author: MOORE, Judge.

text:
    Tony Howard WEBB, Appellant, v. STATE of Florida, Appellee.
    No. 77-2336.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Richard L. Jorandby, Public Defender, Jerry L. Schwarz, Asst. Public Defender, and Michael Salnick, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant was charged with the felony of carrying a concealed firearm. He now appeals the denial of his motion to suppress, having entered a plea of nolo contendere and reserving his right to appeal.

At the hearing on the motion to suppress, the evidence revealed that the police, at a briefing session, received a BOLO (be on the lookout) for a “white male, five feet nine, thin build, approximately 130 pounds, light complexion, blonde hair and a pony tail”. Possession of a black colored gun was also mentioned as a way of identifying the suspect who allegedly committed two armed robberies on the two previous days.

Appellant was stopped by police officers in a patrol car as he was walking down the street approximately two miles from the scene of the robberies. The officers advised appellant that they wished to speak to him, and immediately upon getting out of the automobile, one of the officers “patted” the front of appellant’s shirt, finding a .32 caliber revolver. The revolver was not in the officer’s plain view at the time of the “pat”. Appellant was arrested for carrying a concealed firearm.

Appellant contends the trial court committed reversible error in failing to suppress the evidence obtained as the result of appellant’s detention and “pat down”. We agree and reverse.

We believe this case to be controlled by this Court’s decision in St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978) where we held that, “[i]n order for a BOLO to justify such a stop there must be some showing by the State at a suppression hearing that the information contained in the BOLO was reliable”. Here, there was a total lack of such evidence. There was no testimony at the suppression hearing concerning the source of the information contained in the BOLO. In fact, the testimony indicated that the BOLO was unreliable in that a witness to one of the previous robberies testified that the alleged robber had straight, coal black hair down to his shoulders which was not maintained in a pony tail. At a lineup, none of the witnesses to the robberies was able to identify appellant as the alleged perpetrator.

Moreover, the appellant was walking down a public street at a time remote from the robberies, in a vicinity that was distant from the scenes of the robberies. He fully cooperated with the police when they stopped him and there was nothing suspicious in his appearance. Absent a reliable BOLO, the facts known to the police at the time they detained appellant were simply insufficient to form the basis for a reasonable suspicion pursuant to Section 901.151 Florida Statutes (1977). The evidence adduced at the suppression hearing failed to establish the reliability of the BOLO. Compare, State v. Hetland, 366 So.2d 831 (Fla. 2nd DCA 1979). The motion to suppress should have been granted.

REVERSED AND REMANDED.

ANSTEAD and BERANEK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DATA LEASE FINANCIAL CORPORATION, Appellant, v. BLACKHAWK HEATING & PLUMBING CO., INC., an Illinois Corporation, and Andrew Machata, Appellees.
    No. 78-997.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied June 26, 1980.
    Robert T. Scott of Gunster, Yoakley, Criser & Stewart, Palm Beach, for appellant.
    Donald J. Beuttenmuller, Jr. of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellees.
   PER CURIAM.

This is an appeal from an order taxing costs after the entry of a judgment in favor of the appellees as to the issue of appellees’ right to specific performance of an option agreement. At the time of the entry of judgment numerous other issues, including the appellant’s right to compensation, remained pending and unresolved before the trial court. Under these circumstances we are of the opinion that the trial court act prematurely and without authority in taxing costs before the action was finally determined. Lake Region Paradise Island, Inc. v. Graviss, 323 So.2d 610 (Fla.2d DCA 1972). Accordingly, the order taxing costs is hereby reversed with directions that further proceedings to be conducted in accordance with this opinion.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    Stephen DeLUCA, Appellant, v. STATE of Florida, Appellee.
    No. 78-1116.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied June 25, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff and Jack Goldberg, Asst. Public Defenders, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth G. Spillias and Ondina Felipe, Asst. Attys. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his conviction after jury trial of burglary and grand larceny. Error is asserted in the denial of a motion to suppress physical evidence and the admission of a confession.

The police were investigating a burglary and defendant became the focus of this investigation. While at the police station, defendant was advised of his constitutional protections and executed a Miranda Rights Waiver Card. He initially stated to the police that he was not involved in the burglary in question or any other burglary. One of the items taken in the burglary was a particular gold chain and medallion. Defendant wore such a chain when initially questioned and was asked by the officers for consent to search his motel room. It appears defendant consented to the search and signed a consent form. Defendant testified he signed the consent only because the police said a warrant could be obtained. Defendant acknowledges he was told he had the right to refuse. The search disclosed a larger amount of jewelry and other items which after prompt investigation appeared to be stolen.

On the day after the signing of the Miranda Rights Waiver Card defendant was contacted by the police and told of the results of the continued investigation. Without a further Miranda warning, defendant made various inculpatory statements.

Before trial defendant moved to suppress both the evidence seized from his room and his confessions. These motions were denied and the case proceeded to jury trial. During trial the physical evidence was admitted without objection from defense counsel. In fact counsel repeatedly stated that he had no objection. Defendant asserts the consent to search was invalid, that the motion to suppress should have been granted and that the failure to object at trial does not constitute a waiver. We disagree. The failure to object at trial contemporaneously with the admission of the evidence is a waiver of the right to appellate review of the issue. Jones v. State, 360 So.2d 1293 (Fla. 3d DCA 1978); O’Berry v. Wainwright, 300 So.2d 740 (Fla. 4th DCA 1974); Witt v. State, 4th DCA Case No. 79-621, Opinion filed May 14, 1980.

The defendant also asserts that his statements to the police officer should have been suppressed. He argues that his Miranda rights should have been repeated because his confession occurred 24 hours after his arrest. The defendant was initially given full Miranda warnings and voluntarily consented to a search. There is no necessity to continually re-advise an individual in custody as to his Miranda rights. The Federal Courts have considered this issue and held that re-advisement of Miranda rights is not necessary to a valid finding of a knowing and intelligent waiver. See Biddy v. Diamond, 516 F.2d 118 (5th Cir. 1975), cert. den. 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 194 (1976); Maguire v. United States, 396 F.2d 327 (9th Cir. 1960); and U. S. ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir. 1977). In Franklin v. State, 324 So.2d 187 (Fla. 1st DCA 1975), the First District held a 30-minute interval did not necessitate re-advising a defendant who had been reminded of earlier warnings.

Although no directly controlling Florida authority has been cited to us, we conclude that the defendant has failed to demonstrate error and the conviction below is affirmed.

AFFIRMED.

ANSTEAD and MOORE, JJ., concur.


author: LETTS, Chief Judge.

text:
    AETNA LIFE & CASUALTY COMPANY, Appellant/Cross-Appellee, v. Douglas and Sara Ann LITTLE, Herndon, Iles & Scott Insurance Agency, and St. Paul Fire and Marine Insurance Company, Appellees, v. Edward P. GRENNAN, Appellee/Cross-Appellant. AETNA LIFE & CASUALTY COMPANY, Appellant, v. EMERY TRACTOR & EQUIPMENT COMPANY, INC., Douglas and Sara Ann Little, Herndon, Iles & Scott Insurance Agency, and St. Paul Fire and Marine Insurance Company, Appellees.
    Nos. 78-1785, 78-1786.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearings Denied June 30, 1980.

      Cecil H. Albury of Albury, Webb, Park & Glenn, West Palm Beach, for appellant.
    Larry Klein, West Palm Beach, Manley P. Caldwell, Jr. of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, Maher, Overchuck & Langa, Orlando, and Phillips, Babbitt & Cook, West Palm Beach, for appellees Edward P. Grennan, Emery Tractor & Equipment Co., Inc., Douglas and Sara Ann Little.
    Joseph McGuire of Parker, Johnson, Owen & McGuire, Orlando, for appellees Herndon, lies & Scott Ins. Agency and St. Paul Fire and Marine Ins. Co.
   LETTS, Chief Judge.

Aetna Insurance Company appeals from a directed verdict finding coverage under an umbrella binder and also protests a jury verdict absolving its local insurance agent from any liability under the claim. We affirm the former and reverse the latter. Aetna also appeals jury findings of bad faith which we affirm. However, we reverse an award of loss of profits to a successor owner of a business allegedly destroyed by the insurance company’s recalcitrance, but affirm the award for the market value of that same business. We also reverse a compensatory award to the former owner of the business destroyed.

This controversy arises out of a personal injury suit defended by Aetna, resulting in a $435,000 verdict rendered against an insured under the impression that he had a $200,000 coverage limit. After the verdict, Aetna’s lawyer advised the insured to sue the local insurance agent for failing to obtain the $1,000,000 umbrella policy the insured had requested, but did not tell him of the existence of a possible cause of action against Aetna for bad faith. That same lawyer had written a letter to Aetna after the verdict telling them that in his opinion Aetna was liable to the insured under the umbrella coverage because of the actions of the agent. Thereafter, suit was filed on behalf of the insured against the agent but not against Aetna. The insured later obtained new counsel and the instant suit was thereafter brought against Aetna, based on bad faith refusal to settle, whereupon Aetna filed a third party claim against the local agent who issued the umbrella binder, allegedly without approval or permission of the insurer.

We first affirm the directed verdict finding coverage under the umbrella binder. We are aware that a verdict should be directed only when all reasonable deductions and inferences point to but one conclusion Vertommen v. Williams, 287 So.2d 116 (Fla. 4th DCA 1973). In the case now before us, the existence of coverage is the only conclusion we can reach. There is no doubt but that the general line agent informed the insured that he was covered and even wrote a letter to that effect. We concede that the agent was in outright violation of the insurance company’s unfailing practice if he issued the coverage without approval. However, that is not the point. The law is clear that a general line agent has apparent authority to bind the insurer, Russell v. Eckert, 195 So.2d 617 (Fla. 2d DCA 1967) and that is exactly what he did.

