author: BERANEK, Judge.

text:
    Robert J. DAILEY, Appellant, v. MULTICON DEVELOPMENT, INC., Appellee.
    No. 81-1718.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.

      Jon H. Gutmacher, Fort Lauderdale, for appellant.
    Michael J. Kennedy of Peterson & Fogarty, P. A., West Palm Beach, for appellee.
   BERANEK, Judge.

Appellant/owner commenced action against appellee/developer for breach of warranty and negligence in the construction of appellant’s condominium apartment. After purchasing his apartment, appellant suffered severe water leakage which, he contended, was entering the apartment through a defective exterior wall and which damaged his furniture and rugs. He sought damages for repair of the wall, diminution in value of the apartment, consequential damages while repairs were being effected, as well as damages for his ruined rugs and furniture. In its answer, appellee generally denied all the allegations and set forth five affirmative defenses alleging contributory negligence, failure to mitigate damages, and three defenses of waiver or estoppel.

Immediately prior to the jury trial, and without any notice to appellant, appellee made an oral motion in limine to exclude any evidence by appellant on the issue of costs of repair of the defect in the wall. Appellee based its motion on the grounds that only the condominium association could claim damages for defects in the wall. This argument is based on the declaration of condominium which apparently provided that the condominium association was responsible for repairing the wall. Therefore, appellee argued, appellant was not a proper party to recover the cost of repair. The trial court granted appellee’s motion on these grounds even though it does not appear that the condominium documents were ever properly submitted for the court’s consideration. As repair of the wall constituted the largest item of damage in the suit, appellant’s measure of recovery was dramatically reduced. At the conclusion of the trial, the jury found appellee 75 percent negligent and assessed total damages at $8,000.

On appeal, appellant asserts that the trial court erred in granting the motion in limine. We agree and reverse. Appellant initially complains of lack of notice. The purpose of a motion in limine is generally to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial. Adkins v. Seaboard Coast Line Railroad Company, 351 So.2d 1088 (Fla. 2d DCA 1977). Notice is not absolutely required where the oral motion is akin to an evidentiary objection at trial. The problem here is that the motion in limine was used for more than its purpose of merely excluding irrelevant or improper prejudicial evidence. Appellee, by way of its motion in limine, attempted to summarily dismiss a portion of appellant’s case. The trial court was asked to rule that as a matter of law appellee was not liable to appellant for damages to the wall. Ap-pellee’s action is comparable to a motion for summary judgment but without the notice provisions and other requirements of Florida Rule of Civil Procedure 1.510. It may very well be that appellant cannot maintain this action for damages to the wall, but due process dictates that appellant be given notice and an opportunity to properly respond. We further note the absence of the condominium documents from evidence which also militates for a new trial on all issues.

REVERSED AND REMANDED FOR NEW TRIAL.

DOWNEY and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William T. IRWIN and Kathleen N. Irwin, Petitioners, v. The Honorable Paul M. MARKO, III, Judge of the Circuit Court of the Seventeenth Judicial Circuit, Respondent.
    No. 82-756.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 1982.
    Klein & Bennett, Sarasota, for petitioners.
    Jim Smith, Atty. Gen. and Kent A. Zaiser, Asst. Atty. Gen., Tallahassee, for respondent.
    Edna L. Caruso, West Palm Beach, for Walden & Walden, Dania, and S. Robert Zimmerman, Pompano Beach, as amicus curiae.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

This is an original petition for a writ of prohibition filed by the petitioners, William T. and Kathleen N. Irwin [the respective parties in a marriage dissolution action since voluntarily dismissed] which seeks to prohibit the respondent trial judge, Paul M. Marko, III, from entertaining any further jurisdiction in the cause, wherein a motion is presently pending to set attorney’s fees for the wife Kathleen N. Irwin’s former counsel. We have previously held that the voluntary dismissal of this cause did not deprive the trial court of jurisdiction to entertain the motion to set attorney’s fees and, on that basis, directed the trial court to entertain the said motion. Irwin v. Marko, 408 So.2d 677 (Fla. 4th DCA 1981).

It is now urged by the petitioners that the respondent Marko is disqualified by reason of bias and prejudice from entertaining any further jurisdiction herein based, in part, on certain comments made by the respondent Marko on the record in this action. We have previously issued a rule nisi in this cause, the respondent Marko has filed a response, and the wife’s former counsel, as amieus curiae, has also filed a response. Upon consideration of the petition, responses and supporting record, we conclude that the petition for writ of prohibition should be granted and direct that the respondent Marko recuse himself from exercising any further jurisdiction in this cause.

It is clear that the respondent Marko has made certain comments on the record in this cause indicating that he intends to grant the subject motion for attorney’s fees and to award an amount in the six figures; these comments were made prior to any hearing below on the said motion. As such, we think the respondent judge has created the appearance of having prejudged the attorney’s fee issue in advance of hearing it and, accordingly, is required by our law to recuse himself. See e.g., State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977), and authorities collected. Indeed, this appearance of impropriety is compounded by the fact that the respondent judge has declined to rule in any way on the motion to disqualify himself filed by the petitioners in this cause. A writ of prohibition, therefore, lies to restrain the respondent from further exercising jurisdiction in this cause. Dickenson v. Parks, 104 Fla. 577, 140 So. 459 (1932); Brown v. Rowe, 96 Fla. 289, 118 So. 9 (1928); State ex rel. Arnold v. Revels, 113 So.2d 218 (Fla. 1st DCA 1959).

We grant the petition for writ of prohibition, but assume it will be unnecessary to issue the formal writ. We are confident that the respondent Marko will, upon receipt of this opinion, recuse himself from this cause and the cause, thereafter, will be reassigned to a new trial judge according to the established administrative procedures utilized in the Circuit Court for the Seventeenth Judicial Circuit of Florida.

It is so ordered.


author: COWART, Judge.

text:
    FLORIDA DEPARTMENT OF REVENUE, Appellant, v. Frank A. FORD, etc., et al., Appellees/Cross-Appellants, and John W. Turner, as Property Appraiser of Volusia County Florida, etc., et al., Appellees.
    No. 81-147.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.

      Jim Smith, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellant.
    Harlan Tuck of Giles, Hedrick & Robinson, Orlando, for appellees/cross-appellants.
    Edwin P. B. Sanders of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellees/cross-appellants Rudman Resources, Inc. and R. J. Fuller.
    William M. Barr of Raymond, Wilson, Conway, Barr, Burrows & Jester, Daytona Beach, for appellees.
   COWART, Judge.

This case involves the constitutionality of section 193.481, Florida Statutes (1982), which imposes ad valorem taxes on several subsurface mineral rights, and problems relating to the uniform assessment and valuation of such rights within a multi-county taxing district.

Appellees/cross-appellants all own severed subsurface mineral rights to land in Volusia County. These rights were valued and assessed separately from the surface rights for ad valorem taxation purposes. This appeal is from a consolidation of thirteen actions in which appellees/cross-appel-lants disputed the proper assessment of ad valorem taxes against those rights and the valuation of the rights.

The Volusia County property appraiser separately valued and assessed the severed subsurface mineral rights under the authority of section 193.481, Florida Statutes (1979). The relevant portions of section 193.481, Florida Statutes (1979) (formerly section 193.221, Florida Statutes (1961)) are as follows:

(1) Whenever the mineral, oil, gas, and other subsurface rights in or to real property in this state shall have been sold or otherwise transferred by the owner of such real property, or retained or acquired through reservation or otherwise, such subsurface rights shall be taken and treated as an interest in real property subject to taxation separate and apart from the fee or ownership of the fee or other interest in the fee. Such mineral, oil, gas, and other subsurface rights, when separated from the fee or other interest in the fee, shall be subject to separate taxation. Such taxation shall be against such subsurface interest and not against the owner or owners thereof or against separate interests or rights in or to such subsurface rights.
(2) The property appraiser shall, upon request of the owner of real property who also owns mineral, oil, gas, or other subsurface mineral rights to the same property, separately assess the subsurface mineral right and the remainder of the real estate as separate items on the tax roll.
(3) Such subsurface rights shall be assessed on the basis of a just valuation, as required by s. 4, Art. VII of the State Constitution, which valuation, when combined with the value of the remaining surface and undisposed of subsurface interests, shall not exceed the full just value of the fee title of the lands involved, including such subsurface rights.
(4) Statutes and regulations, not in conflict with the provisions herein, relating to the assessment and collection of ad valorem taxes on real property, shall apply to the separate assessment and taxation of such subsurface rights, insofar as they may be applied.

Prior to 1957 in Florida subsurface mineral rights separately owned from the surface land were not separately assessed for ad valorem tax purposes. Chapter 57-150, Laws of Florida (Section 193.221, Florida Statutes (1961)), provided in substance (as does present section 193.481) that such severed subsurface mineral rights “shall be taken and treated as real property and shall be subject to taxation separate from the fee.” However, under the original act the duty of the tax assessor to separately assess severed subsurface mineral rights was clearly conditional. The owner of those rights had a duty to return them for taxation; however, if the owner failed to do so, the tax assessor could separately assess the rights only when a written request to do so had been filed by the owner of some record interest in the property. When that statute was assailed, the Florida Supreme Court, in Cassady v. Consolidated Naval Stores Company, 119 So.2d 35 (Fla.1960), struck it down as unconstitutional, holding that “the effect of the Statute is to authorize the tax assessor to do what this court has said that he cannot do — that is, systematically and intentionally omit from the tax rolls property of the same classification as plaintiff’s.” The court held that the statute did not relate merely to the procedure or remedy for the collection of taxes but delegated assessment (the ascertainment and listing of the property to be taxed and its ownership), a sovereign legislative power that cannot be delegated, to the discretion or whim of the subsurface owner or the surface owner of the particular tract of land. Because of that conclusion, the court expressly did not consider the issue that the statute lacked constitutional requirements of uniformity and equality, but did direct attention to Federal Land Bank of Houston v. Texas, 314 S.W.2d 621 (Tex.Civ.App. 1958).

