author: HERSEY, Judge.

text:
    Frederick HENSEL, Appellant, v. Samuel C. AURILIO, Appellee.
    No. 81-969.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Rehearing Denied Aug. 24, 1982.

      Ben L. Bryan, Jr., Fort Pierce, for appellant.
    Douglas E. Gonano of McDonald, Gonano & Associates, P. A., Fort Pierce, for appel-lee.
   HERSEY, Judge.

Appeal is taken from a mandatory injunction requiring appellant to remove portions of newly constructed buildings which encroach upon an easement/right-of-way to land owned by appellee. By way of an equitable remedy, and as an alternative to removal of the buildings, the final judgment permits appellant at his own expense to construct a roadway at another location on his property and to bear one-half the cost of its maintenance, apparently in perpetuity, for appellee’s use and benefit.

Appellant initially owned a strip of land 200 feet in the north-south dimension by 1350 feet from east to west. (The dimensions we use are approximate.) The strip was eventually divided into three lots having dimensions of 200' X 450' and the easternmost lot was further subdivided into two lots, each having dimensions of 100' X 450'. The lots are graphically depicted and lettered for convenience of reference, in this manner:

Appellant sold lots B, C and D to appel-lee. Thereafter the parties entered into a written contract which provided that lot B was to be repurchased by appellant. As originally drawn, that contract provided for an easement to be retained by appellee over the south 15 feet of the lot. At appellant’s insistence that provision was deleted prior to execution of the contract.

On the day of the closing, however, appel-lee prepared an easement deed and placed it of public record, thereby accomplishing by unilateral action what his preliminary negotiations had been unable to accomplish. Thereafter, the purchase and sale of lot B was consummated, with appellee neglecting to mention at the closing that he had attended to his easement problem. The warranty deed was subsequently recorded.

Some two years later appellant commenced the construction of two buildings on lot B which encroached upon the easement. Appellee promptly advised appellant of his claim to a right-of-way by virtue of the easement deed. Construction proceeded unabated, prompting this suit for injunctive and other relief. After trial the lower tribunal entered a final judgment, holding, in essence, that while appellee’s act of surreptitiously creating the easement was “sneaky and deceitful,” the easement was nonetheless legal, valid and enforceable.

An easement is a right given to or retained by the owner of land (the dominant estate) to use, for some purpose or several purposes, an interest in other land (the servient estate).

An easement has been defined to be “a privilege without profit, which the owner of one tenement has a right to enjoy in respect to that tenement in or over the tenement of another person, whereof the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former.” Jones on Easements, § 1; 9 R.C.L. 735, par. 2.

Burdine v. Sewell, 92 Fla. 375, 109 So. 648, 652 (Fla.1926).

Basically, an easement is brought into existence by (a) an express grant or reservation, (b) by prescription (a doctrine related to adverse possession), or (c) by implication because of necessity, either by virtue of the Common Law, or statute: § 704.01, Fla.Stat.

These elementary rules apply generally whether the easement is appurtenant or in gross and whether it is affirmative or negative (with minor exceptions immaterial here).

There is no support in the record of this case for the imposition of either an express or an implied easement. Appellee could not, while he was the owner of both the dominant and servient estates, carve out an easement by grant to himself. It is black letter law that one cannot have an easement in his own land. Winthrop v. Wadsworth, 42 So.2d 541 (Fla.1949). See, generally, 20 Fla.Jur.2d, Easements § 1. Further, an express easement was not created by appellee’s recordation even though the deed to lot B recited that it was subject to easements of record. Recording has no particular efficacy as between seller and purchaser or grantee and grantor since the purpose of recording statutes is to give notice to third persons of the status of title and related factors. Moyer v. Clark, 72 So.2d 905 (Fla.1954); Fong v. Batton, 214 So.2d 649 (Fla. 3d DCA 1968). Likewise, the doctrine of merger will not provide a basis for an express grant or reservation of an easement since the errant easement deed was conceived, executed and recorded prior to closing and thus was not performed or satisfied by execution and delivery of the deed to lot B. Lastly, there is no competent substantial evidence to support appellee’s contention that an easement was created by oral agreement with appellant. The purchase and sale agreement, before execution, provided for an easement. At appellant’s insistence this requirement was deleted from the contract by striking out and initialing. It stretches credibility to its outer limits to suggest that there was a contemporaneous or immediately post-execution oral agreement for such an easement.

An easement by prescription is not contemplated by the pleadings nor supported by the evidence. Such an easement has a gestation period of twenty years, clearly not approached by the time frames established by the evidence here. Florida Power Corporation v. McNeely, 125 So.2d 311 (Fla. 2d DCA 1960), cert. den., 138 So.2d 341 (Fla.1961).

