensed real estate broker in the State of Florida, thereby fatally tainting the promissory notes. This finding was upheld on appeal. Paris v. Hilton, 352 So.2d 534 (Fla. 1st DCA 1977). In subsequent proceedings on the secondary issue of whether Cooper was entitled to restitution for payments already made to Paris, the trial court granted final summary judgment in Paris’s favor.

Both parties agree, and decisional law overwhelmingly supports the view, that this contract was void and illegal ab initio:

The broad basis for the doctrine that contracts of certain unlicensed persons are unenforceable is that ■ the courts should not lend their aid to the enforcement of contracts where performance would tend to deprive the public of the benefits of regulatory measures.

Williston on Contracts, § 1765, p. 247. This general rule is subject to the exception that where the parties are not in pari delicto, the innocent party may recover. See Singleton v. Foreman, 435 F.2d 962 (5th Cir. 1970). Here, Paris argued that Cooper is in pari delicto with him because both Cooper and his attorney knew that Paris was not licensed to transact real estate business in Florida. While the evidence is conflicting on whether Cooper himself knew that Paris was not licensed, Cooper’s attorney admitted that he knew Paris was not licensed as a real estate agent in Florida. However, even if Cooper knew of Paris’s status and nevertheless participated in making the illegal contract, this fact would not prevent him from maintaining an action for restitution:

When the legislature enacts a statute forbidding certain conduct for the purpose of protecting one class of persons from the activities of another, a member of the protected class may maintain an action notwithstanding the fact that he has shared in the illegal transaction. The protective purpose of the legislation is realized by allowing the plaintiff to maintain his actions against the defendant within the class primarily to be deterred. In this situation it is said that the plaintiff is not in pari delicto. This rule is applied in favor of a person seeking to recover back money for services performed by á person lacking a required license to perform such services, (emphasis supplied)

Annot. 74 ALR3rd 637, 662. The manifest purpose of Chapter 475, Florida Statutes, is to prevent unscrupulous real estate practices and to promote the protection of the consumer/purchaser. See Morgan v. Glassman, 285 So.2d 673 (Fla. 3rd DCA 1973). The public interest is protected where personal service is to be rendered by the licensed real estate agent through a requirement that the license may be issued only upon satisfactory proof of honesty, truthfulness, good reputation, competency, and experience. § 475.17, Fla.Stat. To this end, the Act subjects the unlicensed real estate agent not only to forfeiture of his right to compensation but also to criminal liability. § 475.42, Fla.Stat. While we certainly do not condone the actions of Cooper or his attorney, the statute prescribes punishment against only one party to the agreement, Paris. Therefore, to refuse to return the monies paid would affront this Court’s affirmative duty to see that the party violating public policy not benefit in any way as a result of his wrongdoing. Local No. 234 v. Henley & Beckwith, Inc., 66 So.2d 818 (Fla.1953). Otherwise, Paris stands to be rewarded for his illegal activities, a result to which this Court cannot subscribe. Moreover, by allowing Paris to keep these monies this Court would implicitly encourage unlicensed persons to seek up-front money, thereby eviscerating the salutary purpose of Chapter 475 by permitting those persons to keep any funds garnered prior to a judicial declaration that the contract is void. Accordingly, this cause is REVERSED and REMANDED for entry of judgment in favor of Cooper.

ERVIN and SHAW, JJ., concur.


author: PER CURIAM.

text:
    Nancy Lynn MARRS and George Rudolph, Appellant, v. STATE of Florida, Appellee.
    No. AD-358.
    District Court of Appeal of Florida, First District.
    March 22, 1982.
    Rehearing Denied May 27, 1982.

      J. David McFadden, Daytona Beach, for appellant.
    Stephen Preisser, Asst. State Atty., Pensacola, for appellee.
   PER CURIAM.

Petitioners were adjudicated guilty, after pleading nolo contendere, of violating Es-cambia County Ordinance 76 — 1, Section 4. Their conviction in the Escambia County Court was affirmed by the Circuit Court without opinion. They now petition this Court for a writ of certiorari. We have jurisdiction. Art. V, § 4(b)(3), Fla.Const. (1972); Fla.R.App.P. 9.030(b)(2)B.

Petitioners were charged with a violation of Escambia County Ordinance 76 — 1, Section 4, which provides:

It shall be unlawful for any owner, operator or person in charge of any commercial establishment within Escambia County, Florida, to knowingly permit, encourage, induce or in any manner promote the unlawful exposure or exhibit of the sexual organs, genitals, buttocks, or breasts of any person, whether such parts are covered or uncovered, within the confines of such commercial establishment.

After their motion to dismiss attacking the constitutionality of the statute was denied, the petitioners pled nolo contendere to the charge, reserving their rights for appellate review.