In 1963 the legislature amended section 193.221, Florida Statutes, by deleting the provision that the owner of the subsurface rights should return them for taxation, but repeated the provision that such rights, when separated from the fee, should be subject to separate taxation only “when returned for taxation by the owner of the fee,_or the owner or claimant of such subsurface rights_” When the validity of the amended statute again came before the Florida Supreme Court, in Dickinson v. Davis, 224 So.2d 262 (Fla.1969), in a four to three decision the majority upheld the amended statute. The dissent agreed with the conclusion of the trial court that the statute still did not mandate the tax assessor to assess and place on the tax rolls all mineral rights, or even all severed mineral rights, but required the assessor to do so only when both such rights had been severed and “when returned for taxation” and that the statute still vested in the specified parties the right to control if and when the severed subsurface rights in a particular tract of land was to be assessed for ad valorem taxes and still, as in Cassady, unconstitutionally delegated the taxing authority. The majority in Dickinson held that the initial sentence in the statute, providing that severed subsurface mineral rights were to be taken and treated as real property subject to taxation separate from the surface fee, was an independent and unqualified statement of the law and that it brought into play the provisions of section 193.021, Florida Statutes, relating to the method of assessment and section 193.11, Florida Statutes, requiring the county tax assessor to ascertain by diligent inquiry the names of all taxable persons and all taxable real estate. The majority also relied heavily on section 193.12, Florida Statutes, requiring every person owning or controlling property that was subject to taxation to return the property under oath to the county tax assessor. Thus, the supreme court held, in effect, that the tax assessor’s statutory duty to assess (§ 193.11, Fla.Stat. (1967)) and the statutory duty of both the surface arid subsurface owners to return the mineral rights for taxation (§ 193.12, Fla.Stat. (1967)) overcame the infirmity in the statute that would have resulted from requiring a separate assessment of the mineral rights only when the subsurface or surface owners acted to cause such separate assessment, which Cassady had held constituted an unconstitutional delegation of the legislative authority to‘ tax.

Chapter 69-60, section 1, Laws of Florida, deleted from section 193.221, Florida Statutes (1963), the language that made return of the rights by the surface or subsurface owners or those claiming through them a condition precedent to the assessor’s duty to separately assess severed subsurface mineral rights.

These amendments and interpretations trace the history of the original chapter 57-150, Acts of 1957, to the present form of the statute as it is involved in this litigation.

First, the appellee/cross-appellant taxpayers challenge the validity of the assessment of their severed subsurface mineral rights on the ground that section 193.481, Florida Statutes (1981), is facially void for vagueness. Subsection (4) directs that the use of statutes and regulations relating to the assessment of other real property shall apply to the separate assessment of such subsurface rights only “insofar as they may be applied.’’ The taxpayers argue that this delegation to the county property appraiser of arbitrary discretion to determine which provisions (factors) of the statute (§ 193.-011, Fla.Stat., providing factors that must be considered in obtaining constitutional just valuation) to apply in the assessment of subsurface rights fails to provide sufficient standards for their assessment and results in an unconstitutional delegation of legislative authority.

Section 193.011, Florida Statutes (1982), sets forth eight factors and directs property appraisers to take them into consideration in arriving at just valuation as required under article VII, section 4 of the state constitution. All of the factors listed do not always apply in all valuations of all property for tax purposes. The phrase “insofar as they may be applied” contained in section 4 of section 193.481, Florida Statutes, is merely a recognition of that fact and of the unique difficulty involved in the valuation of subsurface mineral rights, the ownership of which has been severed from the ownership of the surface and other rights in the land but which have not been physically severed, or extracted or withdrawn from the soil or water, so that their quantity and quality can be more readily known and valued, as in the levying of an excise tax on the severance of minerals under sections 211.31 and 211.3106, Florida Statutes (1982). The usual exercise of discretion by the property appraiser in the application of the different factors set forth in section 193.011, Florida Statutes (1982), as they may reasonably apply differently to different classes and types of property to be valued and the recognition that mineral rights in place are different from other property does not create facial vagueness rendering this statute unconstitutional on that ground. The practical problems inherent in the valuation of such rights will be discussed below.

Appellant taxpayers assert that, as Cas-sady recognizes, a taxing statute that permits within one taxing unit some property to be taxed while permitting other property of the same classification to be systematically and intentionally omitted from taxation or taxed only at the discretion of the tax assessor (property appraiser) or any other individual or group is unconstitutional as unlawfully delegating the sovereign power to tax and as denying the equal protection of law. Appellant taxpayers further point out that Dickinson upheld the successor statute only by holding that it did not result in unconstitutional delegation and inequality because both the tax assessor and the property surface and subsurface owners had statutory duties to cause the assessment of all such severed mineral rights. Finally, appellant taxpayers argue that the saving provisions relied on in Dickinson do not apply in this case because (1) the duty of owners of real property to file returns was eliminated by chapter 70-243, Laws of Florida, now section 193.052(2), Florida Statutes (1982), and (2) section 193.-11(1), Florida Statutes (1967), requiring the tax assessor to “ascertain by diligent inquiry the names of all taxable persons in his county — and all taxable real estate therein —” was also eliminated by chapter 70-243, Laws of Florida. However, section 193.11(1) was replaced by present sections 193.085 and 193.114, Florida Statutes (1981), which provide that “the property appraiser shall insure that all real property within his county is listed and valued on the real property assessment roll.” Chapter 70-243, Laws of Florida, also placed duties on the Department of Revenue to promulgate regulations and to provide maps and forms necessary to insure that all real estate within the state is listed and justly valued on the real property assessment rolls of all the counties of the state. Even so, the taxpayers contend, as a matter of fact, that the Department of Revenue has not promulgated such regulations and the property appraisers of the respective counties comprising the taxing district of the St. Johns Water Management District have regularly and generally, systematically and intentionally, failed and neglected to take the actions necessary to “insure” that all severed subsurface mineral rights are assessed and are justly valued as mandated by article 7, section 4 of the Constitution of the State of Florida.

After a careful consideration of the statute, its history and purpose and the objections and arguments of the appellant taxpayers, we agree with the conclusion of the trial judge below that section 193.481, Florida Statutes, as presently written is not necessarily unconstitutional on its face and is capable of being applied constitutionally, provided it is properly implemented as necessary to achieve uniformity and equality in the assessment and just valuation of subsurface mineral rights. However, if diligent and substantial effort is not expended by the Department of Revenue to promulgate regulations and to take other actions to insure uniformity among the various counties in such assessment and valuation it will not result.

Basically two implementation problems are involved: (1) uniformity and equality in assessment and (2) just valuation.

The uniformity problem in placing all severed subsurface mineral rights on the tax rolls was basically the problem in Cassa-dy and Dickinson and arose in part from the wording of the statute. However, this assessment problem, as well as the valuation problem, also arises in part from an inherent difference between surface ownership of land and ownership of mineral rights beneath the surface of the land. If both water and land are considered “surface,” then all land has surface. All land surface can be located and visually observed and different parcels of land compared and, as a practical matter, surface rights are owned, traded and sold frequently enough to reflect market preferences and to establish comparable market prices.

On the other hand, all land does not have minerals beneath the surface and their existence or not under a particular parcel of land cannot be easily determined. Even when minerals are known to exist beneath a certain parcel their quantity, quality and value cannot be easily determined. Peculiar factors other than the value of the mineral rights are often involved in setting the consideration for a conveyance of the severed mineral rights. Further, the statute relates only to mineral rights, the ownership of which has been severed from the ownership of surface rights. Although the ownership of some mineral rights is severed by separate instruments or documents executed for that purpose only, most such rights are severed by being reserved by an owner-grantor in a deed conveying the surface rights away. These reservations are sprinkled at random in deeds in the chains of title to real property and do not stand out in a title search, as do separate conveyances of interests in land which appear to remain in the grantees in such conveyances unless those grantees, their heirs, devisees or assigns have also conveyed them on. Such mineral reservations are common in Murphy Act tax deeds, which in Florida have conveyed millions of acres. To locate all severed mineral rights for the purpose of putting them on the assessment roll requires a careful title search of the entire chain of title to all land. Such an identification of these severed mineral rights is a great burden and if properly done requires great labor and expense. However, it was a legislative prerogative to require that these real property interests bear their fair share of the ad valorem tax burden and to require a separate assessment and valuation of such property rights so as to fairly apportion the tax on the whole between the surface and subsurface owners.

The evidence before the trial court indicates that, while the taxing officers were aware of the statute and its mandatory requirements, some counties separately assess mineral rights when the surface owner insists, most counties simply do not tax such interests and at least one county separately assessed no severed mineral rights and had actually refused four requests to do so. The trial court concluded that no county had made a serious systematic effort to identify and separately assess all such mineral rights in the county and that, in the eight counties specifically examined in this litigation, no property appraiser had diligently taken action necessary to “insure that all” severed mineral rights “within his county is listed and valued on the real property assessment roll” as required by section 193.085 and. 193.114, Florida Statutes (1982). This is a very significant factual finding in view of the fact that the supreme court in Dickinson v. Davis relied on property appraisers performing this duty to assess in upholding the facial constitutionality of this statute and the fact that the statute requiring owners to return property for taxation of real property has now been repealed. The evidence specifically identified recorded documents relating to severed subsurface rights under 320,000 acres in Brevard, Orange and Osceola Counties and under 21,000 acres located in Putnam, Flagler, Lake, St. Johns, Seminole, Clay and Lafayette counties which were not assessed.