There is similarly no basis for imposing an easement of necessity. The record discloses that at the time of conveyance of lot B to appellant title to both lots C and D was in appellee and ingress and egress was available in the form of existing roadways known as South Seventh Street and Francis Lane. Appellee argues that these roadways were insufficient to support the type of vehicles which were used to service the premises and that the vehicles constituted a traffic hazard to residents on or near Francis Lane. However, an easement of necessity, provided other conditions exist permitting its creation, may be imposed only “where there is no other reasonable and practicable” means of ingress and egress. § 704.01(1), Fla.Stat. (1981).

Even if we were to find justification in the record for the trial court’s finding that an easement existed, we could not condone its enforcement. This complaint sought equitable relief. Indeed, the final judgment provided the kind of relief available only in equity. Appellee recorded his easement deed and approximately two hours later delivered to appellant a warranty deed to the property which made no reference to the easement, nor did appellee disclose to appellant his activities of the morning. He did in fact execute an affidavit which tended to negate the existence of any easement.

We therefore conclude that application of the doctrine of equitable estoppel would and here should preclude appellee from equitable relief (enforcement of an easement). As we said in North v. Culmer, 193 So.2d 701, 704 (Fla. 4th DCA 1967), “[f]rom the earliest cases the Florida Supreme Court has applied the doctrine of estoppel as a result of silence when common honesty and fair dealing demanded that a person es-topped should have spoken.” (Overruled on other grounds in Rinker Materials Corp. v. Palmer First National Bank & Trust Co. of Sarasota, 361 So.2d 156 (Fla.1978).) In Doyle v. Tutan, 110 So.2d 42, 46-47 (Fla. 3d DCA 1959), application of the doctrine was explained as it applies to real property:

Equitable estoppel, so far as it relates to the trial of title to land, is a doctrine by which a party is prevented from setting up his legal title because he has through his acts, words, or silence led another to take a position in which the assertion of the legal title would be contrary to equity and good conscience.
If one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person.... Coram v. Palmer, 63 Fla. 116, 58 So. 721, 722. It is also applied to prevent one who, with knowledge, accepts the proceeds of sale of his property or of property on which he has a lien or in which he is otherwise interested from disputing the validity of such sale or the title of the purchaser; .. . [Emphasis supplied.] 19 AmJur., Estoppel, § 64.

We hold that appellee was estopped from enjoying the benefits of his self-created easement.

In addition, we equate “sneaky and deceitful” with “unclean hands”; therefore, appellee’s efforts to enforce his easement in equity should have been frustrated by application of the clean hands doctrine. “Equity will stay its hand where a party is guilty of conduct condemned by honest and reasonable men. Unscrupulous practices, overreaching, concealment, trickery or other unconscientous conduct are sufficient to bar relief.” 22 Fla.Jur.2d, Equity, § 50.

In conclusion, a) the recorded “Easement” was not a legally effective document; b) neither agreement, prescription nor necessity entitle appellee to an easement; and c) appellee would be precluded in any event from equitable relief by application of the doctrines of clean hands and equitable estoppel.

Elimination of the easement breathes life back into the counterclaims filed by appellant and will require the trial court’s attention on remand.

REVERSED and REMANDED.

BERANEK and GLICKSTEIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HORN & HARDART, FLORIDA, INC., Petitioner, v. John A. DIETZ, Respondent.
    No. 82-876.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Rehearing Denied Aug. 31, 1982.
    G. Michael Keenan of Ruden, Barnett, McClosky, Schuster & Russell, Fort Lauder-dale, for petitioner.
    Roy W. Jordan, Jr., West Palm Beach, for respondent.
   PER CURIAM.

This is a petition for common law certio-rari. We conclude that a departure from the essential requirements of law has been demonstrated, grant the writ, and quash the order below. This case began in County Court and after service upon the defendant, a default occurred due to defense counsel’s failure to appear at a preliminary hearing. The County Court vacated the default finding excusable neglect and a meritorious defense. The Circuit Court reversed the County Court concluding that excusable neglect was not demonstrated as a matter of law. The matters presented to the trial court were essentially factual in nature, and it was up to the trial court (the County Court Judge) to make a determination of excusable neglect. This ruling is a discretionary one, and we conclude that the Circuit Court sitting in its appellate capacity erroneously substituted its judgment for that of the factual finder. The Circuit Court thus exceeded its scope of review.

Certiorari is hereby granted, the order of the Circuit Court quashed, and the matter remanded to the County Court for further proceedings.

BERANEK and DELL, JJ., concur.

ANSTEAD, J., dissents without opinion.