Doubtless, an ordinance or statute is presumed to be constitutional. However, it is well settled that the language of a statute or ordinance must convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. Zachary v. State, 269 So.2d 669 (Fla.1972). When people of ordinary intelligence must necessarily guess at its meaning and differ as to its application, the statute or ordinance violates the due process clause of the 14th Amendment to the United States Constitution and Article I, Section 9, of the Florida Constitution (1968). Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State ex rel. Lee v. Buchanan, 191 So.2d 33 (Fla.1966). In view of the foregoing principles, we must conclude that this ordinance does not pass constitutional muster.

In reaching this conclusion we note the rather succinct observation made by Judge Hubbart of the Third District Court of Appeal regarding a somewhat similar municipal ordinance:

In view of the scanty female apparel which is now socially acceptable in public particularly on beaches, the description of the type of clothing forbidden by this ordinance is extremely unclear. Moreover, the ordinance does not limit the proscribed acts as to place.

Steffens v. State ex rel. Lugo, 343 So.2d 90, 91 (Fla. 3rd DCA 1977). The Escambia County Ordinance suffers from the same infirmities. It, too, is rather vague as to the type of clothing forbidden. Additionally, it does not limit the proscribed acts sufficiently as to place. Here, too, a woman might very well be in violation of the ordinance if she bared her breasts while taking a shower in a public shower stall at a spa or a gym or, conceivably, while undergoing an examination at a doctor’s office. Compare Hoffman v. Carson, 250 So.2d 891 (Fla. 1971), appeal dismissed, 92 S.Ct. 453, 404 U.S. 981, 30 L.Ed.2d 365 (1971) (Proviso in Section 800.03, Florida Statutes, that: “This act shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose,” sufficiently restricts the application of the statute so as to bring it within common understanding.)

Accordingly, we hold that Escambia County Ordinance 76 — 1, Section 4 is unconstitutional as being void for vagueness. The petition for writ of certiorari is GRANTED, and this cause is REVERSED and REMANDED to the Escambia County for further proceedings consistent with this opinion.

SHAW, JOANOS and THOMPSON, JJ., concur.

      . It shall be unlawful for female waitresses, entertainers, or other employees of any public business to expose themselves above the waist to the extent that the breasts are bare or so thinly covered by mesh, transparent net, lawn skin tight materials which are flesh colored and worn skin tight, so as to appear uncovered.
      It shall also be unlawful for any owner, manager, or other employees of such an establishment to permit that described immediately above . . .


text:
    Rex C. BISHOP, Jessie N. Karp, and Stanley E. Rosenberger, Appellants, v. STATE of Florida, DIVISION OF RETIREMENT, Appellee.
    No. AE-458.
    District Court of Appeal of Florida, First District.
    March 22, 1982.
    Rehearing Denied May 21, 1982.

      Bonnie S. Satterfield of Patterson & Traynham, Tallahassee, for appellants.
    William A. Frieder, Miami, for appellee.
   McCORD, Judge.

Appellants, three retired teachers, appeal from a final order of the State of Florida Division of Retirement, denying their request for either appropriate adjustments in their annuity payments under the Teachers Retirement System or return of the funds they had contributed to the annuity program under that system.

Appellants are teachers who retired in 1973 and 1974, respectively, having satisfied the requirements of Section 238.07(2)(d), Florida Statutes (1973) (Plan D), of the Teachers Retirement System. This plan allows for a teacher’s retirement upon reaching the age of fifty after twenty-five years of service. It provides a pension equal to 1% of the individual member’s average final compensation for teaching times the number of years served as a teacher. It also provides an annuity funded by the individual teacher’s accumulated contributions. Plan D was designed to provide an annual retirement allowance equal to approximately one-half of the average' final compensation of the teacher after twenty-five years of service at age fifty.

An actuary assisted in setting up Plan D in 1946; however, no actuary was again utilized by the administrators of the fund to review the plan until the mid-1950’s. The . initial rate of an individual teacher’s contribution to Plan D had been set at 9.24% to 13.58% of his or her salary, depending upon the teacher’s age when entering the plan. By 1951 it had become apparent to the administrators that Plan D was not obtaining the funds required to provide the 1% annuity. This shortfall was due to several factors: a failure to update the actuarial review, low earnings on investments, and increasing teacher’s salaries. Despite this shortfall, the contribution rate was raised only once in 1957 to 9.49% to 13.83% of salary because of a legislative increase in the Survivor’s Benefit Fund. § 238.09(5), Fla.Stat. (1957). As a result of this shortfall in Plan D, appellants are receiving approximately $1,000 less per year in retirement pay, respectively. While the appellants retired in 1973 and 1974, this petition for administrative relief pursuant to Section 120.57(1), Florida Statutes, was not initiated until 1980. Holding that the statute of limitations has run on appellants’ claims, the hearing officer dismissed their petition. The Division of Retirement adopted this recommendation in its final order.