The position of the property appraisers in the eight counties specifically examined was that the identification of separately owned subsurface rights was a task for which they lacked sufficient manpower and resources, that the cost of hiring an outside abstractor to identify such rights would be prohibitive, that property appraisers generally have other more important and urgent problems and duties than the separate assessment of subsurface rights and- that the separate assessment of subsurface rights was not a matter of great public importance because it did not increase the total value of taxable property in the county.

While, as stated above, we agree with the trial court that merely because section 193.-481(4), Florida Statutes (1982), recognizes that all of the factors set forth in section 193.011, Florida Statutes (1982), cannot always be applied in valuing mineral rights and directing the application of such factors “insofar as they may be applied” does not show in and of itself that the statute cannot be constitutionally applied, nevertheless, the nature of mineral rights causes many valuation problems peculiar and different from the problems involved in the valuation of surface land area. Some of these valuation problems relate to the same matters that also cause assessment difficulties. Consider a few examples. Some land has beneath the surface mineral deposits sufficiently well known in amounts and types that such deposits can be valued and traded by persons knowledgeable about such matters; this is not always true and is relatively rare in Florida. How does one value mineral “rights” beneath a parcel of land when it is not known whether or not there are any minerals under that parcel? Does the qualified “right” to explore for and to extract minerals from beneath a parcel of land exist and have an assessable just value when there are no marketable minerals beneath the particular parcel? How are such bare rights valued when it is known that there are no marketable minerals under such parcel? When minerals are known to be under a particular parcel but there is no feasible way to determine their quantity or quality, how can they be valued? When minerals are under a city lot, the surface of which is covered by buildings and as an actual practical matter the minerals cannot be extracted from the ground, how can they be valued? These are just some of the problems. Perhaps the main valuation problem is that the monetary consideration for the conveyance of severed subsurface mineral rights is quite frequently based, not on any valuation of the market value of the minerals themselves, or even a market value of the right to explore for them, but reflects a payment for the removal of the obstruction that such severed rights constitute against the marketability of the surface rights themselves. This was recognized in Dickinson v. Davis, where it was said

It should be recognized that such property rights in this State are generally conveyed either for possible mining purposes, or to eliminate clouds upon real property titles caused by the separate ownership of same from the ownership of the other interests in the land and improvements thereon.

The truth of this statement absolutely requires a recognition of the fact that sums paid for unknown subsurface rights can and do involve two factors, viz: (1) a market estimation of the value of the possibility of the existence of subsurface deposits and of their extraction value and (2) the unique desire, and oftentimes need, of the surface owner to reunite the severed subsurface rights with his title in order to acquire a full fee simple absolute title to all interests in the parcel. Many prospective purchasers and lenders require that there be no outstanding subsurface mineral rights. The amount a surface owner or others must pay for the potential value of this second factor — its nuisance or blackmail value — depends entirely on the desires and necessities, and the compulsion and compassion, if any, of the buyer and seller and not on any intrinsic “just” or “actual” or “market” value of the subsurface mineral rights themselves. Consideration paid by a buyer because of this latter factor constitutes no part of a proper valuation of the subsurface minerals for ad valorem tax purposes. Because of this unique situation, the consideration for conveyances of severed subsurface rights is not a reliable guide to either the extraction value of minerals or even of the value of the potential or possibility of an extraction value. Conveyances from owners of severed subsurface rights to surface owners are very suspect and should be strongly presumed not to be sales between a willing purchaser and a willing seller as contemplated by section 198.011(1), Florida Statutes (1982), and general law requiring comparable sales, to be evidence of value, to be those between a willing purchaser and a willing seller, neither under any compulsion to deal with the other. The factors in section 193.011, Florida Statutes, that can be applied to the valuation of subsurface rights, such as when minerals are known and subject to a specific valuation, must be applied and applied uniformly and equally, but factors not in section 193.011, Florida Statutes, cannot be lawfully applied. This includes factors relating to the nuisance of outstanding subsurface rights and of their rejoinder value to the marketability of the fee. There is also authority for the statement that a just valuation of such severed mineral rights cannot be obtained by either a flat rate per surface area or by using a percent of the value of the surface rights. Thus it can be seen that the individual county property appraiser has a most difficult, if not impossible, problem properly valuing subsurface mineral rights and why there is absolutely no hope for uniformity in such matters from county to county without detailed guidelines of statewide application. If such statewide guidelines cannot be conceived and drafted, then it must follow that such interests are incapable of being uniformily assessed and valued and, hence, cannot be lawfully taxed.

In 1973, the Florida legislature greatly expanded the responsibilities of the Department of Revenue to see to it that Florida tax rolls were prepared in compliance with law and granted the department the authority and means to secure such compliance. Chapter 73-172, Laws of Florida. In section 195.0012, Florida Statutes, the legislature declared that it intended

to recognize and fulfill the state’s responsibility to secure a just valuation for ad valorem tax purposes of all property and to provide for a uniform assessment as between property within each county and property in each other county or taxing district.

Section 195.002 provides in part:

The Department of Revenue shall have general supervision of the assessment and valuation of property so that all property will be placed on the tax rolls and shall be valued according to its just valuation, as required by the constitution....

Section 195.027(1) directs the Department to prescribe reasonable rules and regulations for the assessment and collection of taxes and declares:

It is hereby declared to be the legislative intent that the department shall formulate such rules and regulations that property will be assessed, taxes will be collected, and the administration shall be uniform, just and otherwise in compliance with the requirements of the general law and the constitution. (Emphasis added.)

Section 195.096 subjects the assessment rolls of each county to review by the Division of Ad Valorem Tax. Section 195.097(1) provides in part:

Upon evaluation of the findings of the Division of Ad Valorem Tax, and upon the independent study of his staff, the executive director of the department shall evaluate the assessment rolls of all counties and shall issue a notice to any property appraiser who he has determined has one or more classes or other strata of property listed on the assessment rolls in a manner inconsistent with the requirements of law, or is otherwise not assessing in accordance with the law. The executive director shall specify in this notice the classes or strata of property that have been improperly assessed on the prior year’s roll, the nature of the defect or defects, and the requirements of the department to obtain approval of the current year’s assessment roll. Such notice shall be provided to the property appraiser no later than January 15. (Emphasis added.)

Subsections (2) and (3) provide for the Department’s issuance of administrative orders and its continuing supervision of tax rolls to ensure that effective remedial steps are taken. Subsection (3) provides:

During its supervision, the department may seek any judicial remedy available to it under law to force compliance with its order, and may request removal of the property appraiser by the Governor when it deems such action necessary.

Section 193.114 provides for review of all Florida assessment rolls by the Department of Revenue. Subsection (6) provides:

The executive director shall disapprove all or part of any assessment roll of any county not in full compliance with the administrative order of the executive director issued pursuant to the notice called for in s. 195.097, and shall otherwise disapprove all or any part of any roll not assessed in substantial compliance with law, as disclosed during the department’s investigation, including, but not limited to, audits by the Department of Revenue and Auditor General establishing noncompliance.

The Department of Revenue is also authorized by section 195.092 to bring actions “to enforce the performance of any duties of any officer or official performing duties with relation to the execution of the tax laws of the state... . ” Section 195.087 also charges the Department of Revenue with the authority and responsibility to review and approve or amend the budgets of Florida property appraisers.

The “Property Assessment Administration and Finance Law” enacted in 1973 as chapter 195, Florida Statutes, makes it clear that the Florida Legislature intended, through and by means of the Florida Department of Revenue, to insure that local taxing officers comply with the law so that Florida’s ad valorem taxation law is enforced, implemented and administered uniformly throughout the state. At the same time the legislature evidenced a proper regard for the broad valuation discretion vested in local property appraisers by the Florida Constitution. The Florida Department of Revenue is clearly charged with the responsibility of seeing that Florida property appraisers and other local taxation officials comply with the laws which govern the assessment, collection and administration of ad valorem taxes in Florida. The evidence in this case fully supports, and we approve, the conclusion of the trial judge that the Florida Department of Revenue has taken no serious or effective action to require Florida property appraisers to comply with the mandatory requirements of section 193.481, Florida Statutes, and that the clear mandatory requirements of that statute have been flagrantly disregarded by most of the property appraisers in the eight counties within the St. Johns River Water Management taxing district that were specifically examined in this litigation and by the Florida Department of Revenue. We further approve the finding of the trial court that, with possibly two exceptions, those property appraisers have simply not taken the statute seriously and have for the most part disregarded its requirements. Referring to those property appraisers, the trial court stated: “They did not try and fail. They simply did not try.” The trial court found, and we agree, that compliance with section 193.481 is a clear mandatory duty of Florida property appraisers, which duty those public officials have no authority or discretion whatsoever to disregard and that the broad discretion of property appraisers to value property for ad valorem tax purposes has no bearing on this problem. In view of Cassady and Dickinson and the present statutes, the only way that the assessment of severed subsurface mineral rights under section 193.481, Florida Statutes (1982), can be uniformly, lawfully and constitutionally assessed and valued is for the Department of Revenue to use its authority to cause the property appraiser to be able to, and to, use diligent effort to insure that all such mineral rights are assessed on the ad valorem tax rolls. This has not yet occurred.