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

text:
    Joe Jack CALDWELL, Sr. and Yvonne B. Caldwell, Appellants, v. ALLSTATE INSURANCE CO., Appellee.
    No. AG-420.
    District Court of Appeal of Florida, First District.
    July 14, 1982.
    Rehearing Denied Aug. 31, 1982.
    David M. Wiesenfeld of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellants.
    Carl Scott Schuler, Law Office of S. Thompson Tygart, Jr., P. A., Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The trial court entered summary judgment for Allstate in this declaratory judgment proceeding, finding that Allstate is not liable on an automobile insurance policy issued to named insured Lee Watts to cover the liability of Watts’ son James, who negligently operated an Oldsmobile titled in James’ name into collision with appellants. Allstate’s “plain English” policy provided that it

protects a person insured from claims for accidents arising out of the ... use . . . of the a uto we insure, (emphasis in the original)

The policy defines “Persons Insured” to include “[a]ny resident relative of your household using a four wheel private passenger . . . auto ” that was a “non-owned auto.” We construe the term “non-owned auto” to be any automobile not owned by named insured Lee Watts. Since James was a resident of his father’s household and was driving an auto not owned by the named insured, James was a person insured.

To establish coverage for James’ liability under Allstate’s policy, appellants must also demonstrate that the Oldsmobile James negligently operated into collision with appellants was among the “Covered Autos” described in the policy. The covered autos include
(4) A non-owned a uto used by you or a resident relative with the permission of the owner. This a uto must not be available or furnished for the regular use of a person insured.

The Oldsmobile was not a covered auto under this clause because it was available or furnished for the regular use of James, a person insured. But the covered autos definition also includes

(1) Any a uto described on the declarations page and the four wheel private passenger or utility auto you replace it with.

“You” is defined as the named policyholder and the policyholder’s resident spouse. '

Four automobiles were described on the declarations page. One was a Mustang jointly titled in the names of Lee and James. James, this abbreviated record shows, traded in the Mustang for the Oldsmobile he later operated negligently. Lee as joint titleholder joined James in endorsing the Mustang’s title certificate, or at least the parties so assume, but James evidently selected the Oldsmobile, he handled the purchase transaction and, as we have said, he took title in his name alone. We have no further details of the transaction beyond Lee’s testimony that James purchased the Oldsmobile “to serve the same purpose as the Mustang,” which simjlarly was not elaborated in the record.

Under conventional or “nonreadable” policies, a replacement automobile, in order to enjoy replacement coverage bought in the existing policy declaring coverage for an automobile later “replaced,” must be titled in the name of the named insured, here Lee, or his resident spouse. E.g., Newbern Distributing Company v. Canal Insurance Company, 124 So.2d 721, 723, n. 1 (Fla. 2d DCA 1960); 12 Couch on Insurance 2d § 45:187 (rev. ed. 1981). But this Allstate “plain English” policy does not in terms require that element to successfully “replace” a declared automobile given in trade for another automobile acquired for use by a family resident who otherwise qualifies as an insured. By way of contrast, the Allstate policy covers an additional automobile only if “you,” the named insured or resident spouse, “acquire ownership of [it] during the premium period.” There being no compelling reason not to do so, and no policy terms that prevent it, we construe the somewhat different replacement language favorably for coverage, and we hold that titling a “replacement” vehicle in the named insured is not an essential indication of its replacement status under Allstate’s policy. It is enough if “you [the named insured or resident spouse] replace,” in some real sense capable of proof, the old automobile with the new. Here that showing was made. The old Mustang, listed on the declarations page of the policy, was titled in son James’ name as well as in the named insured, Lee; so the acquisition of a new Oldsmobile, titled in James, was to that extent a “replacement.” The Oldsmobile was acquired for the primary use, apparently, of the same family member who primarily used the Mustang; in that sense, too, the Oldsmobile was a “replacement.” Finally, named insured Lee participated in replacing the Mustang with the Oldsmobile, by relinquishing his share of title in the Mustang, the trade-in for the Oldsmobile.

Thus, for appropriate premiums, all the resident family automobiles were insured by Allstate before the Mustang was traded, and for the same premiums all the resident family automobiles were insured by Allstate afterwards. In these circumstances, nothing in these particular policy provisions excludes coverage for the Oldsmobile. We do not pass on other possible exclusions or limitations.

REVERSED.

ERVIN and SHAW, JJ., concur.


text:
    Martha Jean HEIST, as personal representative of the Estate of Floyd Douglas Heist, Sr., Appellant, v. LOCK & GUNSMITH, INC. and Travelers’ Insurance Co., Appellees.
    No. AJ-24.
    District Court of Appeal of Florida, First District.
    July 14, 1982.
    Rehearing Denied Aug. 31, 1982.

      T. David Mann and Thomas C. Staples of Mann, Lang & Staples, Pensacola, for appellant.
    A. G. Condon, Jr., and Philip A. Bates of Emmanuel, Sheppard & Condon, Pensacola, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

We affirm the trial court’s order dismissing appellant’s third amended complaint, with prejudice, for failure to state a cause of action arising out of the defendant gun dealer’s sale of a .38 caliber pistol to one Bullard in circumstances that are alleged to have placed the dealer on notice that the real purchaser was Bullard’s companion in the store, Fitzpatrick. Fitzpatrick used the gun 10 days later in a crime and, while doing so, shot plaintiff’s decedent. While the circumstances alleged in the complaint may well have put the dealer on notice that Fitzpatrick was the true buyer, so placing upon the dealer an obligation to require identity proof from Fitzpatrick under federal law, the chain of foreseeable circumstances ends there. The complaint insufficiently explicates its conclusory allegations that the circumstances put the gun dealer on notice that both Bullard and Fitzpatrick were persons of “unsound mind” to whom a gun sale is prohibited by section 790.17, Florida Statutes (1979), or that they were otherwise dangerous. Cf. Angell v. F. Avanzini Lumber Company, 363 So.2d 571 (Fla. 2d DCA 1978).