The question arises as to whether this claim sounds in contract or in tort. We are of the opinion that the legal relationship between the appellants and the Division of Retirement is that of contract. By electing to accept the provisions of Plan D, and having the necessary deductions drawn from their salaries in order to fund the retirement annuity, petitioners, upon retiring, became entitled to their pensions. The terms of the agreement are to be found in the statute, Sections 238.07(2)(d) and 238.-07(6), Florida Statutes. As such, the right to benefits provided under the pension plan became vested rights of contract. See State ex. rel. O’Donald v. Jacksonville Beach, 142 So.2d 349 (Fla. 1st DCA 1962), aff’d, 151 So.2d 430 (Fla.1962).

The next consideration is at what time did the appellants’ causes of action accrue. They retired in 1973 and 1974, at which time their retirement benefits vested. Arnow v. Williams, 343 So.2d 1309, 1310 (Fla. 1st DCA 1977). The Division thus urges that any breach of contract occurred as of the appellants’ respective retirement dates and, therefore, that the statute of limitations has long since run on that breach. We disagree. It is well established that in the case of debts payable by installments, the statute of limitations runs against each installment from the day it becomes due. Isaacs v. Deutsch, 80 So.2d 657 (Fla.1955). Here, the Division issues each month to appellants a retirement payment. If each payment is less than the amount to which appellants are entitled, the Division’s failure to pay the amount to which they are entitled would constitute a continuing breach of contract. We, therefore, disagree with the hearing officer’s and the Division’s conclusion that the statute of limitations had run on this contract claim.

This conclusion, however, does not end our analysis. Section 238.07(6) provides:

Upon service retirement under plan D, a member shall receive a service retirement allowance which shall consist of:
(a)an annuity which shall be the actuarial equivalent of his accumulated contributions at the time of his retirement; and
(b) a pension, in addition to his annuity,, of one one-hundredth of his final compensation multiplied by the number of his years of membership service since he last became a member; and
(c) if the member has a prior service certificate in full force and effect, an additional pension of one-fiftieth of his average final compensation multiplied by the number of years of service certified upon his prior service certificate.

As noted previously, the terms of the agreement are found in the statute, and nothing in Sections 238.07(2)(d) and 238.07(6) guarantees to appellants an annual retirement allowance equal to one-half of their average final compensation. Indeed, the Division’s payments fully comport with these provisions, for the record affirmatively demonstrates that they are receiving the actuarial equivalents of their accumulated contributions. In other words, the Division and its predecessors have but created an expectancy that a compensation level of one-half of one’s average final compensation be achieved. The failure to achieve that expectancy because of a shortfall in the annuity cannot be transformed into a breach of contract by the state.

One might also argue that the appellants’ claims sound in tort. Without deciding whether such an action would be appropriate, we observe that one must initiate a tort action against the state within three years after the claim arises. § 768.28(6), Fla.Stat. Appellants’ benefits vested at the time of their respective retirements in 1973 and 1974. Arnow, supra. All the conceivably negligent acts or omissions of the state occurred prior to that time. Since all the facts known now were evident at that time, the statute of limitations provided by Section 768.28(6) ran several years ago.

Appellants have received their annuities since they retired in 1973 and 1974. They ask now, as an alternative prayer, that their contributions to the annuity fund be returned to them on the theory that the Division of Retirement and its predecessors have been guilty of a breach of trust in not properly managing the fund. They make an equitable argument in this regard but cite no authority applicable to the facts of this case. There is no evidence that the state or its agents have committed an affirmative act by which an equitable estop-pel could be declared against the State. See Greenhut Construction Co. v. Henry A. Knott, 247 So.2d 517, 524 (Fla. 1st DCA 1971). In the absence of such evidence, we decline to grant this alternative prayer for relief.

Accordingly, the final order of the Division of Retirement is AFFIRMED.

ERVIN and SHAW, JJ., concur.

      . In so ruling we do not decide whether the limited waiver of sovereign immunity or breach of contract actions against the state in Chapter 120, Florida Statutes [See, generally, Graham Contracting, Inc. v. Dept. of General Services, 363 So.2d 810 (Fla. 1st DCA 1978)] applies to appellants’ claims, which claims accrued before January 1, 1975, the effective date of the relevant provisions of Chapter 120. Ch. 74.310, § 6, Laws of Fla.


text:
    Charles E. McDONALD, Appellant, v. Joyce D. McDONALD, Appellee.
    No. 81-1215.
    District Court of Appeal of Florida, Third District.
    March 30, 1982.
    Rehearing Denied May 28, 1982.
    Eleanor Levingston Schockett, Miami, for appellant.
    Edward S. Kaplan, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   PER CURIAM.