We next turn our attention to the jury verdict absolving the general line agent from any liability to the insurance company. We are of the opinion that this issue should not have been presented to the jury and that a verdict should have been directed in favor of Aetna.

The evidence that the agent did not obtain the necessary approvals to issue the coverage is overwhelming. The only conceivable evidence to the contrary comes from the agent himself when he testified that:

“My file at one time told me that Aetna had reinspected and they were going to write the risk.”

Included in his testimony are admissions that he had no personal knowledge of Aet-na’s willingness to issue the policy (nor did anyone else) and that his file, by trial time, did not contain any material indicating that Aetna would write the risk nor did he know where any such material could be found or why it had disappeared.

Such testimony does not rise to the level of evidence from which a jury could conclude that Aetna had agreed to write the policy, Vertommen v. Williams, 287 So.2d 116 (Fla. 4th DCA 1973). It does not say that Aetna did write the policy. It does not say that the Agent knew Aetna had agreed to write it; in fact, he testified that he did not personally know of any such agreement. It says only that at one time, but not now, his file reflected that Aetna would do so. Stacked against that is the overwhelming testimony from various witnesses that Aet-na never agreed to write it and in fact refused to do so.

The agent next argues that even if Aetna did not approve the umbrella coverage, it still cannot maintain a third party complaint because it was guilty of bad faith and therefore a joint tortfeasor not entitled to indemnity under Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977). If the bad faith occurred before, or during the trial of the original $435,000 personal injury verdict, then we would agree with this contention. On the other hand, if the bad faith occurred after the original $435,000 verdict, then Aetna’s liability for the excess over its believed $200,000 limits, would only exist because of the agent’s improper issuance of the binder, and in that event, under the verdict which we now direct, Aetna should receive $235,000 from the agent. The difficulty is that we are unable to determine from the verdict in what time frame and for what actions the jury considered the bad faith to have taken place. There are allegations of bad faith refusal to settle or relay offers during the trial of the original suit. There are also references to the extraordinary behavior of counsel after the original verdict and the subsequent refusal of Aetna to post a bond in excess of $200,-000 or acknowledge the umbrella coverage. Because of this uncertainty, we are of the opinion that Aetna is entitled to a new trial in the bad faith suit but only as to its third party claim against the local insurance agent.

We affirm the jury’s second finding that Aetna acted in bad faith toward the successor corporation which purchased the business, however, the compensatory award of $386,000 must be reduced by the amount allocated to loss of profits. Testimony placed the market value of the business destroyed at $250,193 and loss of profits up to trial time of $134,530. The jury verdict appears to be fairly close to an addition of the two, however, we cannot be absolutely sure. Lost profits and loss of use may be a proper item of damages if the property or business is not completely destroyed. See Hillside Van Lines, Inc. v. Matalon, 297 So.2d 848 (Fla. 3d DCA 1974). However, where the property or business is totally destroyed we hold the proper total measure of damages to be the market value on the date of the loss, Allied Van Lines, Inc. v. McKnab, 331 So.2d 319 (Fla. 2d DCA 1976).

It is argued that the question of the lost profits has not been preserved for appeal. We have examined the transcript and conclude that though the dialogue is no model of clarity, the issue was sufficiently preserved.

Accordingly, if within 30 days the successor corporation agrees to a remittitur of $134,530 subtracted from the total amount, then the judgment for the remainder shall stand approved. If the successor corporation refuses the remittitur, the judgment shall stand reversed for a new trial. See South Florida Farms Co. v. Stevenson, 84 Fla. 235, 93 So. 247 (1922).

We must also reverse the jury award to the original insured who sold the business destroyed to the successor corporation. The award was for $75,000 in compensatory damages, but examination of the record fails to reveal a sufficient basis for anywhere near this sum and no figures were advanced in closing argument to support such an amount. We conclude, therefore, that the compensatory damages awarded were impermissibly speculative and must be reversed. See Asgrow-Kilgore Co. v. Mulford Hickerson Corp., 301 So.2d 441 (Fla.1974). We specifically do not reverse the jury’s initial finding that Aetna acted in bad faith towards the original insured and reverse this portion of the verdict only for a new trial on the issue of damages.

There are several other points on appeal. However, we find no others that demonstrate reversible error.

This cause is affirmed as to the directed verdict finding umbrella coverage; reversed as to the jury verdict absolving the agent; reversed and remanded for a new trial as to the issue of bad faith barring a third party complaint; affirmed as to the jury verdict finding bad faith toward the successor corporation and as to the market value of the business destroyed subject, however, to the remittitur; affirmed as to the jury’s finding of bad faith toward the original insured; reversed for a new trial on the issue of compensatory damages to the original insured. All other points on appeal are affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED IN ACCORDANCE HEREWITH.

ANSTEAD and HERSEY, JJ., concur.

      . These figures are simplistically stated for the purposes of this opinion. We recognize that there may be receipts from the levy, interest, attorneys fees and costs etc., which we do not seek to cancel or alter by this opinion.

      . We refer to trial counsel not of record in this appeal.

      .This destruction came about because when Aetna appealed the original $435,000 verdict, it refused to supersede anything but the $200,000 on the policy limits. This resulted in execution on the insured’s business which wiped it out.


text:
    Dawn H. BRADSHAW, Appellant, v. AMERICAN STATES LIFE INSURANCE COMPANY, etc., Appellee.
    No. 79-851.
    District Court of Appeal of Florida, Fourth District.
    May 21, 1980.
    Rehearing Denied June 25, 1980.
    DeSantis, Cook, Meehan, Cohen, Gaskill & Silverman, North Palm Beach, and Larry Klein, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for appellee.
   PER CURIAM.

Although there is some question as to the propriety of submitting this case to a jury when the essential facts were undisputed and the case required only a construction of conflicting provisions in an application and policy of life insurance, we believe that the jury’s resolution of the issue was proper and that the trial court abused its discretion in ordering a new trial. Carolina Life Insurance Company v. DuPont, 141 So.2d 624 (Fla. 1st DCA 1962). Accordingly, this cause is hereby reversed with directions that the jury verdict be reinstated and judgment entered thereon.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


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

text:
    FLORIDA GOVERNOR’S COUNCIL ON INDIAN AFFAIRS, Appellant, v. Jan M. TUVESON, Appellee.
    No. PP-397.
    District Court of Appeal of Florida, First District.
    May 23, 1980.

      Algie R. Cooper of Knowles, Randolph & Cooper, Tallahassee, for appellant.
    P. Kevin Davey of Douglass, Davey & Cooper, Tallahassee, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The trial court correctly found that there are no genuine factual issues on the question of whether the Florida Governor’s Council on Indian Affairs is a state agency within the meaning of Section 112.041, Florida Statutes (1978 Supp.) and Chapter 120, and correctly concluded as a matter of law that the Council is a state agency and is required to conform to the requirements of those statutes. The Council, though having quasi-independent existence by reason of its incorporation, was established by executive order of the Governor; the Council functions in response to that executive order, as a public agency; the Council is funded in part by state appropriations and regards itself as a public agency for various purposes including sales tax exemption and use of Florida Administrative Weekly; and, as evidenced by Chapter 79-190, Section 4, Fla.Laws, the legislature regards the Council as subject at least in part to statutory control:

All powers, duties, and functions, including those under sections 450.181 and 450.191, Florida Statutes, and all records, property, and unexpended balance of appropriations, allocations, and other funds of the migrant labor section of the Department of Community Affairs and of the Governor’s Council on Indian Affairs of the Division of Community Services of the Department of Community Affairs are transferred by a type IV transfer to the Executive Office of the Governor.

AFFIRMED.

ERVIN and WENTWORTH, JJ., concur.


author: PEARSON, TILLMAN, Associate Judge.

text:
    Johnny STRAUGHTER, Appellant, v. The STATE of FLorida, Appellee.
    No. 78-2068, 78-1958.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied June 27, 1980.

      Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN, Associate Judge.

These appeals which have been consolidated by this court are from (1) an adjudication of guilty of murder in the second degree and possession of a firearm during the commission of a felony with a life sentence thereon, and (2) a revocation of prior probation based upon the adjudication of guilty of the two crimes above enumerated. The adjudication was pursuant to a jury verdict. We consider first the appeal from the adjudication of guilty of murder in the second degree. It may be noted here that the State has conceded error upon the adjudication of guilty of the crime of possession of a firearm during the commission of the murder.

The appellant, Johnny Tipton Straughter, was indicted for first degree murder and was tried thereon. The jury returned a verdict of guilty of second degree murder. The principal argument advanced for reversal and the one on which we reverse the judgment and sentence is that the State failed to prove the essential elements of the crime charged or of the lesser included offense of which the defendant was convicted.

The State’s theory of the prosecution was that the defendant participated in an attempted robbery which resulted in the killing of the victim. The evidence presented to the jury totally failed to prove a robbery or an attempted robbery. The evidence placed the defendant in the vicinity of the killing and nothing more. The only evidence by which the State hoped to establish the essential element of a felony in the felony-murder case was the testimony of a cellmate of the defendant that the defendant had discussed with the witness the charges against the defendant. The cellmate’s testimony was so ambiguous, so modified by “I guess,” and so unexplained as to the street language used that it was worthless for the purpose for which it was presented.