It is not clear whether the trial court’s observations about the vagueness of the statutory term “unsound mind” amounted to a declaration that the statute is unconstitutionally vague; since we find it unnecessary to reach that question, we construe the trial court’s observations as observations only, equally unnecessary to and not a part of the decision. •

AFFIRMED.

ERVIN and SHAW, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Marshall J. BRUMER, M.D., Appellant, v. Sheldon J. SCHLESINGER, Appellee.
    No. 79-2497.
    District Court of Appeal of Florida, Fourth District.
    July 14, 1982.
    Rehearing Denied Aug. 23, 1982.
    Richard A. Purdy of Shailer & Purdy, Fort Lauderdale, for appellant.

      Shelley H. Leinicke of Wicker, Smith, Blomqvist, Davant, Tutan, O’Hara & McCoy, Miami, for appellee.
   PER CURIAM.

AFFIRMED.

HERSEY and HURLEY, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

This is an appeal from the dismissal of an action for malicious prosecution predicated on the alleged improper filing of a medical malpractice mediation claim against the appellant. Under the statutory scheme, subsequently invalidated in Aldana v. Holub, 381 So.2d 231 (Fla.1980), it was necessary to initiate a mediation proceeding in compliance with Section 768.44, Florida Statutes (1977), prior to bringing suit for medical malpractice. The recommendation of the mediation panel was then admissible in evidence in the malpractice action. I would hold that the mediation proceeding was sufficiently quasi-judicial in nature and the risk of harm to appellant sufficiently great to constitute a proceeding upon which a malicious prosecution claim could be predicated. Toft v. Ketchum, 18 N.J. 230, 113 A.2d 671 (1955); Nassif v. Goodman, 203 N.C. 451, 166 S.E. 308 (1932); Lueptow v. Schraeder, 226 Wis. 437, 277 N.W. 124 (1938); Melvin v. Pence, 130 F.2d 423 (D.C.Ct.App.1942); Fisher v. Payne, 113 So. 378 (Fla.1927); Oliver v. Haspil, 152 So.2d 758 (Fla.3d DCA 1963).


author: GLICKSTEIN, Judge. ANSTEAD, Judge,

text:
    C. H. O’DONNELL, Appellant, v. BROWARD COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 80-1981.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    C. H. O’Donnell, pro se.
    Harry A. Stewart, Gen. Counsel for Bro-ward County, and Larry E. Johnson, Asst. Gen. Counsel for Broward County, Fort Lauderdale, for appellee.
   GLICKSTEIN, Judge.

The trial court in this cause entered a “Summary Judgment” in favor of defendant county. Notwithstanding the caption, the body of the judgment establishes it to be final and reviewable by plenary appeal. We affirm.

Appellant filed all his pleadings in the trial court and here pro se. They, together with an affidavit in the record, establish that he is an airline pilot working out of Fort Lauderdale-Hollywood International Airport. The northwest corner of the employees’ parking lot mostly is reserved for Federal Aviation Administration employees. Appellant parked his automobile there because most of the time ten or twelve of these parking spaces remained unused and he was required to walk a longer distance than was necessary with a flight kit and suitcase in inclement weather.

Appellant claims his automobile was removed by a towing company at Broward County Transportation Department’s request and his automobile sustained physical damages causing him $115.29 in out of pocket expenses. He first sued the towing company in the County Court. His statement of claim was dismissed and apparently he took no appeal therefrom. He then brought this action praying for compensatory and punitive damages in the sums of $115.29 and $75,000, respectively. He also sought the adjudication of sections 2-3 and 23-20.4 of the Code of Ordinances of Broward County as discriminatory, therefore unconstitutional as applied to him, and an injunction against the enforcement of these ordinances.

The county, in its motion to dismiss the amended complaint, maintained appellant had failed to allege in his claim for damages compliance with section 768.28(6), Florida Statutes (1977), which says:

An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.

The county repeated the foregoing in its affirmative defenses.

Instead of complying with section 768.-28(6), appellant filed a reply in which he merely alleged the county had not raised this point in the motion to dismiss his original complaint. The county again raised this point in its motion for summary judgment and, while appellant did not ignore it, he asserted the statute was not applicable to his claim. Of course, it was; this is borne out by the fact that the sole issue raised on appeal by appellant was whether he could recover damages as a result of torts committed against him by the county.