When faced with the conclusion that section 193.481. had not been implemented by the property appraisers of various counties of the St. Johns River Water Management Taxing District so as to achieve constitutional equality in assessment and justice in valuation, the trial court was faced with an alternative in giving the taxpayers a remedy. Rather than cancelling the tax assessments, the trial judge's mind turned toward requiring the governmental taxing authorities to perform their duties so as to achieve, if possible, constitutional uniformity in assessment and valuation under the statute. Accordingly, the trial judge (1) expressly stated that the judicial conscience of the court was shocked at the failure of the taxing officials to apply section 193.481 so as to achieve constitutional uniformity in assessment in the multi-county taxing district, St. Johns River Water Management District, (2) noted that this problem did not involve differences of opinion as to valuation, (3) recognized that the court did not have jurisdiction over the taxing officials from the counties other than Volusia County, which other taxing officials testified at the trial but were not parties to this action, but (4) observed that the Florida Department of Revenue was a party over which the court had jurisdiction. The trial court further correctly observed that Volusia County did not exist in a world of its own for purposes of ad valorem taxation of real property because part of the taxpayers’ taxes was directly attributable to the millage that is levied by the St. Johns River Water Management District, of which Volusia County is but one county and, therefore, the actions of all property appraisers in all other counties of that multi-county taxing district were of legitimate concern to appellant taxpayers of Volusia County; thus, a court of equity should not “cast a glass eye upon plaintiff’s complaint” about the fact that their feet were being “held to the fire in Volusia County while identically situated owners of subsurface rights in other Florida counties [within the same multi-county taxing unit] are deliberately and systematically given a free ride by their property appraisers.” The trial judge found a “glaring, indisputable inequality among ad valorem tax rolls of different counties in the St. Johns River Water Management District” and concluded that the only way for section 193.481 to be applied so as to achieve constitutional uniformity in assessment and in valuation in a multi-county taxing unit was for the Department of .Revenue to perform its duties in that particular by prescribing mandatory rules, regulations and administrative orders directed toward achieving such constitutional uniformity. Accordingly, the trial court denied the taxpayers relief from their assessments and proceeded to order the executive director of the Department of Revenue “forthwith to take such action as may be appropriate and necessary to ensure that the provisions of section 193.481, Florida Statutes, are faithfully implemented and enforced at the earliest possible time and, in any event, in sufficient time to insure that Florida tax rolls for the 1981 tax year comply with the mandatory provisions of said statute.” The trial court further ordered the executive director to submit to the court written reports of actions taken to comply with the statute and the court order.

The executive director of the Department of Revenue of the State of Florida appeals, as do the taxpayers.

The experienced trial judge did a splendid job in this very complex case and all of his evidentiary and ultimate findings of fact are amply supported by the record in the case and are hereby approved, with one small exception. On Page 19 of the twenty-four page final judgment it is stated:

Plaintiffs have invoked the jurisdiction of this Court to compel the Florida Department of Revenue to perform its duties under the laws of the State of Florida.

This is incorrect. As stated in Paragraph 4 of the taxpayers’ complaint, the executive director of the Department of Revenue of the State of Florida was joined as a party defendant only in compliance with the mandatory requirements of section 194.181(5), Florida Statutes (1982). The taxpayers’ prayer for relief sought only a declaratory judgment that their assessments and valuations were illegal or that the pertinent statute was unconstitutional and an injunction against the collection of their taxes. The statement of issues set forth in the pretrial order related only to the constitutionality of section 193.481, Florida Statutes, either facially or as applied, and as to whether the contested assessments were defective and void because of improper assessment or valuation.

While under the pleadings in this case the trial court did not have the authority to require the Department of Revenue to perform its statutory duties, nevertheless, the result of the trial court’s findings is that the Department of Revenue’s failure to implement section 193.481, Florida Statutes, by appropriate regulations had resulted in the taxpayers’ subsurface rights being assessed in Volusia County when substantially all of similar property was not assessed in the other counties within the mul-ti-county taxing unit known as the St. Johns River Water Management District and that the taxpayers’ property so assessed was valued at a level higher than the general level of assessment of substantially all other similar property in other counties in the St. Johns River Water Management taxing district. Accordingly, the taxpayers were entitled to relief from the illegal assessment of their property in the past and not merely a court supervised and directed effort by the Department of Revenue to achieve constitutional uniformity in the future. Therefore, the final judgment is reversed and the cause remanded with instructions to the trial court to act on its findings and to declare that section 193.481, Florida Statutes (1982), has been unconstitutionally applied as to the assessment of the appellees’/cross-appellants’ taxpayers’ severed subsurface mineral rights in Volu-sia County, to declare said assessments illegal, null and void, to require an appropriate refund of all taxes paid by appel-lees/cross-appellants taxpayers under such illegal assessments and to enjoin the collection of taxes levied upon such illegal assessments.

REVERSED AND REMANDED with directions.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . Appellees’/Cross-appellants’ property is also within the St. Johns River Water Management District taxing district. §§ 73.069(2)(c), Fla. Stat. (1982). The district includes all of Nassau, Duval, St. Johns, Clay, Flagler, Volusia, Seminole, Brevard, and Indian River Counties and part of Baker, Alachua, Putnam, Marion, Orange, Lake, Polk, Osceola and Okeechobee Counties.

      . Chapter 69-60, section 1, Laws of Florida, deleted the words “when returned for taxation by the owner of the fee, or other interest in the fee, or the owner of claimant of such subsurface rights or interest, or any person, firm or corporation claiming by, through or under the subsurface owner or claimant” following the words “shall be subject to separate taxation.”

      . This view results from the requirement of section 193.481(3) that a reduction of the valuation of the surface land rights must be made equal to the valuation of severed mineral rights under such parcel.

      . The legislature has recognized the difficulty in valuing these severed subsurface mineral rights. Section 211.13, Florida Statutes (1981), in chapter 211, which imposes an excise tax on oil and gas as it is removed from the ground, states “The several property appraisers of this state and tax assessors of the cities therein, when assessing the value of any land for ad valorem taxes, shall not increase the value thereof by reason of the fact that there may be oil or gas under the surface of such land, inasmuch as it is impossible under known valuation methods to accurately ascertain the true value of oil and gas in place and taxation thereof is more certainly accomplished after its capture or severance from the earth or water.” (emphasis added)

      .Clouds on land titles are apparent outstanding claims which in fact or law are not genuine and real and these may be removed by a quiet title action. Unfortunately normal severed subsurface mineral rights are not mere “clouds” — they are genuine outstanding legal property rights and interests and cannot be cleared by a quiet title action. They can only be acquired by private persons by purchase or gift. They are not purchased for the purpose of making gifts of them to the surface owner.


author: ORFINGER, Chief Judge.

text:
    Major RUSSELL, as Personal Representative of the Estate of Mary Jean Bradham, Deceased, and on behalf of Norman Bradham, Jeffery Bradham and Greg Bradham, minor children of Mary Jean Bradham, deceased, Appellants, v. The STATE of Florida and Gordon Oldham, Jr., as State Attorney For the Fifth Judicial Circuit of the State of Florida, an agency of the State of Florida, Appellees.
    No. 81-531.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.

      Kenneth R. Cate and Herbert H. Hall, Jr., of Maher, Overchuck, Langa & Cate, Orlando, and Sammy Cacciatore of Nance, Caceiatore & Sisserson, Melbourne, for appellants.
    David R. Best of Maguire, Voorhis & Wells, P. A., Orlando, for appellees.
   ORFINGER, Chief Judge.

This appeal is from an order assessing attorney’s fees against appellant, plaintiff below, under section 57.105, Florida Statutes (1979). We reverse.

The underlying litigation out of which the assessment arose was an action for damages against the State of Florida and the State Attorney for the Fifth Judicial Circuit in which it was alleged, in substance, that the State was negligent in not using due care to secure the “preventive detention” of decedent’s estranged husband when he was taken into custody for assaulting decedent, when the State knew that he had beaten her on previous occasions and had threatened to kill her. The complaint further alleged that decedent’s husband was released from custody on his own recognizance because no representative of the State Attorney’s office was present at the preliminary hearing to advise the court of his past history of violence and to request “preventive detention” to avoid further violence to decedent’s person. It was alleged that the negligence of the State Attorney in failing to take steps to prevent Ernest’s release was a proximate cause of Mary’s death at Ernest’s hands a few days thereafter, and that under section 768.28, Florida Statutes (1979), (waiver of sovereign immunity), the State should respond in damages.

A final summary judgment was entered for defendants and against the plaintiff, and on appeal to this court, the judgment was affirmed. Russell v. State, 392 So.2d 91 (Fla. 5th DCA 1980). Following the issuance of our mandate, on motion by the State, the order appealed from was entered, awarding attorney’s fees to appellees in the amount of $5,000.

To. justify an award under section 57.105, the trial court must find that the action is frivolous; i.e., that the action is so devoid of merit both on the facts and the law as to be completely untenable. Whitten v. Progressive Casualty Insurance Company, 410 So.2d 501 (Fla.1982); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). A frivolous action is not merely one that is likely to be unsuccessful. Instead, like a frivolous appeal,

[1]t is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect that it can succeed. It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record . .. that its character may be determined without argument or research.

410 So.2d at 505, 384 So.2d at 175.

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 attorney’s fees awards on losing parties who engage in these activities. Whitten, at 505. On the other hand, the statute should not be so construed that it will have a chilling effect on parties who, for example, may unsuccessfully attempt to raise questions of first impression, nor should it be construed in a manner that will deter the future growth of the law by exacting a price for today’s unavailing efforts to change it. Parkway General Hospital v. Stern, 400 So.2d 166 (Fla. 3d DCA 1981).