The proof of the underlying felony in a felony-murder prosecution must be proved beyond any reasonable doubt. Robles v. State, 188 So.2d 789 (Fla.1966). The best that can be said for the evidence when viewed in the light most favorable to the jury verdict is that the defendant was in the proximity of a killing and may have participated in some sort of an altercation in which the victim was killed. There certainly was not a completed robbery because the victim was in possession of a large amount of cash which was not taken. There may have been an attempted robbery but that is speculation. Criminal convictions must not be based upon speculation. Thompson v. State, 276 So.2d 218 (Fla. 4th DCA 1973); Whitehead v. State, 273 So.2d 146 (Fla. 2d DCA 1973).

The State made no effort to prove premeditation, nor does its brief suggest any basis for the conviction other than the felony-murder theory discussed. Therefore, the proof was insufficient to convict the defendant of murder in the first degree, which was the crime charged.

A second way in which the defendant could be found guilty of murder in the second degree would be if the record established that the killing of the victim was . .by any act imminently dangerous to another and evincing a depraved mind . . . ” See Section 782.04(2), Florida Statutes (1977). However, nothing in the present record makes such a showing. Therefore, the proof was insufficient to convict the defendant of murder in the second degree, which was the crime for which the defendant was convicted.

We find other reversible errors in the record of this conviction, which need not be discussed in view of our holding above. As a further consequence of our reversal of the judgment and sentence of the conviction of murder in the second degree, we reverse the revocation of defendant’s probation, which was based solely upon the conviction. Here again we find in the record a reversible procedural error, which need not be discussed.

Reversed with directions to discharge the defendant.


text:
    Dr. Freddy GARGANO and Evelyn Gargano, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Appellees.
    No. 79-1013.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellants.
    Magill & Reid and Kevin O’Connor, Miami, for appellees.
    Before BARKDULL and HUBBART, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

The final summary judgment under review is affirmed upon a holding that there can be no insurance coverage on the subject homeowners liability policy [issued by the appellee Liberty Mutual Insurance Company] for bodily injury and property damage caused by the negligent operation of a motor vehicle as against a lawsuit brought against the insured appellants [Dr. Freddy Gargano and Evelyn Gargano] for the negligent entrustment of a motor vehicle to their minor son because an exclusion in the subject policy is, in our view, directly applicable to defeat coverage, to wit: “[t]his policy does not apply: ... a. [t]o bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of: . (2) any motor vehicle owned or operated by, or rented or loaned to any insured.” The cause of action of negligent entrustment of a motor vehicle to a minor child resulting in damages caused by the minor’s negligent operation of the motor vehicle necessarily arises from the ownership, operation, or use of said motor vehicle, Spector v. Neer, 262 So.2d 689 (Fla. 3d DCA 1972), and, accordingly, falls squarely within the above exclusion in the subject policy. Hanover Insurance Co. v. Grondin, 119 N.H. -, 402 A.2d 174 (1979); Lumbermens Mutual Casualty, Co. v. Kosies, 124 Ariz. 136, 602 P.2d 517 (Ct.App.1979); Barnstable County Mutual Fire Insurance Co. v. Lally, 374 Mass. 602, 373 N.E.2d 966 (1978); Cooter v. State Farm Fire and Casualty Co., 344 So.2d 496 (Ala.1977). The trial court was eminently correct in concluding that there could be no insurance coverage under this policy based on these circumstances.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Barbara COOPER, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 79-1084.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied June 18, 1980.
    Greene & Cooper and Joan M. Bolotin, Sams, Gerstein & Ward, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

On December 17, 1974, while a patient at Jackson Memorial Hospital, the plaintiff-appellant, Barbara Cooper, was allegedly injured by the negligence of Dade County hospital employees. She did not give notice of her claim to Dade County within 60 days of the injury as provided by § 2-2, Dade County Code. Solely because of this admitted fact, the trial judge directed a verdict in favor of the defendant-appellee, Dade County. Ms. Cooper appeals from the re-suiting judgment entered against her. We reverse.

The parties have expressly stipulated that the result in this case turns entirely upon the validity of § 2-2 on the date of the incident in question. We have concluded that the code provision was invalid from the time of its adoption in 1958 because it conflicted with Section 95.08, Florida Statutes (1965). That statute, which was first enacted in 1877 and which was repealed effective January 1, 1975, provided:

“Every claim against any county shall be presented to the board of county commissioners within one year from the time said claim shall become due, and shall be barred if not so presented.”

In Scavella v. Fernandez, 371 So.2d 535 (Fla.3d DCA 1979), we held that § 2-2 was in conflict with the three-year notice provision of Section 768.28(6), Florida Statutes (1977) and was therefore invalid under the Home Rule Amendment to the Florida Constitution. Art. VIII, § 11(5), Fla.Const. of 1885 (re-enacted as Art. VIII, § 6(e), Fla. Const, of 1968). Accord, Baradat v. Metropolitan Dade County, 377 So.2d 256 (Fla.3d DCA 1979); Verhunce v. Metropolitan Dade County, 374 So.2d 640 (Fla.3d DCA 1979); Perez v. Miami Dade Water & Sewer Authority, 372 So.2d 185 (Fla.3d DCA 1979). Because Section 768.28 did not become effective until January 1, 1975, 15 days after the accident in question, the holding in Scavella is not directly controlling. Its reasoning, however, is.

Section 768.28(6) provides that no tort action shall lie against a governmental body “unless” a claim is filed within three years; Section 95.08 provided that a claim against a county is barred “if not presented” within one year. Contrary to the appellee’s contention here, we are unable to detect any meaningful distinction between the two statutes which could lead to a result concerning the effect of Section 95.08 on § 2-2, which is contrary to Scavel-la’s conclusion as to Section 768.28(6). This view is strengthened by the fact that Section 95.08 was repealed by Ch. 74-382, § 26, Laws of Fla., as of January 1, 1975, the effective date of Section 768.28. This legislative action clearly indicates that, at least as to tort claims against counties, the three year period in Section 768.28(6) was simply substituted for the one-year notice provision of Section 95.08. Thus, just as it was held in Scavella that the county could not validly shorten the three-year claim period granted by the legislature in Section 768.-28(6), so it could not restrict the one-year period for filing the same claim, see Waite v. Dade County, 74 So.2d 681 (Fla.1954); Kahl v. Board of County Commissioners of Dade County, 162 So.2d 522 (Fla.3d DCA 1964), previously granted by Section 95.08.

Essentially for the reasons stated in Scav-ella, we therefore hold that § 2-2 was invalid on December 17, 1974. Accordingly, the judgment below is reversed and the cause remanded for trial.

Reversed and remanded.

      . Kelso v. Board of Education, 42 Cal.App.2d 415, 109 P.2d 29 (1941) provides additional and square authority for our holdings in Scavella and in this case that a local government may not validly specify a shorter period for the filing of a tort claim than the one provided by state law. See generally Eastlick v. City of Los Angeles, 29 Cal.2d 661, 177 P.2d 558 (1947); cf. also Stephens v. Board of County Commissioners of Okaloosa County, 278 So.2d 269 (Fla.1973).

      . While this court has enforced § 2-2 in the Kahl case and others it has never before been presented with the contention that the code provision was invalidly in conflict with Sec. 95.08.

      . At the oral argument, the court evinced a concern that the issue presented by the parties might be moot if it were shown that the plaintiff did not give notice even within the one-year period provided by Sec. 95.08. After the receipt of supplemental briefs on the question, we have determined otherwise. Ms. Cooper was not required to comply with Sec. 95.08 simply because it was repealed without a savings clause on January 1, 1975, before the year expired. Tel Service Co. v. General Capital Corp., 227 So.2d 667 (Fla.1969); Yaffee v. International Co., 80 So.2d 910 (Fla.1955).
      Moreover, the repeal of Sec. 95.08 did not serve to validate § 2-2 as to pre-1975 incidents. Since it was invalid ab initio, the code provision could not be “revived” by any subsequent legislative activity. State ex rel. Blalock v. Lee, 146 Fla. 385, 1 So.2d 193 (1941); see also Niesel v. Moran, 80 Fla. 98, 85 So. 346 (1920); 73 Am.Jur.2d Statutes § 428, n. 42 (1974); compare Butler v. Goreley, 146 U.S. 303, 13 S.Ct. 84, 36 L.Ed. 981 (1892). This is all the more clearly the case because Sec. 95.08 was, simultaneously with its repeal, replaced by Sec. 768.-28(6), which also conflicts with and thus invalidates § 2-2. That provision has therefore never enjoyed a period of validity. See Goldenberg v. Dome Condominium Association, 376 So.2d 37 (Fla.3d DCA 1979).


text:
    Thomas Henry SEUM, Appellant, v. Shirley Marjorie SEUM, Appellee.
    No. 79-1129.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied June 24, 1980.
    John H. Lipinski, Miami, for appellant.
    Barranco, Darlson, Daniel & Bluestein and Steven Kellough, Miami, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL PEARSON, JJ.
   PER CURIAM.