We find no error or abuse of discretion has been demonstrated with respect to the trial judge’s rulings which (a) awarded the wife a one-half interest in real property in Kentucky as lump sum alimony and provided for appointment of a commissioner to convey the property; and (b) awarded the wife periodic alimony. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Williamson v. Williamson, 367 So.2d 1016 (Fla.1979); Schwartz v. Schwartz, 396 So.2d 806 (Fla. 3d DCA 1981); Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980); Sec. 61.08, Fla.Stat.

Affirmed.


author: McCORD, Judge. ROBERT P. SMITH, Jr., Chief Judge,

text:
    AJAX CONSTRUCTION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS and Dyson and Company, Appellees.
    No. AK-70.
    District Court of Appeal of Florida, First District.
    April 2, 1982.
    Rehearing Denied May 27, 1982.

      Philip S. Parsons of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellant.
    Michael J. Minerva, Gen. Counsel, Dept, of Corrections, Tallahassee, and Barry Sil-ber of Levin, Warfield, Middlebrooks, Mabie & Magie, P. A., Pensacola, for appellees.
   McCORD, Judge.

This is an appeal of nonfinal agency action denying appellant’s request for formal proceedings. We reverse.

On September 14, 1980, the Department of Corrections (Department) sought bids for the construction of Prison Building Number 14 and alternate bids for the construction of Prison Building Number 15 at Tomoca Correctional Institute. Bidders were required to list in the submitted bids each subcontractor they intended to use for the project. The sealed bids received were open on December 22, 1981. Appellant, Ajax Construction, Inc., was the low bidder on Building Number 14, but appellee, Dyson and Company (Dyson), submitted the lowest combination bid for both buildings.

On January 12, 1982, Dyson wrote a letter to the Department indicating that it intended to use a certain subcontractor which had not been listed in its original bid. On January 14, 1982, appellant sent a telegram to the Department protesting that by this change Dyson had not complied with the listing requirements. This was followed by a formal letter of protest on January 19, 1982. On January 21, 1982, the Department notified each bidder by mail of its intention to award the contract to Dyson. That letter also stated “failure to file a protest within the time prescribed by Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.” The letter was received by appellant on January 25, 1982. On February 9, 1982, appellant filed a petition for proceedings under Section 120.57(1), Florida Statutes. Dyson moved to quash or dismiss appellant’s protest. The Department came to the conclusion that the time limit set forth by Section 120.53(5) governed the case and that such time limit was not complied with in that appellant’s protest was premature. The Department noted that if, upon review, it were found that appellant did not waive its right to Chapter 120 proceedings, the Department would not refuse a request for 120.57(2) proceedings. This appeal followed.

We hold that appellant did not waive its right to Chapter 120 proceedings. The situation here is analogous to the ruling of the Supreme Court in Williams v. State, 324 So.2d 74 (Fla.1975). There, the Supreme Court ruled that a notice of appeal which is prematurely filed shall exist in a state of limbo until the judgment in the respective civil or criminal case is rendered; that at the time of rendition, the notice of appeal shall mature and shall vest jurisdiction in the appellate court. Having already filed its protest with the Department, appellant here was not required to file an additional protest in response to the Department’s January 21 notice to bidders. The Department could have stated in its January 21. notice that a previous protest would be considered abandoned unless renewed within the time limit provided by the aforesaid statute, but the notice as promulgated did not have that effect.

Reversed and remanded.

BOOTH, J., concurs.

ROBERT P. SMITH, Jr., C. J., dissents, with written opinion.

ROBERT P. SMITH, Jr., Chief Judge,

dissenting.

We are concerned here with an order of the Department of Corrections denying appellant Ajax section 120.57 proceedings on a disputed agency decision to award a contract to Dyson, another bidder. The Department found that Ajax did not protest the agency’s proposed decision and request APA processes at the time and in the manner required by section 120.53(5), Florida Statutes (1981) — in other words, that Ajax did not take advantage of the “clear point of entry” to APA processes afforded by the controlling statute. I agree with the Department and so dissent from the Court’s decision.

Liberality in affording APA proceedings on protests aimed at proposed agency action is ordinarily to be commended, but in the context of disputes arising from the bidding of public works and purchases, orderliness and predictability of consequences are equally to be valued. Three distinct interests are in competition when a contracting agency announces its award: the low bidder wants to sign a contract and begin work; his bidding competitors want to prevent that and to have their protests heard and sustained by the agency; and the agency wants to proceed as rapidly as possible in compliance with the law, so to preserve the work and the winning bid (no matter whose bid it is) against loss by delay and litigation. Successfully protecting all three competing interests depends on holding them in a delicate balance; too heavy a hand laid on in support of one of those interests, even so worthy an interest as being heard in section 120.57 proceedings, inevitably harms other important values.