Here, appellants attempted to convince the court in the main action that the State should respond in damages under the facts in this case because sovereign immunity (and consequently prosecutorial immunity) had been waived by section 768.28, but they were unsuccessful. So far as we can determine, this was the first attempt to assert liability against the State because of the alleged negligence of a prosecuting attorney -since sovereign immunity was waived by section 768.28. The action cannot be classified as frivolous merely because it was unsuccessful. It was a good faith effort to seek an interpretation of a new statute, and was at least arguable, so appellants should not be penalized for their unsuccessful efforts to expand the scope of the law by judicial interpretation.

The judgment appealed from is REVERSED.

SHARP and COWART, JJ., concur.

      . That the law of this state changes to meet new conditions cannot be seriously questioned. Both statutory law and judicial interpretation respond to changing times. The late Justice Glenn Terrell said it well, when speaking for the court in Chamberlain v. Chamberlain, 115 Fla. 21, 155 So. 136 (1934). He said:
      The distinguishing characteristic of the common law is that it expands or contracts to meet the changing conditions of the social and economic order of which it forms a rule of conduct. The law is dynamic; it must approach certainty, but it can never stand still. It is of all things an instrument of expanding life, and its principles must be so applied as to bring within its compass new situations that constantly develop in the progress of changing times and conditions. The common law of England and the common law of Florida were developed that way. Rules of law, unlike rules of mathematics, are replete with exceptions and are eternally the subject of change and modification, and whether or not they change depends on the facts precipitating the cases they govern. 155 So. at 137.
      Striking examples of changes by judicial interpretation are found in cases such as Hoffman v. Jones, 280 So.2d 431 (Fla.1973), where comparative negligence replaced the longstanding defense of contributory negligence, and in Har-grove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957), where the court, for the first time, imposed liability on cities for torts of police officers, recognizing the need to change the law to meet changing times, because “the law is not static [and] the great body of our laws is the product of progressive thinking which attunes traditional concepts to the needs and demands of changing times.” Id. at 133.


author:
ORFINGER, Chief Judge.
      COWART, Judge,

text:
    Linda Purvis FULK, Appellant, v. STATE of Florida, Appellee.
    No. 81-981.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.

      James B. Gibson, Public Defender, Michael S. Becker, and Leonard R. Ross, Assistant Public Defenders,. Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Chief Judge.

Appellant preserved for appeal the denial of her motion for discharge on speedy trial grounds when she entered a plea of nolo contendere to two felony charges of possession and delivery of a controlled substance.

Appellant was taken into custody on these charges on December 11, 1980. At arraignment, she appeared and entered a plea of not guilty, and her case was set for trial on June 15, 1981, one hundred and eighty six days following her arrest. No request for a continuance by appellant appears in the record, nor is there any order of court extending speedy trial. Neither did appellant demand a speedy trial. Thus, the “speedy trial” period expired on June 9, 1981, unless one of the exceptions of Florida Rule of Criminal Procedure 3.191(d)(3) (1977) makes discharge not appropriate.

On June 5,1981, appellant’s appointed public defender filed a motion to withdraw, citing conflict because of the representation by the public defender’s office of a co-defendant. This motion was not heard until June 10, at which time it was granted, and other counsel was appointed. No motion for continuance was made in conjunction with this substitution. The State concedes that there was no waiver of speedy trial by the timing of the motion of the public defender to withdraw. This is correct. There was no showing below that the motion was frivolous, filed for delay or that it was without merit. State v. J. H., 295 So.2d 698 (Fla. 1st DCA 1974). Thus, there is no showing that the failure to bring appellant to trial within the speedy trial time was attributable to the accused or her counsel, or to a co-defendant. Fla.R. Crim.P. 3.191(d)(3) (1977).

The State says that defendant was unavailable for trial, thus not entitled to be discharged. But, the State is not arguing that appellant was not prepared on June 15, 1981, the date the trial was scheduled, but on June 9, 1981, the date speedy trial time ran. The record reflects that new counsel was appointed on June 10,1981. Under the cited rule no presumption of non-availability attaches, and the State offered nothing to show that appellant was not ready for trial on the date the case was set for trial. Therefore, any inquiry into appellant’s availability for trial on June 9, 1981, the day speedy trial ran, is not pertinent.

Appellee’s second argument is that the defendant was noticed to attend a “change of plea” hearing and failed to appear, thus making appellant unavailable for trial because neither she nor her counsel attended a proceeding where there presence was required by the rules.

At arraignment, the trial court had entered a form order entitled: “Notice of Pre-Trial Conference, Motion/Docket Day, and Order Setting Case for Trial.” Nothing in this order requires the presence of either the defendant or her counsel at any proceeding other than the trial. The reference to a pre-trial conference does not require the presence of counsel before the court, and there were no motions or other issues pending which would have required appellant’s presence on motion/doeket day on June 1st.

The State argues that a notice sent by the prosecutor to the defendant requiring her to appear in court on June 1st for a “change of plea” hearing was a required proceeding, so she was thus unavailable for trial because neither she nor her attorney appeared that day. This argument sets up a straw man and then knocks it down. Nothing in the record indicates that appellant intended to change her plea. She had pleaded not guilty at arraignment, and even though there may have been plea negotiations (a point not made clear in the record before us), the State could not compel her to change her plea, or to accept a plea offer. Plea negotiations in and of themselves do not render a defendant unavailable for trial in the absence of a showing that the negotiations were entered into in bad faith for purposes of delay. Thus the fact that a defendant is engaged in plea negotiations through the time the motion for discharge is made does not alone indicate waiver, nonavailability or bad faith delay. Stuart v. State, 360 So.2d 406 (Fla. 1978).

The State relies on Harris v. State, 400 So.2d 819 (Fla. 5th DCA 1981) as standing for the proposition that a defendant’s failure to appear at a court proceeding during the running of speedy trial waived the speedy trial requirements. In Harris, the defendant failed to appear for arraignment, and was therefore deemed to be unavailable for trial. That case is inapposite because there, defendant failed to appear at a required time. Here we have only a unilateral action by the State calculated to compel appellant to accept or reject a plea offer. While the purpose is worthy, a defendant is not required to appear for that purpose unless ordered by the court, and no such order was entered here. There is no presumption that a defendant is unavailable for trial, Rule 3.191(e), and the State must make a preliminary showing of non-availability if it objects to discharge on that ground. No showing is made here.

The defendant was entitled to be discharged because she was not brought to trial within the period of time prescribed by Rule 3.191(a)(1). The final order accepting appellant’s plea, withholding adjudication and placing her on probation is set aside, and the case is remanded to the trial court with directions to discharge appellant.

REVERSED and REMANDED.

SHARP, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I agree that appellant must be discharged.

Florida Rule of Criminal Procedure 3.191 gives but 180 days after arrest for trial. Here, appellant was arrested on December 11,1980. Seventy-eight days later, on February 27, 1981, the State filed an information. Twenty-seven days later (105 days after arrest) the state attorney notified appellant to appear in court for arraignment on April 6,1981. On April 6,1981 (116 days after arrest) appellant was arraigned, defense counsel was appointed and the case was “set for trial during the monthly trial term commencing the week of June 15, 1981.” June 15, 1981, was 186 days after arrest. Therefore, the first trial date set was already beyond the rule time period. The speedy trial rule just does not contemplate this leisurely pace of prosecution. This case illustrates that the rule is not accomplishing the purpose of securing speedy trials, but has become an instrument of injustice. The public is justifiably becoming increasingly dissatisfied with the administration of a criminal justice system that is currently discharging numbers of accused, not because of any lack of merit in the criminal charge, but because of noncompliance with a procedural rule.

Results under our present speedy trial rule can be traced to a serious breach of the constitutional separation of powers doctrine. Both in the rule’s inception and in its application, each branch of our government, the legislature, executive, and judiciary, has crossed the conceptual boundaries that separate them.

In its inception, the legislature passed section 918.015(1), Florida Statutes (1982), which purported to give the accused in a criminal case a statutory right to a speedy trial, separate and apart from the constitutional speedy trial guaranteed by article I, section 16 of the Florida Constitution and amendment VI of the United States Constitution. Whatever the basis for that legislative idea, what was needed was a recognition of the fact that the necessary correlative of a defendant’s statutory right to a speedy trial is the State’s statutory duty to provide a speedy prosecution, so as to effectuate the accused’s right to a speedy trial and the public’s right to have violations of the criminal laws effectively prosecuted. The legislature should have statutorily defined this duty. Instead, by section 918.-015(2), Florida Statutes, the legislature mandated that the supreme court of Florida effectuate, by court rulé, the speedy trial rights enacted in section 918.015(1), as well as the speedy trial rights of the accused guaranteed in section 16 of article I of the Florida Constitution. This was a grave violation of the doctrine of separation of powers and of section 3, article II of the Florida Constitution. The proper role of the judiciary in implementing citizens’ rights to a speedy trial is by adjudicating those rights and the effect of the government’s violation thereof, as those rights are asserted by the defense case by case before the court, and not by any system of court procedural rules promulgating, defining or implementing those rights. Courts do not give people rights or affirmatively attempt to enforce their rights for them; courts fully perform their function when they regulate themselves so that they violate no litigant’s rights and when they provide a forum which recognizes all legal rights given litigants by organic law and prevents the denial of such rights by others. Notwithstanding these principles, the state judiciary, in emergency session, undertook this legislative direction to take legislative and executive action, see In re Florida Rules of Criminal Procedure, 245 So.2d 33 (Fla.1971), and defended the resulting rule as merely providing procedures to enforce the constitutional right to a speedy trial. State ex rel. Maines v. Baker, 254 So.2d 207 (Fla.1971).