Appellant’s cause of action arose on April 14, 1978. He had three years within which to transmit his claim for damages in writing pursuant to section 768.28(6). Because the time for performance of the mandatory condition has elapsed, we have no choice but to affirm. See Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla. 3d DCA 1979).

BERANEK, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

I agree that the trial court’s judgment should be affirmed because I believe the court properly concluded that the county did not violate any of appellant’s rights.

      . The body of the judgment recites that it is “ADJUDGED that Plaintiff takes nothing by this action and Defendant goes hence without day and recover from Plaintiff its costs to be hereinafter taxed.”

      . The record reflects paragraph thirteen of the grant agreement then in force between the Board of County Commissioners and the FAA provides:
      The parties hereto recognize that a continuing need exists for parking space for Government owned and controlled automotive equipment used or assigned for use in serving FAA facilities and equipment on and in the vicinity of the airport. It is agreed by the parties hereto that parking spaces for such automotive equipment are presently being provided without charge and that such arrangement will continue in effect until such time as the parties may reach a new and written agreement in such matters.
      The parties hereto further recognize the need for adequate parking space for motor vehicles used by FAA employees in providing them transportation to their place of employment and assigned duty stations on the airport. It is fully understood by and between the parties hereto that the Sponsor has made adequate parking space available to the FAA employees and that such parking space will continue to be made available to such FAA employees on terms that are as favorable as those provided to the Sponsor’s employees and the employees of others having duty stations on the airport. It is agreed that such arrangement will continue in effect until the parties have reached a new and written agreement concerning such matters.

      . Section 2-3 provides:
      Parking of vehicles at certain airports. Parking spaces and drives at the Fort Lauderdale-Hollywood International Airport . .. shall be designated by the board of county commissioners and plainly marked by appropriate signs. All vehicles are prohibited from parking in any area not so designated and marked. (Res. of 9-30-69, § 1).

      .Section 23-20.4 provides:
      Restricted parking zone.
      (a) No person shall stop, stand or park a vehicle for any purpose or length of time in any restricted parking zone other than for the purpose to which parking in such zone is restricted except that a driver of a passenger vehicle may stop temporarily in such zone for the purpose of and while actually engaged in loading or unloading of passengers when such stopping does not interfere with any vehicle which is waiting to enter or about to enter the zone for the purpose of parking in accordance with the purpose to which parking is restricted.
      (b) When official signs are erected, or notices are otherwise displayed, designating a parking zone, area, or space for restricting parking for authorized vehicles only, no person shall park an unauthorized vehicle in violation of such displayed notices or erected signs. By the word “authorized,” it is meant the vehicle is of the class or type given authorization by the director of the department of transportation or that it bears a decal or!other emblem authorized by the director of the department of transportation.
      (c) Vehicles parked in violation of this section shall be subject to removal at the owner’s expense, as provided in section 23-20.-15(b), when removal of said vehicle is authorized by a law enforcement officer. (Ord. No. 77-14, § 10, 3-15-77).

      . Appellant’s claim for punitive damages was properly stricken by the trial court pursuant to section 768.28(5), Florida Statutes (1977), which provides, in part:
      The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment.
      Appellant raises for the first time on appeal, and thus too late for consideration, the proposition that the threshold question for this court is whether a municipal corporation can be held liable under the Civil Rights Statutes for torts committed against a private individual. 42 U.S.C. § 1983 et seq. Appellant’s amended complaint makes no mention of these statutes. His sole prayer for compensatory damages was for the $115.29. His initial brief, moreover, does no more than review the law of immunity of “municipal corporations,” based on the expressed assumption that the trial court’s entry of summary judgment must have been an application of “one of the three standards of immunity.”

      . Although appellee’s brief gratuitously raises a substantial number of matters never raised by appellant in his initial brief, appellant insists in his reply thereto that his entitlement to relief is based upon tortious acts of the county. That being so, his position in the trial court that section 768.28 does not apply to his claim has been self-defeating. The section applies to torts and only to torts. As for the constitutional issues raised by appellant in his amended complaint, his briefs are as silent upon them as was the summary judgment being appealed. Even when given the opportunity to reply after the county gratuitously argued in Point VI of its answer brief that appellee could regulate parking under its police power, appellant simply replied that the county is liable for its torts.


text:
    Donald L. HANCOCK, Appellant/Cross-Appellee, v. Jacquelyn Y. HANCOCK, Appellee/Cross-Appellant.
    No. 81-1476.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Rehearing Denied Aug. 24, 1982.
    Errol S. Willes, Fort Pierce, for appellant/cross-appellee. Charles A. Sullivan, Jr., Vero Beach, for appellee/cross-appellant.
   OWEN, WILLIAM C., Jr. (Retired) Associate Judge.