We have repeatedly called upon agencies to provide in their free-form exchanges with affected parties a “clear point of entry” to APA processes. This, we have said, is a necessary prerequisite for any later agency decision denying a party APA remedies on the ground that they were not timely requested. E.g., Capeletti Bros., Inc. v. State Department of Transportation, 362 So.2d 346, 348 (Fla. 1st DCA 1978), cert. den., 368 So.2d 1374 (Fla.1979); Bio-Medical Applications of Ocala, Inc. v. Office of Community Medical Facilities, 374 So.2d 88 (Fla. 1st DCA 1979); United States Service Industries-Florida v. State Department of Health and Rehabilitative Services, 385 So.2d 1147, 1148-49 (Fla. 1st DCA 1980). Responding to that call in this most needful context of the contract bidding process, the 1981 Legislature provided in section 120.-53(5) minimum standards for agency rules providing a clear point of entry to losing bidders who wish to pursue their disputes of the announced award in section 120.57 proceedings. Though the statute is not in all respects a model of clarity, it is clear in requiring that a disappointed bidder file his protest of the agency’s announced decision within a certain number of hours and days after the decision is announced in one of two particular ways.

In this rather simple case, Ajax “protested” by free-form communications, its telegram of January 14 and its letter of January 19, 1982, that Dyson’s bid opened December 22 “did not list subcontractors as required by bid documents.” But Ajax did not timely protest or request APA proceedings on the Department’s announced decision of January 21 to award the work to Dyson. Therefore section 120.53(5) foreclosed section 120.57 proceedings on Ajax’s grievance and let stand the Department’s award of January 21. The Department so held, having no motive but to apply section 120.53(5) correctly and to conclude a contract with one bidder or the other as soon as possible. Reversing, the Court declares that Ajax’s telegram and letter protests of January 14 and 19, aimed at Dyson’s bid opened December 22, stood over as a protest of the Department’s decision announced January 21. The Court’s decision, though well-intended to protect Ajax’s interest in having a hearing, is not and in my opinion cannot be explicated in the terms of the statute. The statute is thus bent to the Court’s will in order to achieve what is considered to be a just result. In this I apprehend that the Court entirely upsets the system of balanced interests that the statute sought to preserve, and creates abundant new opportunities for delay, confusion, and litigation in an area that can scarce afford new complexity.

The Court’s analogy to Williams v. State, 324 So.2d 74 (Fla.1975), a criminal appeal held timely when filed after signing of the judgment and sentencing, but before the judgment was recorded and thus “rendered,” is in my opinion untenable; that case involved different interests, a rule of different purposes, and quite different facts.

Chapter 81 — 296, Laws of Florida, added subsection 120.53(5) to require agency rules governing “resolution of protests arising from the contract bidding process” and specifying minimum rule requirements in relevant part as follows:

(a) The agency shall provide notice of its decision or intended decision concerning ... a contract award ... by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. The notice required by this paragraph shall contain the following statement: “Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes.”
(b) Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120.
(c) Upon receipt of a notice of protest which has been timely filed, the agency shall stop the . . . contract award process until the subject of the protest is resolved by final agency action [unless the agency makes emergency findings] ....
(d) [Provides section 120.57(1) or (2) proceedings after a 14-day opportunity for “mutual agreement between the parties”]

By this statute the clear point of entry for a timely protest of proposed agency action awarding a public contract is a designated window in time immediately following the agency’s giving of “notice of its decision or intended decision” either by “posting the bid tabulation at the location where the bids were opened” or by “certified United States mail, return receipt requested.” The statute even specifies that the critical “notice required by this paragraph” be self-identifying as an APA-significant event occurring in the midst of free-form proceedings: it requires that the notice state, in words prescribed by the statute itself, that “Failure to file a protest within the time prescribed in s. 120.53(5)” shall forfeit the right to APA proceedings. The Department’s notice to all bidders dated January 21, 1982, and mailed certified mail, return receipt requested, followed the statute to the letter and included the prescribed warning statement, preceded by the words: “The Administrative Procedure Act requires this notice contain the following statement.”

Because section 120.53(5) designates the giving of this notice of intended decision as beginning the brief period in which affected parties must invoke APA processes or be held to have waived them, by definition no other period so qualifies. Because demands made in that period are significant only because they were made in that period, the integrity of the period must be respected if significant demands are to be reliably distinguished from earlier or later demands which are insignificant though of like tenor.