Just as the legislature/judiciary boundaries were breached in the creation of the rule, the executive/judiciary boundaries are breached in the scope of the rule. Normally, there are four separate and progressive events that occur in bringing an accused to trial: the arrest, the filing of criminal charges, the arraignment and ultimately the trial. Properly, trial courts should exercise authority over their dockets and the progress of criminal cases by controlling, and being responsible for, time delays between the filing of criminal charges and trial; control during this time period is a judicial function. But the judiciary cannot, without itself violating the doctrine of separation of powers, control and regulate the time of arrest or the time of the filing of criminal charges; these are properly executive functions subject to legislative control. By lumping together under one time period matters that are under the control of the executive branch and matters that are under the control of the judicial branch, the rule places the responsibility for effective prosecution on everyone and no one.

Finally, by failing to place responsibility (with the concomitant ability to meet that responsibility) with any one branch, the proper application of the principles of the rule are frustrated and the end result reflects poorly on all concerned. The present rule commits the courts to act as a participant in a no-win war wherein each battle with the 180 day rule that is lost results in a serious loss of public confidence in the courts. The judiciary should return to the position of a detached neutral magistrate standing and deciding between two contending participants, applying law made by others rather than defending its own rule.

Effective prosecution of violations of the state’s criminal laws before the trial and appellate courts is the responsibility of state attorneys and of the attorney general. Prosecution delayed until the defendant is entitled to a discharge for violation of his speedy trial rights is not effective prosecution. Although state attorneys, like all attorneys, are officers of the court, the execution of criminal statutes by enforcement, including prosecution, is an executive function of government. The state attorney, when acting as prosecuting officer under article V, section 17, of the Florida Constitution and under chapter 27 of the Florida Statutes, is performing an executive function and not a judicial function. Thus, it is properly the executive’s duty to see that a defendant is accorded his statutory speedy trial rights, and the exact nature of this duty should be statutorily defined by the legislature and the consequence of non-compliance specified. If this is done the judiciary can then properly determine questions of compliance and consequences of noncompliance.

In summary, the judiciary should recognize that the accused’s right to a speedy trial is a substantive, constitutional right; that direct, administrative, implementation of such rights is not a proper purpose of procedural court rules or of judicial action; and that effectuation of constitutional and statutory speedy trial rights in criminal cases is a necessary corollary of effective criminal prosecution, which is solely an executive function. Accordingly, the courts should get out of the business of effectuating speedy trial rights in criminal cases, other than adjudicating them and the effect of their violation as it does any other constitutional right. On the other hand, if the judiciary is committed to affirmative administrative-executive action, then the trial courts should be required to do a better job by exercising strict rule control over all time delays between (1) arrest, (2) the filing of criminal charges, (3) arraignment and (4) the date of trial. If the judiciary is to be required to do this, then rules should be adopted regulating each potential point of delay to allow for the inevitable trial delays and yet safely work within the allotted 180 days, requiring, perhaps, that charges (or a “no-information”) be filed within 20 days of arrest, arraignment occur within 10 or 20 days thereafter and the first trial date be set within 30 to 60 days of arraignment and accounting be carefully made as to responsibility for all continuances and delays.

      . The 1977 rule controls this case because appellant was taken into custody prior to January 1, 1981, the date on which the current rule became effective. See Holmes v. Leffler, 411 So.2d 889 (Fla. 5th DCA 1982).

      . The current rule (3.191[e]) provides that a person is unavailable for trial if he or his counsel fails to attend a proceeding at which his presence is required. Although this precise language was not found in the prior rule, we will discuss it as descriptive of a circumstance which could have been used as a basis for a determination of unavailability under the old rule.

      .Pertinent parts of this order read:
      1. TRIAL — This case is set for trial during the monthly trial term commencing the week of June 15, 1981, at 9:00 A.M., at the Marion County Courthouse, Ocala, Florida. In the event the case does not come to trial during the above mentioned trial term, it shall automatically be set over to the next succeeding trial term.
      2. MOTION/DOCKET DAY for the above mentioned trial term shall be held on Monday two (2) weeks prior to said trial term at 10:30 A.M., or as soon thereafter as counsel may be heard following weekly arraignments. All pending motions or other issues shall be heard on Motion/Docket Day. No motion filed on or subsequent to Motion Day, the granting of which will result in a postponement, continuance or delay in the trial will be entertained or considered if such motion is predicated on any fact, circumstance, or matter of law known to Movant prior to Motion Day or of which he may have known through the exercise of reasonable diligence, including, but not limited to non-compliance with any demand for discovery unless a timely motion to compel discovery has been filed. Except for good cause, evidentiary motions MUST be heard prior to Motion Day.
      !{! * Sfc * *
      5. PRE-TRIAL CONFERENCE — Counsel for the respective parties SHALL confer in person or by telephone at least three (3) working days prior to Motion/Docket Day for the purpose of settling issues, completing discovery, discussing plea offers, etc. It shall be the duty of the Defendant or defense counsel to contact the State’s attorney handling the case for said conference.
      6. PLEA OFFERS — All negotiations concerning plea offers (plea bargaining) shall be concluded, REDUCED TO WRITING, and presented to the Court on or before Motion/Docket Day. THE COURT WILL NOT ENTERTAIN OR CONSIDER ANY PLEA OFFER MADE SUBSEQUENT TO THE ANNOUNCEMENT OF THE DOCKET ON MOTION/DOCKET DAY. By presenting to the Court a negotiated plea the Defendant stipulates that the running of Fla.R.C.P. 3.191 (Speedy Trial) is tolled until such time as the plea is accepted or rejected by the Court, including any time necessary for a pre-sentence investigation.

      . See, e.g., article IV, section 4(c) and article V, section 17, Florida Constitution, and section 16.01(4)(5) and (6), 16.08 and chapter 27, Part I, Florida Statutes (1981).

      . For some strange reason, the constitutional provision for state attorneys and public defenders is provided by sections 17 and 18 of article V of the Constitution of the State of Florida. Article V is denoted the judiciary article. For fiscal and other purposes both the legislative and executive departments of state government often see state attorneys and public defenders as being part of the judicial branch.

      .At present, the practice in the judicial circuit where this case arose appears to be for the state attorney to notify the accused of an arraignment date rather than the trial court controlling the time of this procedural event.


text:
    AL ESTES BONDING AGENCY, Appellant, v. CITRUS COUNTY, Florida and William Robert Ryan, Appellees.
    No. 81-1054.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    B. Robert Ohle, St. Petersburg, for appellant.
    Larry M. Haag, Inverness, for appellee Citrus County.
   COWART, Judge.

This case involves the statutory procedure relating to the forfeiture of an appearance bail bond in a criminal case and entry of judgment against the surety on the bond.

A person accused of committing a crime can sometimes secure his release from custody by posting an appearance or bail bond in which he and his surety bind themselves to pay a sum of money subject to the condition subsequent that if the accused appears in court as required the undertaking will be void. Surety insurers qualified by the state to transact business are authorized to act as surety on appearance bonds and other bonds in judicial proceedings. Customarily, surety insurers, by power of attorney, appoint “limited surety agents” to act for them and to execute or countersign bail bonds. In addition to authorized surety companies, individuals who are residents of the state or who own real property here can act as surety for the release of an accused on bail and deposit cash, government bonds and real and other property as security. If such an individual receives or is promised money or other thing of value for his pledge, that person is a “professional bondsman.” Both limited surety agents and professional bondsmen are called “bail bondsmen” and are regulated by the state, as are employees of bail bondsmen, called “runners.”

If the time for appearance in court is within 72 hours from the time of arrest, or if the time for appearance in court is stated on the bond, and the accused fails to appear as required, the court can declare the bail bond to be forfeited. Otherwise, the clerk of court must give the surety at least 72 hours notice, exclusive of weekends and holidays, before the time of the accused’s required appearance in order for the court to declare the bail bond forfeited for failure of the accused to appear. If the bail bond is forfeited, the court must notify the surety agent and surety company in writing within 72 hours of the forfeiture. Within 30 days of forfeiture, it is to be paid, unless within that time it is discharged by the court for a reason provided by statute. If the forfeiture is not paid or discharged within 30 days and the bond is secured other than by money and government bonds, the clerk of the circuit court is required to enter a judgment against the surety and issue execution and within 10 days furnish the surety company at its home office a certified copy of the judgment. Within 45 days after such notice of judgment, the surety or bail bondsman may file a motion to set aside the judgment, which the court may at any time grant and set aside the judgment in whole or in part for reasonable cause shown. If the judgment is not paid within 60 days the clerk must notify the Department of Insurance. Within one year after forfeiture, the court may direct a remission for reasonable cause and should do so if it determines there was no breach of the bond or if the surety apprehends and surrenders the defendant within that year, unless the delay caused by the failure of the defendant to appear has thwarted his prosecution.

In this case appellant, apparently acting as a limited surety agent for Eastern Insurance Co., a surety company, posted a bail bond to secure the appearance of an accused, William Robert Ryan, before the Circuit Court of Citrus County, Florida. Ryan failed to appear and the court declared the bond forfeited. Appellant moved to set aside the forfeiture because notice of the forfeiture was not given the surety company in writing within 72 hours after the forfeiture and appealed the denial of his motion. This court in Ryan v. State, 380 So.2d 539 (Fla. 5th DCA), review denied, 389 So.2d 1107 (FIa.1980), held that, as distinguished from the 72 hour advance notice of court appearance date, the failure of the court to give the 72 hour post-forfeiture written notice of the forfeiture to the surety agent and surety company was not a good ground for voiding the forfeiture. After the supreme court denied review in Ryan, the clerk attempted to enter judgment on the forfeiture but, instead of entering judgment against the surety, Eastern Insurance Co., the clerk mistakenly entered judgment against appellant, who was the limited surety agent of the surety company. Further, a certified copy of that judgment was not sent to the surety, Eastern Insurance Co., but to the appellant bail bondsman and to some other surety company (American Druggists Insurance Company), which latter company does not appear to have anything to do with this case. Appellant then moved to vacate and set aside the judgment on various grounds, including that the 72 hour post-forfeiture notice of the forfeiture was not given the proper surety company. The trial court denied that motion to vacate expressly on the ground that the effect of failure to give the 72 hour post-forfeiture notice in this very case was the exact point cited in Ryan v. State, and appellant brought this appeal.