When the Hancocks’ marriage was dissolved, the judgment incorporated a written property settlement agreement. Ten months later, and pursuant to Rulé 1.540 Florida Rules of Civil Procedure, Mr. Hancock filed a motion to vacate the judgment alleging that the property settlement agreement had been procured by the wife’s fraud, misrepresentation or other misconduct. The former wife countered with a motion for a judgment for amounts then in default, together with attorneys fees. The court’s order on those motions denied Mr. Hancock’s motion to vacate and granted the former wife’s requested relief except for a portion of her attorney’s fees. Mr. Hancock appeals and the former wife cross-appeals.

The court denied the motion to vacate on the finding that the evidence was insufficient to support the allegations of the motion. Although appellant points to record evidence which would tend to support the allegations of the motion to vacate, we remind that the determination of the sufficiency of that evidence was properly a matter for the trial court. Appellant has not shown that determination to have been in error.

In awarding the wife an attorney’s fee, the court determined that a reasonable fee for the wife’s attorney was $1,000 but ordered that this amount be borne equally by the parties. The property settlement agreement, the provisions of which the court had incorporated into the final judgment, expressly provided that in the event of any default the party committing such default would be responsible for any attorney’s fees incurred as a result of an action for enforcement of the judgment. Since it was Mr. Hancock whose default necessitated the former wife’s action for enforcement of the judgment, and since the court has determined that the sum of $1,000 was a reasonable fee for the wife’s attorneys, the full amount of the fees should be assessed against the defaulting husband.

That part of the order assessing the wife’s attorneys fees against the husband is modified in accordance with this opinion. As modified, the order is affirmed.

ANSTEAD and HERSEY, JJ., concur.


author: PER CURIAM. HURLEY, Judge,

text:
    William Ray BEDINGFIELD, Appellant, v. Sandra Louise BEDINGFIELD, Appellee.
    No. 81-1842.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Rehearing Denied Sept. 3, 1982.

      Stephen L. Thompson of Foster & Mack-ey, Palm Beach, for appellant.
    No briefs filed for appellee.

      . Appellee, through counsel, filed a motion to dismiss, but did not favor us with further assistance.

   PER CURIAM.

This case involves the denial of motions to dismiss or stay divorce and child custody proceedings. We conclude that the trial court erred by refusing to stay the proceedings pending the resolution of a parallel action in Georgia.

William and Sandra Bedingfield were married and lived their entire married lives in Georgia. They had two children. Difficulties developed and the wife filed for divorce in Georgia. A Georgia trial court conducted a hearing on the issue of temporary child custody and made an oral ruling giving the husband liberal visitation rights. Before the court could enter its written order, however, the wife filed a voluntary dismissal and fled the state, taking the children with her.

The husband filed a motion with the Georgia court to set aside the wife’s dismissal and confirm his visitation rights. The court granted this motion and entered an order which embodied its earlier ruling. The wife appealed the entry of this order, but her appeal was dismissed. The husband filed a second divorce action while the wife’s initial action was pending. This was dismissed but upon appeal the Georgia Supreme Court held that the husband should be granted leave to file a counterpetition for divorce, child custody, support, and alimony in the original action.

Sometime later, the husband located his wife and children in Florida. He filed a pleading in the Circuit Court for the Fifteenth Judicial Circuit which was styled, “Petition for Enforcement of Foreign Orders, Return of Children to Home State and Other Relief.” The wife responded by filing an answer and counterpetition for divorce, child custody, child support, alimony, and attorney’s fees. The husband, citing the Uniform Child Custody Jurisdiction Act, Section 61.1302, et seq., Florida Statutes (1981) (hereinafter the Act), -moved to dismiss or stay the wife’s eounterpetition. The trial court denied the motions and this appeal ensued.

Before considering the merits, we address our jurisdiction to review the denial of the husband’s motions. For this purpose we differentiate between the trial court’s refusal to dismiss or stay the child custody determination and its refusal to dismiss or stay the dissolution proceedings. . Implicit in the trial court’s orders relating to child custody is a finding that Florida is the appropriate forum for a custody determination. Although we do not appear to have jurisdiction to review that finding pursuant to Rule 9.130(a)(3)(A), Fla.R.App.P., which authorizes review of trial court’s orders which “concern venue,” we have elected to treat the notice of appeal as a petition for writ of certiorari.

Rule 9.130(a)(3)(A) apparently applies only to venue within the State of Florida. We recognize that although venue and jurisdiction share a close relationship, they are distinct concepts. “Venue in the technical meaning of the term means the place where a ease is to be tried whereas jurisdiction does not refer to the place of the trial but to the power of the court to hear and determine the case.” 20 Am.Jur.2d Courts, § 89 (1965). In order to promote a host of policies which are enumerated in Section 61.-1304, Florida Statutes (1981), the Uniform Child Custody Jurisdiction Act requires, in some instances, a court to decline to exercise its jurisdiction in deference to the courts of a sister state. This requirement is in the nature of venue. Because this situation is one closely analogous to venue, we believe the same considerations which justify interlocutory review of venue disputes justify invocation of our certiorari jurisdiction.