We find no error in the trial proceedings below, nor abuse of discretion in the challenged portions of the final judgment of dissolution which (a) awarded the wife the husband’s interest in the marital home as lump-sum alimony, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Hague v. Hague, 382 So.2d 852 (Fla. 3d DCA 1980), and cases cited; (b) fixed the amount of permanent periodic alimony, Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976) and (c) provided for the payment of Ms. Seum’s attorney’s fees by Mr. Seum. Canakaris v. Canakaris, supra; Creel v. Creel, 378 So.2d 1251 (Fla. 3d DCA 1979). There are, however, no special circumstances presented in the record which justify the requirement that she be named the beneficiary of his life insurance policies. See Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1978); Blass v. Blass, 316 So.2d 308 (Fla. 3d DCA 1975). Upon remand, this provision shall be stricken from the judgment, which is otherwise affirmed.

Affirmed in part, reversed in part.


author: PEARSON, DANIEL, Judge.

text:
    In re ESTATE of Theodore H. WILISCH, Deceased. Robert SECK, Appellant, v. Joseph G. HEADLEY, Appellee.
    No. 79-1694.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.

      Sullivan, Ranaghan, Bailey & Gleason and William E. Stockman, Pompano Beach, for appellant.
    Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before SCHWARTZ and PEARSON, DANIEL, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   PEARSON, DANIEL, Judge.

Seek, the personal representative of the estate of Theodore H. Wilisch, a decedent, appeals from an order of the probate court extending the time for Headley to bring an independent action against the estate. Seek contends that the probate court’s finding of good cause, a predicate for the extension, was an abuse of discretion. Mindful of the admonition that it is not our function to substitute our judgment for that of the trial court through reevaluation of the evidence below, Shaw v. Shaw, 334 So.2d 13 (Fla.1976), we limit our inquiry to determining whether the trial court’s finding of good cause was supported by competent evidence. Having determined that it was, we affirm.

Theodore H. Wilisch died. Seek, the decedent’s nephew and personal representative, sought out Headley to engage him as an attorney. Seek knew that Headley had satisfactorily represented the decedent, Wil-isch, in protracted divorce proceedings covering some seven years. Headley disclosed to Seek at their first meeting that the decedent owed him money for legal fees and costs and that Headley would compute the amount and make claim for it. Seek decided to hire Headley despite this disclosure. Headley had the impression from this meeting with Seek that the moneys owed to him would be paid without the need for litigation. On February 7, 1979, Headley filed his statement of claim for slightly in excess of $70,000. From the time of the receipt of this claim, Seek made no effort to contact Headley. Instead, Seek engaged the services of an undisclosed attorney to prepare an objection to claim, which Seek filed on February 16,1979. Significantly, Seek took no steps to discharge Headley despite his admitted realization that Headley’s claim was adverse to the estate. From February 16 on, Headley unsuccessfully attempted to telephone Seek some ten to fifteen times. Headley’s messages to return his calls went unheeded. Shortly before March 14, 1979, the attorney who prepared the objection for Seek surfaced with the announcement that Seek had retained new counsel and the request that Headley withdraw. On March 14, 1979, Headley and Seek’s new counsel stipulated to the substitution, and on March 20, 1979, the trial court entered an order thereon.

On April 2, 1979, Headley filed a petition for extension of time to bring an independent action against the estate.

The trial court found, inter alia :

“Mr. Seek was well aware of the provision of law that would ban a creditor if he did not timely commence an independent action. He had Mr. Headley at somewhat of a disadvantage. Mr. Head-ley was not free to ethically commence an action against the estate without withdrawing as attorney of record. He had reason to believe that his claim for services would be paid, compromised or otherwise settled. His testimony on this point is extremely credible in light of the size of his claim and in light of the fact that human knowledge, insight, reason, judgment and understanding clearly militate to corroborate his testimony because his claim for compensation (assuming it is meritorious) was greatly in excess of the fee to be received as the attorney for the estate. Mr. Seek’s failure to respond to his telephone calls or to communicate with him in any manner left Mr. Headley between the proverbial ‘rock and a hard place’. The high ethical standard of due diligence and good faith that an attorney owes a client is not a one-way street.
“If Mr. Headley had possessed a crystal ball and could have looked into the mind of Mr. Seek, he could have timely fashioned and given notice on a petition to withdraw and obtained an order of withdrawal and still commenced a timely independent action without violating the Canons of Ethics. He had no way of knowing this and hád a right to rely upon his previous understanding with his client and expectation that he would deal fairly and honorably with him. It is equally and abundantly clear that Mr. Seek knew what the consequences of the law were and he admitted not having any communication with Mr. Headley. Mr. Headley continued to represent the estate as attorney of record' as evidenced by his letter dated March 12, 1979, ‘Respondent’s Exhibit 5’, imploring Mr. Seek to assist him in the timely filing of an inventory. Under these circumstances, Mr. Seek’s knowledge and desires which are undisputed, together with his failure to respond in any way to Mr. Headley’s telephonic and written communications amount to a species of fraud which the Florida courts have always been ready to rectify.”

The trial court concluded:

“In sum, there is both estoppel and lulling into a false sense of security and a species of fraud demonstrated on this record by Mr. Seek’s willful and deliberate attempt to serve an objection upon his attorney of record and then failure to communicate with him concerning settlement or withdrawal so that the attorney could protect his own interests.”

Section 733.705(3), Florida Statutes (1977), provides in pertinent part:

“The Claimant shall be limited to 30 days from the date of service of an objection within which to bring an independent action upon the claim. For good cause, the court may extend . . . . the time for filing an action or proceeding after objection is filed. . . .” (emphasis supplied).

This statute has consistently been construed to vest the trial court with discretion to extend the time for filing an independent action even when the motion for extension is made beyond the 30-day period. In re Estate of Sale, 227 So.2d 199 (Fla.1969); In re Goldman’s Estate, 79 So.2d 846 (Fla.1955); In re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (1938). The determination of “good cause” is tested against a given standard of judicial action: there must be a legal excuse for the failure to timely commence the action. In re Goodman’s Estate, supra. It has been held that a legal excuse for extension exists where a claimant (as Headley herein) forgoes the commencement of an independent action under the belief that his objected-to claim will be paid or settled without the need for action, and he reasonably comes to that belief because of representations or actions of the personal representative of the estate or his agent. In re Estate of Herskowitz, 342 So.2d 530 (Fla. 3d DCA 1977); In re Estate of Norregaard, 220 So.2d 653 (Fla. 3d DCA 1969); Sessions v. Jelks, 194 So.2d 307 (Fla. 1st DCA 1967).

There remains to be answered Seek’s contention that if, arguendo, Headley was lulled from February 20 (the date upon which he received Seek’s objection) to March 14 (the date upon which he signed the withdrawal stipulation), there still remained adequate time to file his action during which there existed no legal excuse for the failure to file. It is first our view that Headley was not ethically free to sue the estate until March 20, the date upon which the lower court’s order approving his withdrawal was entered. But even if Headley could have brought suit as of March 14, we are impelled to hold that an appropriate finding of good cause, supported by competent evidence, is not defeated by the fact that the personal representative, who has been responsible for engendering in the claimant a false sense of security, comes forward shortly before the 30-day time limit and informs the claimant that he will not pay, settle or negotiate the claim. We cannot decide on the basis of this record that the lulling was dissipated so early within the 30-day period so as to negate, as a matter of law, the showing of good cause. To so hold would be to permit a personal representative to wait until the eve of the expiration of the 30-day period to declare that he will not pay the claim and thereby prevent a claimant from showing good cause. Such a result would be intolerable.

Affirmed.

      . Seek suggests that it was improper for Head-ley to undertake to represent him initially. The propriety of Headley’s engagement as attorney for the personal representative is not material to any issue on this appeal. We note, however, that a lawyer is not absolutely precluded from accepting employment under circumstances where he has disclosed his potentially adverse financial interest to the client and does not anticipate the need for litigation which would require his withdrawal. See Fla.Bar Code Prof. Resp., D.R. 5- 101(A).


author: BASKIN, Judge.

text:
    Jan Anthony FOX, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1844.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied June 24, 1980.

      Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

Defendant entered pleas of nolo conten-dere to charges of dealing in stolen property and grand theft second degree in each of two separate cases, reserving his right to appeal denials of his motions to dismiss the informations. He contends the traverses filed by the state are insufficient because they fail to deny material facts. He seeks a hearing on the merits on the motions to dismiss. We find his contentions to be correct and reverse.

The sworn motions allege facts detailing the taking of the items, identification of the items by the victims, the sale to the Miami Coin Exchange of Sheila Goodman’s tea set, the seizure of Mr. Walker’s gold diamond ring from defendant’s person upon defendant’s arrest, the statement by defendant that he purchased the silver tea set at a garage sale located at an unknown address, and that he purchased the gold diamond ring from David Lee, a Miami resident. In addition, the motions aver:

A necessary element of the crime of dealing in stolen property, pursuant to Ch. 812.019(1), F.S., is that the Defendant ‘knew or should have known’ that the property was stolen.
A necessary element of the crime of grand theft in the second degree, pursuant to Ch. 812.014, F.S., is that the Defendant ‘knowingly’ obtained or used or ‘knowingly’ endeavored to obtain or use property of Ms. Goodman [or Mr. Walker], with the ‘intent to permanently deprive’ Ms. Goodman [or Mr. Walker] of a right to said property.

In its traverses, the state “specifically denies the following factual matters . . ” :

1. On June 6,1979, the defendant was arrested when he entered the Miami Coin Exchange.
2. A necessary element of the crime of grand theft in the second degree pursuant to Chapter 8, 12.014 [sic] Florida Statutes, is that the defendant knowingly obtained or used or knowingly endeavored to obtain or use the property of Ms. Goodman [or Mr. Walker] with the intent to permanently deprive Ms. Goodman [or Mr. Walker] of the right to said property.