By definition, therefore, all pre-January 21 dealings between the Department, Ajax, Dyson, and the other bidders were free-form only, “the necessary or convenient procedures, unknown to the APA, by which an agency transacts its day-to-day business.” Capeletti, supra, 362 So.2d at 348. In the specific terms of this case this means that the statutory clear point of entry, the time when APA processes must have been invoked if at all, did not occur with the opening of bids, nor with the appearance to the Department or to Ajax of some irregularity in Dyson’s bid, nor with Ajax’s telegram or letter of protest to the Department concerning that bid, nor with any other agency utterance, written or oral, on the subject of that bid. All that, while no doubt of great significance in the agency’s formulation of its intended decision announced January 21,1982, was of no significance whatever for purposes of invoking APA processes. Had no clear point of entry been provided by statute or by rule, we no doubt would properly require the Department to honor Ajax’s protest and invoking of APA processes, however and whenever made. We did so in Capeletti, United States Service Industries, Bio-Medical Applications, and other cases. But section 120.53(5), by providing a clear point of entry beginning upon the agency’s notice of its intended decision on January 21, 1982, reduced all antecedent claims, demands, protests, explanations, and other communications of every sort to the level of insignificance we described in Graham Contraet-ing, Inc. v. Department of General Services, 363 So.2d 810, 814-15 (Fla. 1st DCA 1978), cert., den., 373 So.2d 457 (Fla.1979):

[W]e have only a batch of correspondence by which Graham contends and the Department denies that there are disputed factual issues. These free-form proceedings may end the controversy if they are accepted as ending the controversy, but not if a substantially affected party timely invokes Section 120.57(1) or (2) remedies.

By the terms of section 120 53(5), Ajax’s telegram of January 14 and its letter of January 19 had no more APA-significance than the “batch of correspondence” between Graham and the Department of General Services in the cited case.

I know of no reason why we should not respect the legislature’s specification of this clear point of entry for filing protests and invoking APA processes on contract awards disputes. We have repeatedly called for agencies to exercise their “power to regulate the time and manner in which competitor applicants must appear and request a hearing on each other’s applications.” Bio-Medical Applications, supra, 374 So.2d at 89. We have recognized that particularly in contract awards disputes there are critical time periods and “competing interests [that] must be balanced.” United States Service Industries, supra, 385 So.2d at 1148:

[W]hile a party substantially affected by agency action is entitled to review of that action, so, too, are the citizens of the state entitled to continuity and prevention of undue delay in government contract work ....

The legislature has undoubted power to specify minimum standards for the needed clear point of entry, so vital for orderliness, predictability, “continuity and prevention of undue delay in government contract work.” The Supreme Court, even while professing that other arrangements might have been “more logically provided” by the legislature, respected a statute such as we are concerned with here, rebuffed an applicant’s contention that “it should be permitted to request a hearing after learning that there are disputed issues of fact,” and gave effect to the statutory designation of another event as marking the clear point of entry. Peoples Bank of Indian River County v. State Department of Banking and Finance, 395 So.2d 521, 523 (Fla.1981):

The statutory language gives plain notice that an applicant or any party wishing to challenge the application must either request a hearing within twenty-one days or waive any right to a hearing.

Blurring the statutory clear point of entry is the consequence of treating Ajax’s January 14 telegram and its January 19 letter as constituting, respectively, “a notice of protest in writing within 72 hours . . . after receipt of the notice of the agency decision or intended decision and ... a formal written protest within 10 days after the date he filed the notice of protest.” Section 120.53(5)(b). Subsection (c) of the statute, which as written had clear meaning, now becomes problematic:

Upon receipt of a notice of protest which has been timely filed, the agency shall stop the . . . contract award process until the subject of the protest is resolved by final agency action ....

I assume the Court does not intend that the Department “stop the . . . contract award process” immediately upon the filing of a pre-decision protest of bid such as Ajax’s telegram of January 14; if such telegrams are held to stop the contract award process when filed, no “agency decision or intended decision” could have been announced on January 21, or for many days afterward. In that event the clear point of entry specified by the statute would never occur. Presumably the Court intends instead that the agency proceed to announce its “decision or intended decision,” and then subject to APA processes every timely protest filed thereafter and every antecedent protest of bid that is considered worthy of standing over to satisfy the statute.

In this qualifying of certain free-form bid protests as significant action satisfying section 120.53(5), the Court opens a door that will be hard to shut. A cautious agency will wonder what kinds of antecedent free-form demands or protests by parties should be regarded as engaging APA processes at the moment of the agency’s notice of intended decision. Since the only distinguishing features of protests satisfying the statute have now been eliminated — protests before the announced decision are as good as protests within 72 hours afterwards, and protests addressed to a bid are as good as protests addressed to the announced decision — contracting agencies have good cause for concern about identifying correctly the kinds of free-form protests that qualify for standing over. The Court describes Ajax’s letter of January 19 as a “formal” letter of protest. It was indeed sent by Ajax’s lawyer to the Department by certified mail, return receipt requested. Are only “formal” free-form protests qualified to stand over, and if so what formalities must be observed?