Of course, the trial court is correct on the ground articulated in the order denying the motion to vacate. However, the error of the clerk in entering judgment against appellant, the limited surety agent, rather than the surety company, was not presented or argued in the prior appeal. That error of the clerk was a plain error and should be corrected. In fact, after appellant filed his motion to vacate and set aside the judgment and before the trial court entered the order which is here appealed, the clerk entered an amended judgment on the forfeiture in this case. Unfortunately, however, the clerk made a third error and entered the amended judgment against American Druggists Insurance Company (the wrong surety company to which the notice of forfeiture had been erroneously sent). During the pendency of this case, Citrus County moved this court for an order directing the clerk of the Circuit Court of Citrus County to enter a second amended judgment against the correct surety company, Eastern Insurance Co. This court has no authority to enter such an order and that motion is hereby denied.

Appellant’s counsel’s reargument of the clerk’s failure to give the surety company post-forfeiture notice (the point decided against appellant in Ryan v. State), misdirected the trial court’s attention and ruling in that direction and away from the controlling point. Although not clearly presented, paragraph 5 of appellant’s motion to vacate and set aside the judgment against appellant does make the point that the judgment entered was against appellant, the agent of the surety, Eastern Insurance Company, and not against the surety. For that reason and on that ground the motion to vacate should be, and it is hereby, granted and the judgment against appellant vacated without prejudice to the clerk of the circuit court entering a proper judgment against the proper surety company upon the bond forfeiture entered by the court for failure of Ryan to appear and for further proceedings thereon in accordance with the applicable statutes.

REVERSED.

COBB and SHARP, JJ., concur.

      . See Art. I, § 14, Fla.Const.; Fla.R.Crim.P. 3.130(a).

      . See § 627.751, Fla.Stat. (1981).

      . See § 627.752, Fla.Stat. (1981).

      . See § 648.25(4), Fla.Stat. (1981).

      . See § 903.05, Fla.Stat. (1981).

      . See §§ 903.09, 903.16, 903.17, Fla.Stat. (1981).

      . See § 648.25(5), Fla.Stat. (1981).

      . See § 648.25(3), Fla.Stat. (1981).

      . See § 648.26(1), Fla.Stat. (1981).

      . See §§ 648.25(6) and 648.26(1), Fla.Stat. (1981).

      . § 903.26(1), Fla.Stat. (1981).

      . § 903.26(2), Fla.Stat. (1981).

      . § 903.26(2), Fla.Stat. (1981).

      . See § 903.26(5), Fla.Stat. (1981).

      . § 903.27(1), Fla.Stat. (1981).

      . § 903.27(2), Fla.Stat. (1981).

      . § 903.27(1), Fla.Stat. (1981).

      . § 903.28(1), Fla.Stat. (1981).

      . Allied Fidelity Insurance Co. v. State, 415 So.2d 109 (Fla. 3d DCA 1982), holds that the post-forfeiture notice is merely “a redundant courtesy extended to the surety” and that judgment may be entered on the forfeiture despite failure to give the post-forfeiture notice.

      . This case could be called a comedy of errors but for the sobering fact that it involves $50,-000, several trial court hearings, two appeals and is not funny.

      . It should be noted that Ryan v. State is authority for the proposition that the failure to give the post-forfeiture notice of forfeiture within 72 hours does not void the forfeiture and that reasonable notice of the forfeiture serves as the inception of the running of the 30 day period for payment or discharge and for further proceedings under the statute.


author: SHARP, Judge.

text:
    Doyal VAN TEAMER, Appellant, v. STATE of Florida, Appellee.
    No. 81-1057.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.

      James B. Gibson, Public Defender, and Frederick B. Karl, Jr., Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Van Teamer appeals his conviction for burglary of a structure. He argues that a jury instruction based on section 810.07, Florida Statutes (1979) should not have been given because the information alleged he entered the structure “with the intent to commit an offense therein, to-wit: a theft,” and it failed to allege reliance on the statutory presumption. We think the instruction was proper in this case, and we affirm.

In the case at bar, the trial court gave the standard jury instruction on burglary including the provision that the State must prove beyond a reasonable doubt that at the time of entry the defendant had a fully formed conscious intent to commit the offense of theft. Because the State presented evidence of a stealthy non-consensual entry, it asked for and received, over the defendant’s objection, the standard instruction based on section 810.07 that proof of a stealthy nonconsensual entry may justify finding that the entering was with an intent to commit a crime. The remaining portions of the standard burglary instruction were also given concluding that if the evidence did not establish that the act was done with the intent to commit theft the defendant should be found not guilty.

In Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981), we held that the intent to commit a specific offense is an essential element of the crime of burglary. The information in Rozier alleged in count one the specific intent to commit theft, for which the jury found Rozier not guilty; and in count two, that he entered the dwelling “stealthily and without the consent of the owner.” We held that count two did not allege the crime of burglary because it failed to say Rozier entered the structure with an intent to commit some kind of crime.

Rozier is not controlling in this case because the information alleged the specific intent to commit a theft, and there was proof at trial that Van Teamer stole a truck tire from the burglarized premises. Two witnesses testified they saw him leave the premises with a truck tire in hand. When he saw he had been seen he dropped the tire and fled. Inside, the owner of the premises found that the chain used to bind the truck tires together had recently been cut. Unlike Krathy v. State, 406 So.2d 53 (Fla. 1st DCA 1981), there was evidence presented to substantiate the allegation that Van Team-er entered with an intent to commit theft.

In both Krathy and Waters v. State, 401 So.2d 1131 (Fla. 4th DCA 1981), the State alleged in the informations that the defendant intended to commit theft, but failed to prove it at trial. It then sought to rely on the “stealthy entry” presumption to supply the specific intent element for burglary. Those cases adopted the rule that if the State is going to rely on the stealthy entry presumption to supply the specific intent of the burglary offense, it must allege it in the information.

We decline to apply that rule to this case because the information alleged intent to commit theft and there was proof of this element of the crime at trial. Stealthy entry was also proved, however, and in this case, the giving of the “stealthy entry” jury instruction was appropriate. It operated in this context like other kinds of evidentiary presumptions which do not need to be alleged in an information in order to be given as jury instructions in a proper case. Nor do we think, in view of the other instructions given, that the jury was confused by thinking proof of stealthy entry alone was sufficient to prove the required intent to commit a theft.

Affirmed.

COBB and COWART, JJ., concur.

      . § 810.02, Fla.Stat. (1979).

      . § 810.07, Fla.Stat. (1979) provides:
      In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.

      .Fla.Std. Jury Instr. (Crim) pp. 135-136 (1981).

      . § 812.022(1), Fla.Stat. (1979) (failure to return leased property within 72 hours after lease terminates gives rise to inference of intent to commit theft).
      § 812.022(2), Fla.Stat. (1979) (proof of possession of property recently stolen unless explained, gives rise to inference of possessor knew or should have known the goods were stolen).
      § 500.151(2), Fla.Stat. (1979) (possession of a drug under subsection (1) not properly labeled to indicate that possession is pursuant to valid prescription is prima facie evidence that possession is unlawful).


author: DAUKSCH, Judge.

text:
    Robert R. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1107.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Carl H. Lida, of Law Offices of Carl H. Lida, P. A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order placing appellant on probation. The issue for us to decide is whether the cases of Miller v. State, 403 So.2d 1307 (Fla.1981); Session v. State, 353 So.2d 854 (Fla. 4th DCA 1977); Jones v. State, 345 So.2d 809 (Fla. 4th DCA 1977); Altman v. State, 335 So.2d 626 (Fla. 2d DCA 1976) and State v. Jenkins, 319 So.2d 91 (Fla. 4th DCA 1976) apply to the facts of this case. We hold that they do apply and reverse the order of the trial court denying the suppression of evidence.

After a chase, appellant was apprehended by the highway patrol and his car was impounded, inventoried and towed away. During the inventory the patrolman found some marijuana and arrested appellant for possession of the drug. The car which appellant had been driving was half-in and half-out of a ditch when it was finally stopped after the chase and, although the evidence is equivocal on this point, the car may have been presenting a traffic hazard at its resting place. Thus it can be concluded that it was necessary for the car to be impounded, inventoried and removed.

Although the cases cited above require a police officer to tell a person that his car is going to be towed away and to give the person a reasonable opportunity to provide an alternative to the impoundment, this patrolman failed to do so. Because of that failure the impoundment was improper, the inventory search illegal and the evidence inadmissible. The order denying the suppression is reversed and this cause is remanded for discharge of appellant.

REVERSED AND REMANDED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


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

text:
    Margaret H. BRATCHER, Appellant, v. Rita M. WRONKOWSKI and Charles J. Wronkowski, her husband, Appellees.
    No. 81-1292.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.

      James A. Moreland, P. A. of Moreland & Palmer, Winter Park, for appellant.
    C. Andrew Coomes, Orlando, for appel-lees.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Margaret H. Bratcher was indebted to the Wronkowskis as evidenced by a note and second mortgage. She appeals from a judgment of foreclosure and an order denying her leave to amend her answer to include a counterclaim.