Rule 3.190(d), Florida Rules of Criminal Procedure, permits the automatic denial of a motion to dismiss if the state files a traverse “which with specificity denies under oath the material fact or facts alleged in the motion to dismiss.” See Ellis v. State, 346 So.2d 1044 (Fla. 1st DCA 1977). The filing of a traverse which denies no material fact is insufficient as a matter of law. State v. Kemp, 305 So.2d 833 (Fla. 3d DCA 1974).

The traverses filed by the state in this case deny conclusions of law but fail to deny material facts. The state argues that defendant’s motions must demonstrate that the undisputed facts fail to establish a pri-ma facie case. State v. Sedlmayer, 375 So.2d 887 (Fla. 3d DCA 1979); Ellis v. State, supra. The state argues also that defendant’s guilt may be proven by circumstantial evidence. We find the sworn motions to dismiss set forth appropriate facts with specificity requiring the state to file a traverse which denies with specificity the material facts alleged in the motions. In the absence of such denial, the defendant is entitled to a hearing on the merits of the motions as a result of the filing of the demurrers. See Kassel v. State, 382 So.2d 1354 (Fla. 4th DCA 1980) (Op. filed on rehearing, April 30, 1980).

For these reasons, we reverse the decision of the trial court and remand this cause for further proceedings directing that the motions to dismiss be considered on their merits.

PEARSON, TILLMAN (Ret.), Associate Judge, dissents.

      . One case involved the taking of a silver tea set from the home of Sheila Goodman and its sale to the Miami Coin Exchange for $72.00. The other case involved a taking and sale of jewelry belonging to John Walker.

      . The state filed demurrers in addition to the traverses.

      . From the record, it appears the state’s denial of paragraph one was predicated upon a clerical error in the date of the arrest contained in defendant’s motions to dismiss. Under these circumstances, the state’s denial was not a denial of a material fact.


text:
    Nieves GUERRERO, Appellant, v. William KELLY, Christine Kelly and Farmers Reliance Insurance Company, Appellees.
    No. 79-1979.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied June 27, 1980.
    Friesner & Hatfield, Miami, and Andrew Wax, for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed upon authority of the holdings in Melton v. Estes, 379 So.2d 961 (Fla. 1st DCA 1979); Ball v. Ates, 369 So.2d 1023 (Fla. 1st DCA 1979); and Vermont Mutual Insurance Company v. Conway, 358 So.2d 123 (Fla. 1st DCA 1978).


text:
    ADELL PLASTICS, INC., Appellant, v. DART INDUSTRIES, INC., Appellee.
    No. 79-2350.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Rehearing Denied June 25, 1980.

      Stephens, Schwartz, Lynn & Chernay and Robert M. Klein, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and Ralph Ben Reid, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

This is an appeal from a non-final order entered by the Circuit Court of Dade County denying appellant’s motion to dismiss and amended motion to dismiss for lack of jurisdiction over the person. We find error and reverse.

Appellee having failed to meet its burden of proving facts sufficient to establish in personam jurisdiction over appellant, a foreign corporation, the trial court erred in denying the appellant’s motion to dismiss and amended motion to dismiss. See Harlo Products Corp. v. J. I. Case Company, 360 So.2d 1328 (Fla. 1st DCA 1978) and Hyco Manufacturing Company v. Rotex International Corporation, 355 So.2d 471 (Fla. 3d DCA 1978).

Reversed.


author: BERANEK, JOHN R., Associate Judge.

text:
    William T. COLEMAN, Jr., Paul Chell, Ronald A. Scott, Donald E. Ewing, Philip E. Sherman, Martha Maroska, Peter Maroska and Jane Thompson, Appellants, v. Palmer W. COLLINS, Pierce Wood, et al., Appellees.
    No. 77-2542/NT4-81.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Rehearing Denied June 30, 1980.

      James S. Cheney, Melbourne, for appellants.
    Robert T. Westman of Stromire, West-man & Lintz, Cocoa, for appellees.
   BERANEK, JOHN R., Associate Judge.

Defendants, William Coleman, Paul Chell, Ronald Scott, Donald Ewing, Martha Ma-roska, Peter Maroska, and Jane Thompson, appeal from various separate final judgments awarding plaintiff/appellee, Palmer W. Collins, compensatory and punitive damages for defamation and malicious prosecution. Appellants contest, among other things, the sufficiency of the evidence to prove defamation, and the court’s instruction to the jury regarding malicious prosecution. We reverse.

In November of 1970, Mr. Collins bought a piece of property on the corner of Bahama Drive and South Patrick Drive in Indian Harbour Beach, Florida. Prior to acquiring title, Mr. Collins and his grantor agreed to deed a 20 foot strip of the property to the City of Indian Harbour Beach. The City, however, refused to accept title unless the deed included a reverter clause stating that if the City did not maintain the property as a park, title would revert to Mr. Collins.

On December 1, 1970, Mr. Collins was appointed City Attorney for the City of Indian Harbour Beach, a key factor in this case. He conveyed the 20 foot strip to the City on December 30, 1970, including the required reverter clause in the deed. No problems arose until July 3, 1974, when Mr. Collins announced at a Planning and Zoning Board Meeting attended by the city council that he intended to invoke the reverter clause because the City was not maintaining the property. Approximately ten days later, Peter Chell, an Indian Harbour Beach resident, wrote an “urgent memo” to other Indian Harbour Beach residents alerting them of Mr. Collins’ proposed action. The memo stated in pertinent part:

In turn it is now revealed by City Attorney Palmer Collins that he didn’t give title to the north property “free and clear” but that he apparently sneakyly (sic) put in a revoking clause in the deed, which might allow him at a future date to regain title to the property.
******
4. That we question the ethics of the action of the City Attorney in this case and that we question his fitness to continue to hold that office since he has an obvious conflict of interest which he does not appear to be properly handling. (Emphasis supplied.)

Mr. Chell delivered the memo to Martha Maroska, who distributed it to the residents.

On December 2,1974, two town residents, William Coleman and Ronald Scott, sued Mr. Collins to recover the property. The trial court entered a final judgment in Mr. Collins’ favor on March 28, 1975. Philip Sherman, a/k/a Sherman Philips, Jane Thompson and Donald Ewing, via their attorney, Pierce Wood, filed a second suit on March 10,1975, against Mr. Collins to recover the 20 foot strip, with the court again finding for Mr. Collins. Edward Truex filed a third suit against Mr. Collins on December 19, 1975, this time seeking to enjoin him from acting as City Attorney. Mr. Collins won this suit, also.

Mr. Collins subsequently sued the various people mentioned above for defamation and malicious prosecution. On the malicious prosecution count, the jury awarded Mr. Collins $1000 in punitive damages against Jane Thompson, $1000 in punitive damages against Donald Ewing, $2000 in punitive damages against Edward Truex, and $2500 in compensatory damages against William Coleman, Ronald Scott, Donald Ewing, Edward Truex, Philip Sherman, and Jane Thompson, jointly and severally. On the defamation count, the jury awarded Mr. Collins $10,000 in punitive damages against Martha Maroska, $20,000 in punitive damages against Peter Chell, and $2500 in compensatory damages against Martha Maros-ka, Peter Maroska, and Paul Chell, jointly and severally.

The facts of this case indicate that plaintiff/appellee was a public official; therefore, the case is governed by New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Counsel for the plaintiff conceded this before the trial court, and the decision of this Court in Finkel v. Sun Tattler Company, Inc., 348 So.2d 51 (Fla. 4th DCA 1977), cert. den., 358 So.2d 135 (Fla.1978), so holds. Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50 (Fla. 4th DCA 1976), cert. den. 354 So.2d 351 (Fla.1977), cert. den. 439 U.S. 910, 99 S.Ct. 277, 58 L.Ed.2d 255 (1978), traces the evolution of defamation of public officials and is directly pertinent. As established in the New York Times case, a constitutional privilege regarding public criticism of officials such as the plaintiff exists:

“The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ —that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Palm Beach Newspapers, Inc. v. Early, supra, 51, citing New York Times Company v. Sullivan, supra, 376 U.S. at 279-80, 84 S.Ct. at 726.

Early details the elements of the plaintiff’s cause of action as follows:

It thus appears that under the present state of the law concerning an action for libel by a public official, the plaintiff has the burden of showing by clear and convincing evidence that the defamatory statement was (1) a statement of fact, (2) which was false, and (3) made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. We conclude from our examination of the briefs and those portions of the record to which our attention has been directed, that the plaintiff/appellee did not meet that burden as is illustrated by the following sampling of the various articles of which plaintiff complained. Palm Beach Newspapers, Inc. v. Early, supra, 52.

Appellants contend the alleged defamatory publication was not a statement of fact and that there was insufficient evidence to demonstrate “actual malice.” Ap-pellee counters that the defendants accused him of “sneakily” inserting the reverter clause and that they questioned his ethics. Again, the Early decision is applicable. There we analyzed the particular publications alleged to be defamatory and stated as follows:

Plaintiff/appellee complained that the defendants characterized his tenure in office as unsuccessful, and stated that he was unfit to hold the office of Superintendent of Public Instruction because of his ineptness, incompetence and indecisiveness. All of these charges were clearly matters of opinion, not statements of fact, and were proper subject of comment on a public official’s fitness for office. (Emphasis in original.) Palm Beach Newspapers, Inc. v. Early, supra, 52.