Section 61.1314(1), Florida Statutes (1981), reads as follows:

(1) A court of this state shall not exercise its jurisdiction under this act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act, unless the proceeding is stayed by the court of the other state because this state is a more appropriate forum or for other reasons.

The above section is part of the Uniform Child Custody Act which constitutes a compact between sovereign states. In an effort to curb the reprehensible parental practice of childnapping and to avoid the confusion engendered by conflicting custody decisions, the states adhering to this compact have agreed to stay the determination of child custody when there is a prior court’s claim on the right to make that custody decision. Under the Uniform Act, when a court in one state is asked to make a child custody decision but receives notice of a pending child custody proceeding in another state, the statute requires the second court to stay its hand until the first court’s deliberations are complete.

Given the requirements of the statute, we hold that the trial court should have granted the husband’s motion to stay the child custody proceedings. Admittedly, the wife satisfied the jurisdictional threshold for filing a child custody action because she alleged that the children had resided in Florida for more than six months preceding the filing of the counterpetition. The husband, however, by alleging the pendency of the Georgia custody proceeding, required the Florida court to determine whether the Act mandated that it decline to exercise its jurisdiction. As notéd above, Section 61.-1314(1) requires that a Florida court decline to exercise its jurisdiction over a child custody ease when the court is informed of a similar pending action previously filed in a sister state. Thus, once the Florida court satisfied itself as to the truthfulness of the allegations about a pending Georgia proceeding, it was obligated to stay the Florida custody proceedings. Its failure to do so constitutes reversible error. See Hanson v. Hanson, 379 So.2d 967 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1114 (Fla.1980); Trujillo v. Trujillo, 378 So.2d 812 (Fla. 3d DCA 1980); see also Wheeler v. Wheeler, 383 So.2d 655 (Fla. 2d DCA 1980).

Next, we consider the denial of the husband’s motion to stay the counterpetition for divorce, alimony, child support, and attorney’s fees. We believe this ruling was also erroneous because it violated the principle of priority. Again, we point out that our ruling on this point apparently does not fall within the ambit of Rule 9.130(a), Fla. R.App.P. Rather, we reach it also through our certiorari jurisdiction, concluding that the order constitutes a departure from the essential requirements of law and that appellant lacks an adequate remedy at law. Gulf Cities Gas Corp. v. Cihak, 201 So.2d 250 (Fla. 2d DCA 1967).

In general, where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the “principle of priority.” 20 Am.Jur.2d Courts § 128 (1965). Admittedly, this principle is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.

The application of this doctrine to cases pending in different sovereign states was discussed in Simmons v. Superior Court, 96 Cal.App.2d 119, 214 P.2d 844 (Dist.Ct.App.1950). That case involved a divorce between Texas residents where the wife held property in her own name in Texas and California. The wife filed for divorce in Texas; the husband did the same in California. The wife then moved the California court to stay the exercise of its jurisdiction until completion of the Texas action. When the California trial court denied the motion, the wife appealed and a California appellate court reversed. While acknowledging that the trial court’s decision to stay was discretionary, the appellate court ruled that failure to grant a stay constituted an abuse of that discretion. The court relied on the principle of priority and noted that when it was applied between concurrent jurisdictions, it was based on “wisdom and justice, to prevent vexation, oppression and harassment, to prevent unnecessary litigation, [and] to prevent a multiplicity of [law] suits .... ” 214 P.2d at 849. The court then stated the following:

We think there is no distinction in reason or difference in principle between a case where a later action between the same parties involving the same subject matter is commenced in the same state and a case where a later action between the same parties involving the same subject matter is commenced in another state.

Id.

Florida has followed this principle in instances of concurrent federal and state jurisdiction, Wade v. Glower, 94 Fla. 817, 114 So. 548 (1927), and in instances of concurrent jurisdiction between states, where the action was pending between the same parties. A. J. Armstrong Co. v. Romanach, 165 So.2d 817 (Fla. 3d DCA 1965), reversed on other grounds, 172 So.2d 444 (Fla.1965); see also Annot., 19 A.L.R.2d 301 (1951); 19-21 A.L.R.2d Later Case Service 301-326 (1982). We believe that justice requires the principle of priority to apply and govern the result on the motion to stay. Here, it seems clear that the pending Georgia divorce action, which of necessity will determine the children’s custody, is the proper forum for the resolution of the entire case. To fail to stay the wife’s Florida divorce action will only cause unnecessary and duplicitous lawsuits. It would be oppressive to both parties. The appellee wife, who initially submitted herself to the jurisdiction of the Georgia courts, cannot now be heard to complain of any undue burden in being forced to return to Georgia.