As to the court’s entry of summary judgment of foreclosure, we find no error and affirm. However, we find that the court miscalculated the amount of interest due. The note provided that interest was payable at twelve percent per annum. However, upon default, the note provided:

If default be made in the payment of any of the sums or interest mentioned herein or in said mortgage, or in the performance of any of the agreements contained herein or in said mortgage, then the entire principal sum and accrued interest shall at the option of the holder hereof become at once due and collectible without notice, time being of the essence; and said principal sum and accrued interest shall both bear interest from such time until paid at the highest rate allowable under the laws of the State of Florida.

In the final judgment of foreclosure, the Wronkowskis were awarded interest from February .16, 1980 through September 10, 1981 (the date of the judgment) in the amount of $3,852.17. This amount was apparently based on calculations from Mrs. Wronkowski’s affidavit wherein she claimed interest on the principal balance at the rate of twelve percent from February 16,1980 to March 16, 1980, and at eighteen percent (the maximum legal interest) from March 16,1980 to the present. Under the terms of the note, the use of the maximum legal interest rate was proper only after Mrs. Wronkowski had exercised her option to declare the entire sum due.

It is not clear from the record when Mrs. Wronkowski exercised her option to declare the entire sum due, but it is clear that the date was not March 16,1980, when the first default occurred. We therefore reverse and remand for proper calculation of the interest due.

With regard to the trial court’s refusal to grant Mrs. Bratcher leave to amend her answer to include a counterclaim, we find no error. The counterclaim was based on breach-of-warranty regarding the heating and air conditioning unit and other appliances contained in the house which Mrs. Bratcher had purchased from the Wron-kowskis and for which the note and mortgage evidenced a part of the purchase price.

While we recognize that leave to amend is to be liberally granted, e.g., Sarasota Comm. Rev. v. Schooley, 381 So.2d 1141 (Fla. 2d DCA 1980), the refusal to grant leave here would be an abuse of discretion only if the counterclaim were compulsory and therefore barred in a subsequent action. The test of the mandatory character of a counterclaim is whether its subject matter arose from the same transaction or occurrence as the subject matter of the complaint or petition. No definitive rule exists to determine if the cause of action in a counterclaim arose from the same transaction or occurence and hence each case must be determined on its own facts. Trawick, Fla.Prac. and Proc. § 12-3 (1979).

Generally, two tests may be used to determine whether a counterclaim is compulsory. One of the tests is whether the same evidence would support the complaint and the counterclaim. If the same evidence or the parts material to both the complaint and the counterclaim will support both pleadings, then the counterclaim is compulsory. The second test is whether the doctrine of res judicata will bar the counterclaim if it is asserted subsequent to the action. Id.

The complaint in the present case sought to foreclose on the second mortgage. The counterclaim Mrs. Bratcher attempted to plead involved an alleged breach of contract or warranty regarding appliances in the home purchased from the Wronkowskis. This counterclaim does not meet either of the tests for compulsory counterclaims outlined above. First, the evidence regarding the failure to make the mortgage payments is not related in any fashion to the condition of the appliances on the breach of warranty counterclaim. Second, principles of res judicata would not bar the counterclaim if asserted in a subsequent action as the same issues are not involved in the two claims. We therefore conclude the trial judge did not abuse his discretion in refusing to permit the amendment.

AFFIRMED in part; REVERSED and REMANDED in part.

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

      . It should be noted that the counterclaim was not asserted as a defense to Mrs. Bratcher’s failure to make the mortgage payments. Thus, unlike the situation in Haag v. Phillips, 333 So.2d 507 (Fla. 2d DCA 1976), the counterclaim would not have prevented the entry of summary judgment.


text:
    L. C. GANDY and Leather Gandy, Appellant, v. E. R. OUTLAW, et al., Appellees.
    No. 81-1328.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Robert F. Evans, Jr., Orlando, for appellants.
    Donna C. Wyatt and J. Russell Thacker, of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Orlando, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

The Gandys filed suit against E. R. Outlaw and her insurance carrier seeking to recover for losses sustained when Mrs. Outlaw’s vehicle rear-ended Gandy’s vehicle. Both sides stipulated that Mrs. Outlaw lost consciousness immediately prior to the impact and that such loss of consciousness was unforeseeable. The trial court entered summary judgment in favor of Mrs. Outlaw and her insurance carrier. We affirm.

Under Baker v. Hausman, 68 So.2d 572 (Fla.1953), and its progeny, the unforeseeable loss of consciousness while driving is a complete defense to the charge of negligence and gross negligence. While acknowledging that the trial court’s entry of a final summary judgment was proper under Baker, the Gandys nevertheless assert that liability should be placed upon Mrs. Outlaw claiming that she was the “least innocent” of two innocent parties. The Gandys have requested this court to revisit the existing law and either reverse the lower tribunal’s ruling or certify the issue as one of great public importance.

We are not disposed to reverse the trial court. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Further, we do not believe the question is one of great public importance and therefore decline to certify it as requested. While we have great sympathy for the Gandys, we cannot conclude there is any reason to change a rational rule of law. If Mrs. Outlaw could not anticipate, foresee, or prevent the accident, we can urge no reason to impose liability upon her. As the supreme court observed in Bridges v. Speer, 79 So.2d 679 (Fla.1955):

It is not even simple negligence if one has a sudden attack, loses control of his car and causes an accident if he had no premonition or warning. In such event the very foundation of negligence — knowledge and hence foreseeability — is absent. (emphasis added)

AFFIRMED.

SHARP and COWART, JJ., concur.

      . Fla.R.App.P. 9.125.


text:
    ONE THOUSAND OAKS, INC., Appellant, v. DADE SAVINGS & LOAN ASSOCIATION, Appellee.
    No. 81-1418.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    R. L. Russell of van den Berg, Gay & Burke, P. A., Orlando, for appellant.
    Bruce B. Blackwell of Peed & King, P. A., Orlando, for appellee.
   COWART, Judge.

Appellant, a condominium association, brought a six count complaint against ap-pellee, the condominium developer. Upon motion the trial judge first dismissed counts IV, V and VI of the complaint with leave to amend. After amendment appellee’s motion to dismiss the same counts of the amended complaint was “granted with prejudice.” Finally, the trial court entered a “final judgment” for appellee and against appellant as to those counts from which appellant appeals.

Apparently the trial court correctly recognized that the granting of a motion to dismiss, even “with prejudice” is not a final appealable order and attempted to finalize the judicial labor in the trial court on this aspect of the case by entry of the final judgment appealed. However, the “final judgment” is still not a “final” order or judgment for appeal purposes because all counts in the complaint were but different theories of recovery for the same alleged defects in construction of the condominium units and are not “distinct and severable” from each other or from the undismissed counts which remain pending before the trial court. An order dismissing one or more, but not all, counts of a multi-count complaint relating to the same transaction, condition or occurrence, where the dismissed claims for relief are not “distinct and severable” and no defendant is finally dismissed as a party to the cause, is not a final order for appeal under Florida Rule of Appellate Procedure 9.110 nor does such an order of dismissal constitute a non-final order appealable under Florida Rule of Appellate Procedure 9.130. S. L. T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974); Fetters v. United States Fire Insurance Co., 399 So.2d 427 (Fla. 5th DCA 1981); Finney v. Wonder Development Corp., 392 So.2d 583 (Fla. 5th DCA 1980); North Indiaiantic Homeowners Association, Inc. v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980); Robertson v. Florida Rock & Tank Lines, Inc., 385 So.2d 138 (Fla. 5th DCA 1980); Kingsland v. Nat’l Adv. Co., 384 So.2d 701 (Fla. 5th DCA 1980); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975).

DISMISSED.

ORFINGER, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


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

text:
    Phyllis M. GILLARD, Appellant/Cross-Appellee, v. Raymond I. GILLARD, Appellee/Cross-Appellant.
    No. 81-1436.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Jack A. Nants, Orlando, for appellant/cross-appellee.

      Jeff B. Clark of Clark & Hardy, P. A., Orlando, for appellee/cross-appellant.
   FRANK D. UPCHURCH, Jr., Judge.

The wife appeals from a final judgment of dissolution. She questions the court’s award of a special equity to the husband in two parcels of real property. One of the parcels was acquired by the husband prior to the marriage and the other was acquired during the marriage with his separate funds. Both parcels were deeded to husband and wife during the marriage as tenants by the entirety.

The trial judge correctly applied the rule in Ball v. Ball, 335 So.2d 5 (Fla.1976), that upon the unrebutted showing by the husband that he acquired or purchased the properties from sources unconnected with the marriage, a presumption arose that he had a special equity in the properties and it was up to the wife to establish by contradictory evidence that a gift was intended. This she did not do. While the rule in Ball enjoys no great popularity with us, see Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980), cert. granted Fla.Sup.Ct. No. 59,907, and Marsh v. Marsh, 399 So.2d 433 (Fla. 5th DCA 1981), cert. granted, Fla.Sup. Ct., No. 60,823, it is up to the supreme court to make any changes in it.

AFFIRMED.

SHARP, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

The trial judge here applied Ball v. Ball, 335 So.2d 5 (Fla.1976) in the usual manner, holding as a matter of law that a formal conveyance of property by one spouse to both is no basis upon which to infer a donative intent as to the property right conveyed. I concur in an affirmance of the trial judge’s application of Ball v. Ball for the reasons given in the dissent in Marsh v. Marsh, 399 So.2d 433 (Fla. 5th DCA 1981). If on the pending review of Marsh, the Florida Supreme Court modifies the Ball rule in this particular, this case should be reversed.