If the characterization of a school superintendent as unsuccessful, inept, incompetent and indecisive, is, as a matter of law, not defamatory, then the characterization of plaintiff as “sneaky” is not defamatory. Further, the mention of ethics in regard to plaintiff and the statement as to his “fitness to continue to hold that office” is within the privilege of criticism of public officials. We hold that the statements here were clearly matters of opinion, not statements of fact, and that, as such, the trial court erred in submitting these issues to the jury under the defamation count.

Appellants attack the verdicts and judgments on the malicious prosecution count on various grounds. We reverse, finding the court’s instruction to the jury on this issue erroneous. The instruction in question was as follows:

I instruct you as a matter of law that all of the lawsuits against Palmer W. Collins were terminated in his favor in the nature of all of the judgments entered in his favor, evidence of fact that there was no legal precedent for such lawsuits and consequently no probable cause. . It is not necessary to prove actual malice in order to recover for malicious prosecution. Only legal malice is necessary. . . . The legal malice necessary to support an award of compensatory damages in such a case may be inferred solely from a want of probable cause.

Plaintiff theorized that the three lawsuits brought by citizens against him were without probable cause and, maliciously prosecuted, resulting in damage to him.

The elements of a cause of action for malicious prosecution are stated in Fee, Parker and Lloyd, P. A. v. Sullivan, 379 So.2d 412, 414-415 (Fla. 4th DCA 1980):

It is well settled in Florida that an action for malicious prosecution lies where there is a concurrence of the following elements: (1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff; (4) the absence of probable cause for such prosecution; (5) the presence of malice; and (6) damages conforming to legal standards resulting to the plaintiff. Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931); Tatum Brothers Real Estate and Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926); Burchell v. Bechert, 356 So.2d 377 (Fla. 4th DCA 1978).

The instruction given in the instant case had the effect of telling the jury that there was no probable cause as a matter of law for the bringing of the initial suits because of the termination of the suits in plaintiff’s favor. The jury was further told that, solely from this fact, malice could be inferred. This instruction was erroneous and tantamount to the grant of a directed verdict' in plaintiff’s favor. We, therefore, conclude the trial court erred in instructing the jury on the malicious prosecution count. Accordingly, the judgments are reversed.

This cause is remanded to the trial court with instructions to enter a directed verdict in favor of the defendants on the defamation count. The malicious prosecution count is remanded for purposes of new trial.

REVERSED AND REMANDED WITH DIRECTIONS.

ANSTEAD, HARRY L., and DAKAN, STEPHEN LEE, Associate Judges, concur.

      . Although not necessary to this decision, we note that the requirement of proof of actual malice “with convincing clarity” has not been met. See Cape Publications, Inc. v. Adams, 336 So.2d 1197 (Fla. 4th DCA 1976), cert. den. 348 So.2d 945 (Fla.1977), cert. den. 434 U.S. 943, 98 S.Ct. 440, 54 L.Ed.2d 305 (1977).


text:
    PAL-MAR WATER MANAGEMENT DISTRICT, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF MARTIN COUNTY, Florida, and South Florida Water Management District, Appellees.
    No. 78-1021.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    Rehearing Denied June 30, 1980.

      Charles C. Chillingworth of Chillingworth & Considine, Palm Beach, for appellant.
    John T. Carmody, Jr., County Atty., and Stephen Fry, Martin County Legal Dept., Stuart, for appellee, Board of County Commissioners of Martin County, Florida.
    John H. Wheeler and Thomas J. Schwartz, West Palm Beach, of counsel, South Florida Water Management Dist.
   MOORE, Judge.

Pal-Mar Water Management District (Pal-Mar) seeks review of an order of the governing board of the South Florida Water Management District which declares that certain phases of Pal-Mar’s drainage project are not a closed system as defined in Section 373.403(6) Florida Statutes and, therefore, are not exempt from the rules of the District and the provisions of Chapter 373, Florida Statutes. We affirm.

The statutes in question in this appeal are Section 373.403(6), Florida Statutes (1977), which states:

“Closed system” means any reservoir or works located entirely within lands owned or controlled by the user and which requires water only for the filling, replenishing, and maintaining the water level thereof.

and Section 373.406(3), Florida Statutes, (1977), which states:

Nothing herein, or in any rule, regulation or order adopted pursuant thereto, shall be construed to be applicable to construction, operation, or maintenance of any closed system. However, part II of this chapter shall be applicable as to the taking and discharging of water for filling, replenishing, and maintaining the water level in any such closed system.

There is no question that Section 373.406(3) exempts “closed systems” from the requirements of Chapter 373, Part IV, Florida Statutes, in particular, Sections 373.413 and 373.416.

Pal-Mar contends that its drainage project meets the requirements of a closed system, even though Pal-Mar does not presently own or control all the land necessary to implement the project, because it has the statutory authority and the intent (as evidenced by its drainage plan) to acquire such land. See, e. g. Sections 298.22, 298.24, 298.28 and 298.62, Florida Statutes.

As noted above, Section 373.403(6) provides that a “ ‘Closed system’ means any reservoir or works located entirely within lands owned or controlled by the user . .” Pal-Mar simply cannot get around the fact it does not presently own or control all the land necessary to effectuate its drainage plan. Although Pal-Mar may have the statutory authority to acquire land for this purpose, this does not insure that its authority will not be challenged. Section 373.403(6) uses the wording, “owned or controlled by the user”, not “intended to be owned or controlled by the user”. Hence, in light of the strict construction against a party claiming a statutory exemption, the instant order declaring Pal-Mar’s drainage project not a closed system is affirmed. See Robinson v. Fix, 113 Fla. 151, 151 So. 512 (1933); Coe v. Broward County, 327 So.2d 69 (Fla. 4th DCA 1976) affirmed 341 So.2d 762 (Fla.1976).

Finding appellant’s other arguments to be without merit, we affirm.

LETTS, C. J., and LEONARD RIVKIND, Associate Judge, concur.


author: ERVIN, Judge.

text:
    The BEACHES HOSPITAL and Hartford Accident & Indemnity Company, Appellants, v. William J. LEE, M. D., Appellee.
    No. PP-97.
    District Court of Appeal of Florida, First District.
    May 30, 1980.

      Charles Cook Howell, Jr. of Howell & Howell, Jacksonville Beach, for appellants.
    V. James Facciolo of Searcy, Smith, Fac-ciolo & Kirby, Jacksonville, for appellee.
   ERVIN, Judge.

Marie Collins filed a medical malpractice claim against both the appellee, Dr. Lee, and the appellant hospital seeking damages resulting from both parties’ alleged negligence in leaving a surgical sponge within her abdomen following a 1976 hernia operation. Collins withdrew her mediation claim against Dr. Lee, after which the hospital withdrew its answer and refused to mediate. Collins sued the hospital in circuit court, and it filed a third-party claim for contribution against Dr. Lee. After Collins and the hospital settled for $19,000, the case went to trial on the hospital’s claim for contribution. The jury returned a verdict for Dr. Lee, and the hospital appeals. We affirm.

The hospital first objects to two jury instructions: one which instructed the jury on proximate cause, and another which instructed that the hospital had the burden of proof on the issues. The instruction on proximate causation was proper because it was supported by the evidence. If the jury found the doctor negligent in failing to remove the sponge, it could also have found that the negligence of the nurses was, under the circumstances, the proximate cause of the patient’s injury since the evidence supported findings that they had failed to correctly count the sponges and that the doctor did not realize one sponge had not been removed.

As to appellant’s argument that the court erred in giving the general instruction placing the burden on the hospital of establishing the greater weight of the evidence, we also find no error. Conceding that, generally, a plaintiff seeking contribution as a joint tortfeasor does have the burden of proving the defendant joint tort-feasor’s negligence in a suit for contribution, the hospital argues that here, the standard instruction should have been omitted because (1) the hospital did not have the burden of proof in its suit for contribution when the patient’s damages were caused by a sponge left in a patient after an operation; and (2) the general instruction conflicted with the special instruction given, that the burden of showing due care is on a surgeon who leaves a sponge in the abdomen of a patient. The latter instruction followed the rule stated in Smith v. Zeagler, 157 So. 328, 116 Fla. 628 (1934), where the patient sued the defendant doctor for negligently failing to remove a sponge following abdominal surgery. After holding that it was negligence per se for the surgeon to leave the sponge inside the patient’s abdomen, the court continued:

The burden of showing due care is upon a surgeon who leaves a sponge inclosed in a wound after the performance of an operation, and he cannot relieve himself from liability unless the sponge was so concealed that reasonable care on his part would not have disclosed it, and conditions were such that, in his professional judgment, a special exploration for the sponge would have endangered the safety of the patient. 157 So. at 329.

We disagree with appellant that the Zeagler rule, holding that such evidence is negligence per se, places the burden on the surgeon of establishing the greater weight of the evidence, thereby absolving the hospital from that responsibility. The presence of a sponge does not shift the burden of proof to the doctor. This conclusion becomes evident after examining cases interpreting statutes which, upon their violation, expose their violators to the standard of negligence per se. Once a violation is proven, actionable negligence does not automatically follow. See deJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198, 201 (Fla.1973). In order to prevail, the plaintiff must meet three conditions: He must show (1) that he is of the class the statute was intended to protect, (2) that he suffered an injury of the type the statute was designed to prevent, and (3) that the violation of the statute was the proximate cause of his injury. Id.