I apprehend that the Court has overlooked or has underestimated the one sure result of blurring the statutory clear point of entry: contracting agencies will have to make harder and more slippery decisions in the contract awards process, and we shall have more appeals both when the agency recognizes an antecedent protest and when it does not. This does not bode well for “continuity and prevention of undue delay in government contract work.” United States Service Industries, supra. It would be well for agencies to attempt to avoid the effect of this decision in the manner the Court has suggested, by adding to their notices of intended decision the additional warning suggested in the last paragraph of Judge McCord’s opinion. Agencies would also be well advised to write that language in their rules, lest the additional letter warning be vulnerable to attack as illicit rulemaking.

But since I think the statute already hinges the clear point of entry for effective protests on the agency’s notice of its intended decision, I would affirm the Department’s order.

      . It should be noted that if there are material issues of fact, a proceeding under Section 120.-57(1) is required.

      . As noted in the text, the Department satisfied the statute by “providing] notice of its decision or intended decision concerning [the] contract award” through notice “by certified United States mail, return receipt requested.” Section 120.53(5) provides an alternative method of giving that notice of intended decision, which is described as “posting the bid tabulation at the location where the bids were opened.” Obviously this posting must go beyond merely listing the bids and bidders and must in fact announce an intended decision, accompanied by the specified warning statement. We need not consider whether such a posting constitutionally supplies a clear point of entry for protests that must then be lodged within 72 hours, for the Department commendably selected the more generous method of giving notice. But this alternative posting method of giving notice, together with the reference in section 120.53(5)(b) to the filing of “a notice of protect in writing within 72 hours after the posting of the bid tabulation,” may cause the unwary to suppose that the APA-significant protest may or must be filed within 72 hours after the bids are opened and listed, before the agency gives notice of its decision or intended decision. That is not a correct reading of section 120.53(5). While the Department’s nonrule bid manual called for the lodging of bid protests within 72 hours after bid opening, we need not speculate in this case on the effect of a bidder complying with that “protest” requirement but not the requirements of the statute. The bids were opened on December 22, 1981. Ajax, having not timely satisfied the manual’s purported 72-hour requirement with its telegram and letter of January 14 and 19, 1982, cannot rightly claim to have satisfied the manual in the belief it was satisfying the Department’s particular version of section 120.-53(5).


author: FERGUSON, Judge.

text:
    Milton F. STEINHARDT and Gladys Goldman, Appellants, v. EASTERN SHORES WHITE HOUSE ASSOCIATION, INC., Appellee.
    No. 81-922.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied May 28, 1982.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellants.
    Michael L. Hyman and Andrew D. Ka-plan, Miami, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The single issue in this appeal challenges an award of attorney’s fees pursuant to Section 57.105, Florida Statutes (1979).

After preparation for protracted litigation, the parties entered into a tentative settlement agreement of several claims. The terms of the settlement were discussed and agreed upon at a conference held in court. In accordance with the agreement, counsel for appellee was to, and did, prepare voluminous settlement documents. Appellants refused to complete the agreement. The trial judge refused to enforce the settlement agreement because she felt she could not do so completely. After a hearing, appellants were ordered to reimburse appellee “pursuant to Chapter 57,” for costs and fees incurred in the preparation of the settlement documents. The case was rescheduled for trial.

The fundamental rule in Florida is that attorney’s fees are in derogation of the common law and will be granted only pursuant to contract or statute. Any statute allowing an award of fees will be strictly construed. Roberts v. Carter, 350 So.2d 78 (Fla.1977); Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34 (Fla.1975); Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3d DCA 1981).

The statute in question is concise. It empowers the court to:

. . . award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of justiciable issue of either law or fact raised by the losing party.

In order that there be a prevailing party and a losing party, there must necessarily be a disposition of the case or controversy as by judgment or order. There can be no finding that there is a complete absence of a justiciable issue of either law or fact unless the merits of the controversy have been passed upon on the pleadings or proof, or both; there is no such finding in the record — express or implicit.

The purpose of Section 57.105 is to discourage baseless claims, stonewall defenses and sham appeals in civil litigation by placing a price tag through an attorney’s fee award on the losing party. Sachs v. Hoglund, 397 So.2d 447 (Fla. 3d DCA 1981). Construing the statute narrowly, as we must, an award of attorney’s fees before the case is concluded and only because a party has frustrated a settlement agreement cannot be sustained.

Reversed.


text:
    Sylvia JOSS, Appellant, v. Dave ALPER and Mary E. Alper, his wife, Appellees.
    No. 81-1793.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied May 28, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Sadow, Lynne & Gonzalez, North Miami, for appellant.
    Kathleen Z. McCarthy, Palm Beach, for appellees.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

This appeal questions a summary judgment in a slip and fall accident by a business invitee on premises owned and maintained by the appellee. It is a question for the jury as to the negligence, if any, of the respective parties. See: Metropolitan Dade County v. Yelvington, 392 So.2d 911 (Fla. 3d DCA 1980); Heath v. First Baptist Church, 341 So.2d 265 (Fla. 2d DCA 1977).