In the present case, while the injured patient arguably may have presented evidence pre-trial complying with the first two requirements, a jury question would still have remained whether her injuries were proximately caused by the negligence of the doctor, the nurses, or both. Although the duties of an assisting nurse involving professional skill are generally regarded as controlled by the surgeon, when the nurse’s services are simply ministerial in character, she is not regarded as the doctor’s borrowed servant, but rather as the servant of the hospital, so that the latter may be vicariously liable to the 'patient. See Buzan v. Mercy Hospital, Inc., 203 So.2d 11 (Fla.3d DCA 1967). Additionally, when an action is brought against both doctor and hospital, on facts showing the discovery of a foreign object inside a patient, the question of whose negligence proximately caused the injury is one for trial determination. Id. at 12. See also Wilson v. Lee Memorial Hospital, 65 So.2d 40, 42 (Fla.1953); Danks v. Maher, 177 So.2d 412, 417-18 (La.App.1965). Moreover, had the action only been brought against the doctor by the injured patient, the doctor simply by pleading a general denial — and not by alleging an affirmative defense that the injury was caused by the negligence of another health care provider not a party to the suit — could have put at issue the question of proximate cause, an essential requirement of plaintiff’s cause of action. See Clement v. Rousselle Corp., 372 So.2d 1156, 1158 (Fla.1st DCA 1979); Isaacs v. Powell, 267 So.2d 864 (Fla.2d DCA 1962); Alves v. Adler Built Industries, Inc., 366 So.2d 802 (Fla.3d DCA 1979).

When a patient sues both a surgeon and a hospital or other health care provider for injuries resulting from the negligent abandonment of a sponge within an enclosed wound, we consider it would be inappropriate for a trial judge to grant a request for the Zeagler instruction since a jury could find that the hospital’s attendants were solely responsible for the patient’s injuries. We think, then, the instruction is applicable only to an action between a patient and a surgeon, and has no materiality when another health care provider is involved. Even when the instruction is appropriate, however, because the burden of establishing the greater weight of the evidence remains with the plaintiff, the general instruction on the burden of proof should still be given.

It is also inappropriate to give the special instruction in a contribution claim between two tortfeasors. We consider the Zeagler rule was designed to benefit a member of a class — the injured patient — from the particular injury. When facts are presented showing the presence of a sponge inside the patient, the rule excuses the formerly anesthetized patient from offering direct evidence concerning which health care provider was responsible for his injury. Doctors and other health care providers, potentially jointly liable to the patient, suffer no similar disability when seeking contribution among themselves, and may offer testimony of events actually witnessed during the operation. A nurse could conceivably testify that it was in fact the doctor who controlled or supervised the sponge count and that she simply followed his directions. The doctor, on the other hand, might state the opposite, testifying that he relied upon the nurse’s count for its accuracy. We see no logical reason for extending the Zeagler rule beyond the specific facts involved in that case, and so we conclude that when one tortfeasor seeks contribution from the other, neither the doctor nor any other health care provider may benefit from it.

The appellant’s argument in its third point, that the trial judge erred in not permitting counsel to read portions of a deposition to the jury in closing argument, and that the trial judge further erred in admonishing counsel not to read from the deposition after the issue had been resolved out of the presence of the jury, is also without merit. We have read the record, and it is clear counsel from the hospital were not embarrassed before the jury. Directions to counsel during closing arguments are within the broad discretion of the trial judge and will not be reversed on appeal absent some showing of abuse of discretion.

The judgment below is affirmed.

MILLS, C. J., and SHIVERS, J., concur.

      . The instruction followed Fla.Std. Jury Instr. (Civ.) 5.1:
      In order to be regarded as a legal cause of damage, negligence need not be the only cause. Negligence may be a legal cause of damage, even though it operates in combination with the act of another if the negligence contributes substantially to producing such damage.

      . The court gave both standard instruction MI-1.1, stating:
      If the greater weight of the evidence does not support the claim of the Beaches Hospital v. William J. Lee, M. D., then your verdict should be for William J. Lee, M. D. However, if the greater weight of the evidence does support the claim of the Beaches Hospital, your verdict should be for the Beaches Hospital.
      as well as appellant’s special instruction, advising:
      The burden of showing due care is upon a surgeon who leaves a sponge enclosed in the abdomen of a patient; and he cannot relieve himself from liability unless the sponge was so concealed that reasonable care on his part would not have disclosed it.

      . The evidence was that the operation on Mrs. Collins was complicated by her obesity, which made it harder to locate anything within her abdominal cavity, and by multiple adhesions in her abdominal cavity which had to be dissected, resulting in heavy bleeding. Twenty to thirty laparotomy sponges were placed in the cavity for various reasons, and the testimony was that as such an operation progresses, the sponges change positions, and take on the appearance of human organs as they become soaked with blood.

      . That rule applied to the case here since the operation was performed in January, 1976. On July 1, 1976, Section 768.45(1), Florida Statutes (1977), became effective, and provides — unlike Zeagler — that the discovery of the presence of a sponge is only prima facie evidence of the health care provider’s negligence. Health care providers are defined in Section 768.50(2)(b) as hospitals, physicians, osteopaths, etc.

      . Assuming the action commenced before the effective date of Section 768.45(1), otherwise the statute’s provisions control.


author: LARRY G. SMITH, Judge.

text:
    Daniel J. FAULS, Appellant, v. SHERIFF OF LEON COUNTY, Florida, Appellee.
    No. OO-229.
    District Court of Appeal of Florida, First District.
    June 2, 1980.
    Joseph P. Mawhinney, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   LARRY G. SMITH, Judge.

This appeal presents a single question for review: Is appellant entitled to be discharged from custody because the rendition warrant upon which he was being held for extradition to the State of Georgia was not physically filed or introduced into evidence in the habeas corpus proceedings in the court below? We answer this question in the negative, and affirm the ruling of the trial court.

The grounds for appellant’s habeas corpus petition were that petitioner was not a fugitive from justice, not the person named in the extradition request, and the requisition papers were improper on their face. After a hearing, the trial court entered a written order which is before this court finding, among other things:

1. Unrefuted testimony shows that the petitioner present before this court is one and the same as the defendant who is the subject of the Florida Governor’s Warrant of extradition, and
2. Unrefuted testimony shows that the petitioner was bodily present in the demanding state at the time the crime was committed and thereafter departed from that state in the meaning of State v. Cox, 306 So.2d 156 (Fla. 2nd DCA 1974), and therefore is a fugitive from justice, and
3. An authenticated copy of the indictment of the court in Georgia substantially charged petitioner with having committed a crime under the law of that state and a copy of the indictment was properly authenticated by the executive authority of Georgia making the demand, pursuant to Section 941.03, Florida Statutes.

The appellant does not challenge the existence or sufficiency of the rendition warrant. His point simply is that the warrant was not physically marked and admitted into evidence in the habeas corpus proceeding, and therefore, under the authority of Di Piero v. State, 300 So.2d 700 (Fla. 3rd DCA 1974), and Simpson v. Woodham, 332 So.2d 693 (Fla. 1st DCA 1976), this court must determine that the state failed in meeting its burden of proof.

The state counters appellant’s contentions with the argument that appellant has not contended that he objected at the hearing to the state’s failure to introduce the rendition warrant, and is therefore foreclosed from raising this objection for the first time on appeal. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); and State v. Barber, 301 So.2d 7 (Fla.1974). The state further points out that the failure of the appellee to introduce the rendition warrant in the court below in no way prejudiced appellant because appellant did not challenge the existence of the warrant, but challenged whether he was a fugitive from justice, whether he was the person named in the extradition request, and whether the requisition papers were, on their face, improper. The state further maintains that all of these questions were answered by the trial court, based upon evidence presented, and that the order of the trial court shows on its face the existence of the rendition warrant from which the court’s determination of validity was made. Finally, the state acknowledges that Di Piero, and Simpson, as well as Bentzel v. State, 365 So.2d 441 (Fla. 3rd DCA 1978), appear to establish a rule of law supporting appellant’s position. However, the state urges that this court should recede from its decision in Simpson, and adopt the reasoning and conclusion reached by Judge Robert P. Smith, in his dissenting opinion therein.

In his reply brief, appellant responds to what it terms an “anomalous position” by the state, in that “having failed to introduce the evidence and therefore kept it beyond the eyes of this court,” the state “is thus asking this court to presume that the warrant was proper on its face.” Our response is that it is not this court’s responsibility to determine “that the warrant was proper on its face.” That responsibility was and is placed upon the trial judge who heard the proceedings and ruled upon all matters presented to him for ruling. The fallacy of appellant’s position simply is that this is not a trial court, but a court of review. Our review is limited to a determination of whether errors were committed by the trial judge. The ruling of the trial judge in this case, as in all others, comes to us with the presumption of correctness. Appellant does not point out any error in the trial court’s evaluation of the legal sufficiency or effect of the documents, nor of the testimonial evidence presented before him. The existence of the warrant was not attacked in the trial court, nor here, and we are not asked to make any ruling on the sufficiency of the warrant.

We hold that there was no error in the ruling of the court below that appellant’s petition for writ of habeas corpus should be denied, and that he be turned over to authorized agents of the State of Georgia for return to that state. We hereby recede from our opinion and decision in Simpson v. Woodham, supra, to the extent that any statement therein would require a contrary decision in this case.

Under Florida Appellate Rule 9.030, as amended March 27,1980, this court certifies that this decision is in direct conflict with Bentzel v. State, 365 So.2d 441 (Fla. 3rd DCA 1978).

The order is AFFIRMED.

McCORD, ROBERT P. SMITH, Jr., ERVIN, BOOTH, SHIVERS and WENT-WORTH, JJ., concur.

MILLS, C. J., and SHAW, J., dissent.

      . Bentzel relies on Di Piero v. State, supra, and Simpson v. Woodham. We do not certify conflict with Di Piero, because the opinion in that case apparently rests upon a determination that the rendition warrant was not present at the habeas corpus hearing (Di Piero, at 701).


text:
    DEPARTMENT OF TRANSPORTATION and Division of Risk Management, Appellants, v. James F. ALLEN, Appellee.
    No. QQ-397.
    District Court of Appeal of Florida, First District.
    June 2, 1980.
    Jack A. Langdon and R. Dennis Comfort of Jones & Langdon, Gainesville, for appellants.
    Robert O. Stripling, Jr., Gainesville, for appellee.
   LARRY G. SMITH, Judge.

The employer-carrier appeal those portions of a Deputy Commissioner’s order (1) awarding temporary total disability from the date of the accident to the date of the hearing and “continuing until claimant shall reach maximum medical improvement from a psychiatric standpoint,” and (2) ordering the employer-carrier to furnish claimant psychiatric evaluation and/or treatment by Dr. John R. Stiefel, who was not the claimant’s regular treating psychiatrist. We agree with the employer-carrier’s contention that the order continuing temporary total disability benefits in the future was in error, because the claimant had reached psychiatric maximum medical improvement. We further agree that the order changing doctors was erroneous on the present state of the record. We reverse and remand.

Following a compensable accident, the claimant was treated by Dr. Gary Han-kins, a psychiatrist, who diagnosed a condition of hypochondriacal neurosis, a condition that is dominated by preoccupation with the body and fear of presumed disease of various organs. It was his opinion that claimant’s industrial injury aggravated his preexisting psychiatric condition. It is clear from Dr. Hankins’ testimony that the claimant has reached maximum medical psychiatric improvement, contrary to the order of the Deputy Commissioner. In Dr. Hankins’ words, the prognosis for any significant improvement in the claimant’s condition was “as close to zero as you can get.” The Deputy Commissioner therefore erred in failing to find psychiatric maximum medical improvement, and his order continuing temporary total disability benefits in the future was therefore erroneous. We note also that a compensation order containing a similar decretal provision was reversed in Doty Exterminating Company v. Jones, 9 F.C.R. 31, IRC Order 2-2617 (December 6, 1974), because such an order makes the unwarranted assumption that a claimant will not achieve any partial earning capacity before he reaches maximum medical improvement.

As for that portion of the order providing for evaluation and treatment by Dr. Stiefel, we find that order to be improper because there is absent from the record any request for treatment by Dr. Stiefel, and under Section 440.13(1), Florida Statutes, the employer-carrier should be given the opportunity to furnish their own qualified physician, rather than be required to pay for treatment by a doctor neither party requested. However, our ruling does not foreclose a request by either party, for good cause shown, for evaluation or treatment by Dr. Stiefel or any other particular physician.

Those portions of the order appealed are reversed and the cause is remanded for further proceedings consistent with this opinion.

McCORD and WENTWORTH, JJ., concur.


text:
    METROPOLITAN DADE COUNTY BOARD OF COUNTY COMMISSIONERS and Bituminous Casualty Corporation, Appellants, v. Kennon ATKINSON, Metropolitan Dade County and Metropolitan Dade County Self-Insurance Fund, Appellees.
    No. RR-2.
    District Court of Appeal of Florida, First District.
    June 2, 1980.

      Mark L. Zientz of Williams & Zientz, Coral Gables, for appellants.
    Edward Schroll, and Steven Kronenberg of Pyskza, Kessler & Adams, Miami, for appellees.
   ERVIN, Judge.

After considering the record and the parties’ briefs, we consider that a portion of the order below, requiring Bituminous Casualty Corporation to reimburse Metropolitan Dade County Self-Insurance Fund for permanent partial disability payments the latter made to claimant, conflicts with that portion of the order stating the issue relating to claimant's permanent disability was undecided because not requested by claimant.

We agree the issue was not before the judge of industrial claims for decision. Accordingly, paragraph two of the decretal portion of the order is modified by striking the following words: “[N]ot only for the 5% permanent partial disability of the body as a whole rating which was paid to claimant, but also . . . .” The remainder of the order is sustained. We find competent and substantial evidence supporting the findings that the statute of limitations had not expired when the claim for medical benefits was filed, and that the March 4, 1976 accident was not an intervening accident relieving Bituminous from further responsibility for claimant’s medical care.

Affirmed in part, reversed in part.

ROBERT P. SMITH, Jr. and WENT-WORTH, JJ., concur.


text:
    In re ESTATE of Carlos Prio SOCARRAS. Alfredo DURAN, Personal Representative for the Estate of Carlos Prio Socarras, Deceased, Appellant, v. The ROYAL BANK OF CANADA, Appellee.
    No. 79-1535.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.

      Wellisch, Metzger & Leone and Kurt Wellisch, Coral Gables, for appellant.
    Louis A. Sabatino, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

Plaintiff, Alfredo Duran, as personal representative of the Estate of Carlos Prio Socarras, deceased, appeals an order allowing claim and ordering payment.

Carlos Prio Socarras died on April 5,1977 and his estate was opened by the filing of a petition for administration on May 16. Previous thereto, The Royal Bank of Canada on May 5 had filed a caveat pursuant to Fla. R. P. & G. P. 5.260(a) (effective January 1, 1976).

Although letters of administration were issued on June 8, 1977, the clerk of the court failed to notify The Royal Bank, cave-ator, as required by Fla. R. P. & G. P. 5.260(d). Subsequently, The Royal Bank on March 19, 1979, a year and a half after the expiration of the three month period for filing claims, became aware that the estate had been opened and filed its claim and petition for payment. A hearing was held on Royal Bank’s petition for payment of claim at which Alfredo Duran, personal representative of the Estate of Carlos Prio Socarras, objected on the ground that the claim was not timely filed and therefore barred by Section 733.702, Florida Statutes (1977). After hearing argument of counsel the trial court entered an order allowing Royal Bank’s claim and ordering payment on the ground that the nonfeasance or malfeasance of the clerk of the court should not operate to the detriment of the creditor, Royal Bank. Alfredo Duran appeals this order. We affirm.

The decisions in Lord v. Department of Health & Rehabilitative Serv., 296 So.2d 561 (Fla.1st DCA 1974) and Gomez v. Jackson Memorial Hospital, 309 So.2d 564 (Fla.3d DCA 1975) are controlling. We, therefore, agree with the conclusion of the trial court that the failure of the clerk of the court to notify the caveator that the administration had commenced should not inure to the benefit of the estate and operate to the detriment of the creditor. In the case at bar, The Royal Bank, the caveator, did all it was required to do to preserve its right to file a claim against the estate and this claim should not be barred for the failure of the court clerk to follow applicable procedures once a caveat has been filed.

Affirmed.

      . “(a) If any creditor of the estate of a decedent is apprehensive that the estate will be administered without his knowledge, or if any person other than a creditor is apprehensive that an estate may be administered or that a will may be admitted to probate without his knowledge, he may file a caveat with the court.”

      . “(d) If at the time of the filing of any caveat the decedent’s will has been admitted to probate or letters of administration have been issued on such estate, the clerk shall forthwith notify the caveator in writing, advising him of the date of issuance of letters, and the names and addresses of the personal representative of the estate and his attorney. When letters of administration issue after the filing of a caveat by a creditor, the clerk shall forthwith notify such caveator, in writing, advising him of the date of issuance of letters and the names and addresses of the personal representative and his attorney, unless notice has previously been served on such caveator. Copy of any notice required to be given by the clerk herein, together with a certificate of the mailing of the original thereof, shall be filed in the estate proceedings.”


text:
    Russell BUFFALINO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-960.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Rehearing Denied June 24, 1980.
    Stephen F. Bazzano, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal from a judgment of conviction and sentence for contempt of court entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. The judgment of conviction and sentence under review was entered on September 19, 1978; the notice of appeal seeking review of this judgment and sentence was filed on May 2, 1980. On its face, it appeared that we lack jurisdiction to entertain this appeal as the notice was filed long after 30 days had expired from the entry of the judgment of conviction and sentence under review. § 59.081, Fla.Stat. (1979); Fla.R.App.P. 9.140(b)(2). We, accordingly, entered an order directing the appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. The appellant has filed a response which we have carefully considered.

It appears without dispute that on October 10, 1978, the appellant filed a previous notice of appeal in this cause in which he sought review of the same final judgment and sentence for contempt of court which is presently under review. This appeal was subsequently abandoned by the appellant, and was, accordingly, dismissed by this court for failure to prosecute the appeal. Buffalino v. State, 372 So.2d 479 (Fla.3d DCA 1979). The appellant concedes that this dismissal was properly entered and has not sought to reinstate that appeal. Instead, the appellant has filed a second notice of appeal seeking review of the same adjudication and sentence for contempt.

We are compelled to dismiss the present appeal for two reasons. First, the notice of appeal was filed more than 30 days after entry of the judgment of conviction and sentence under review, and, accordingly, we lack jurisdiction to entertain such appeal. § 59.081, Fla.Stat. (1979); Fla.R.App.P. 9.140(b)(2). Secondly, the instant appeal has previously been dismissed for failure to prosecute and no effort has been made by the appellant to reinstate the prior appeal as, indeed, he concedes such appeal was properly dismissed, and, accordingly, this appeal is barred on res judicata, law of the case grounds. 3 Fla.Jur.2d “Appellate Review” § 415 (1978).

Appeal dismissed.