Therefore, the summary judgment here under review be and the same is hereby reversed, and the cause is remanded to the trial court for further proceedings.

Reversed and remanded, with directions.


author: SCHWARTZ, Judge.

text:
    Harry A. AHLMAN, Guardian, Appellant, v. Alice F. WOLF, Appellee.
    No. 81-1072.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Webster & Moorefield, Miami, for appellant.
    Paul, Landy, Beiley & Metsch and Robert M. Sondak, Miami, for appellee.
    Before SCHWARTZ and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Upon the ward’s petition for voluntary guardianship filed under Sec. 744.341, Fla. Stat. (1979), the appellant Ahlman was appointed guardian of Mary C. Hand, who was 95 years of age but was found to be competent at that time. Mrs. Hand’s niece, Alice Wolf, then filed a petition to remove Ahlman as guardian. Before it was decided, Mrs. Hand suffered a severe stroke and indisputably became incompetent. The trial judge thereupon held that the voluntary guardianship had terminated and established an involuntary guardianship of Mrs. Hand pursuant to Sec. 744.331, Fla.Stat. (1979). Since Mrs. Wolf disclaimed her statutory right to preference; the court, at her request, appointed a bank and a local attorney as the guardians of Mrs. Hand’s property and person, respectively. Ahlman appeals from these rulings but we find no merit in his assertions.

It is first of all clear that the voluntary guardianship was properly deemed to have come to an end when Mrs. Hand became incompetent. The entire basis of such a proceeding, as created by Sec. 744.341, is the capacity of the ward, who is therefore statutorily required to be “mentally competent,” voluntarily to petition for its institution, to designate the guardian, and it necessarily follows, to secure the discontinuance of the guardianship at his request. Such a concept is completely inconsistent with incompetence, which negates any such ability to act. Thus, a voluntary guardianship of an incompetent person is simply a legal impossibility. For this reason, we reject Ahlman’s contention that he should not have been replaced in the absence of a finding of any of the reasons for removing a guardian specified in Sec. 744.474, Fla. Stat. (1979). His position is based on an entirely false premise. Ahlman was not “removed” as Mrs. Hand’s voluntary guardian; instead, the voluntary guardianship terminated by operation of law when its indispensable, indeed jurisdictional, prerequisite, Mrs. Hand’s competence, ceased to exist.

Nor did the trial court err in declining to appoint the appellant guardian of Mrs. Hand’s person or property. Under Sec. 744.312, Fla.Stat. (1979), Mrs. Hand’s apparent wishes to that effect expressed in her petition for voluntary guardianship are entitled to consideration, Sec. 744.312(3)(a), but are far from controlling. On this record, we find no abuse of discretion in the appointment of guardians made below. Comerford v. Cherry, 100 So.2d 385 (Fla.1958); In re Guardianship of Quindt, 396 So.2d 1217 (Fla. 3d DCA 1981); In re Guardianship of Davidson, 259 So.2d 762 (Fla. 1st DCA 1972); see, In re Castro, 344 So.2d 270 (Fla. 4th DCA 1977), cert. denied, 355 So.2d 513 (Fla.1978). Ahlman’s other claims present no error and call for no discussion.

Affirmed.

      . 744.341 Voluntary guardianship.—
      (1) Without adjudication of incompetency, the court shall appoint a guardian of the estate of a resident or nonresident person who, though mentally competent, is incapable of the care, custody, and management of his estate by reason of age or physical infirmity and who has voluntarily petitioned for the appointment. The petition shall be accompanied by a certificate of a licensed physician that he has examined the petitioner and that the petitioner is competent to understand the nature of the guardianship and his delegation of authority. Notice of hearing on any petition for appointment and for authority to act shall not be required, except that notice shall be given to the ward and to any person to whom the ward requests that notice be given. Such request may be made in the petition for appointment of guardian or in a subsequent written request for notice signed by the ward.
      (2) Any guardian appointed under this section shall have the same duties and responsibilities as are provided by law as to guardians of property generally.

      . 744.474 Reasons for removal of guardian.—
      A guardian may be removed for any of the following reasons, and the removal shall be in addition to any other penalties prescribed by law. ...

      . 744.312 Considerations in appointment of guardian.—
      (1) The court may appoint any person who is qualified to act as guardian, whether related to the ward or not.
      (2) The court shall give consideration to the appointment of:
      (a) One of the next of kin of the incompetent who is a fit and proper person and qualified to act.
      (b) Any person designated as guardian in any will in which the incompetent is a beneficiary.
      (3) The court shall also:
      (a) Consider the wishes expressed by the incompetent as to who shall be appointed guardian, and
      (b) Give weight to the appointment of an individual, or corporation as described in s. 744.102(11), nominated by the incompetent prior to the filing of the petition for a finding of incompetency....