Accordingly, we grant certiorari and quash the trial court’s orders with directions to grant the husband’s motion to stay the wife’s counterpetition relating to child custody, divorce, support, alimony, and attorney’s fees until a final judgment is rendered in the Georgia action.

ANSTEAD and GLICKSTEIN, JJ., concur.

HURLEY, J., concurs in part and dissents in part.

HURLEY, Judge,

concurring in part and dissenting in part.

I concur in all of the court’s opinion save for one procedural aspect. I respectfully disagree with the conclusion that the husband is not entitled to review as a matter of right on the child custody issue. Implicit in the trial court’s order relating to child custody is a finding that Florida is the appropriate forum for a custody determination. Consequently, I would hold that this court has jurisdiction to review the nonfinal order pursuant to Rule 9.180(a)(3)(A), Fla.R. App.P., because it concerns venue.

The majority applies a limiting gloss to the rule and holds that it “applies only to venue within the state of Florida.” Ante, at 1048. I find nothing in the rule to suggest this result. More important, I believe that such a restrictive interpretation violates a fundamental principle of rule construction. Court rules should be construed liberally to effectuate the ends of justice and promote access to the courts. See Director of Revenue v. United States, 392 F.2d 307 (10th Cir. 1968); Potts v. Wainwright, 413 So.2d 156 (Fla. 4th DCA 1982) (Hurley, J., concurring). Thus, I submit that the rule should be applied as written, without limitation. Moreover, since the Legislature has seen fit to adopt the Uniform Custody Jurisdiction Act, Section 61.1302, et seq., Florida Statutes (1981), which places venue for certain actions outside the state, this court should not impede the underlying policy of the Act by crafting arbitrary distinctions which preclude interlocutory review of inter-state venue determinations.

Venue is commonly defined as the place where a case is to be tried. To be sure, most venue determinations involve site selections within a state. But, in those rare instances where an inter-state compact operates to require the trial of some matters in one state rather than another, even though both states may have subject matter jurisdiction, then, I respectfully suggest that “venue” may cross state lines. I am aware that the doctrine of forum non con-veniens may not be used to justify the transfer of a suit to a forum in another state. See Houston v. Caldwell, 359 So.2d 858 (Fla.1978). Nonetheless, by its express provisions, the Uniform Child Custody Jurisdiction Act is an exception to the rule. The language of Section 61.1314(1), Florida Statutes (1981), acknowledges that a Florida court may have subject matter jurisdiction but requires the Florida court to restrain the exercise of its jurisdiction when the court of another state has a pending custody action concerning the same parties. Under the Uniform Child Custody Jurisdiction Act, a court’s decision on whether to stay the resolution of a child custody proceeding is essentially a venue determination. Consequently, I would hold that pursuant to Rule 9.130(a)(3)(A), Fla.R.App.P., we have jurisdiction to review the non-final order denying the husband’s motion to dismiss or stay the wife’s counterpetition for child custody.

      . The orders in question do not actually determine child custody and, therefore, Rule 9.130 (a)(3)(C)(iii), Fla.R.App.P., will not support non-final review.

      . Section 61.1308, Florida Statutes (1981), sets forth the grounds for jurisdiction in child custody cases. One ground is that Florida is the child’s “home state,” that is, the child has resided in Florida for the previous six months. See §§ 61.1308(l)(a)l and 61.1306(5), Fla.Stat. (1981).

      . There is precedent for a broad construction of Florida Rule of Appellate Procedure 9.130(a)(3)(A)’s language that a non-final order need only “concern venue” to be appealable. Rule 9.130’s predecessor, Rule 4.2, was interpreted to permit an appeal from an order denying a motion to dismiss based on ‘forum non conveniens’ grounds. Rule 4.2 permitted interlocutory appeals from orders “relating to venue.” The doctrine of forum non conveniens was held to sufficiently relate to venue so as to be appealable. Southern Ry. v. McCubbins, 196 So.2d 512 (Fla. 3d DCA 1967). See also Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982) (courts may properly consider ‘practical result’ of an order to determine whether the order in question merits a non-final appeal).


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Jorge LICOURT, Appellee.
    No. 81-2246.
    District Court of Appeal of Florida, Fourth District.
    July 21, 1982.
    Rehearing Denied Aug. 25, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Jose M. Sosa, West Palm Beach, for ap-pellee.
   DOWNEY, Judge.

Proceeding upon authority of two BOLO’s the police stopped an automobile containing appellant and two others. After the undisputedly proper stop the automobile was blocking traffic and, since none of the occupants could speak English, the police decided to take the occupants to the police station nearby and to impound the automobile. Apparently the vehicle was old and the windows would not close, so an inventory search was conducted at the station. While inventorying the car, an officer noticed a “red and white piece of checkered cloth located in a housing which ran across the steering wheel underneath the dashboard.” The officer testified that “I knew that cars don’t normally come with red and white checkered cloth stuffed in that area of the dashboard. So I reached underneath the dash and removed the cloth to see what it was, consisted of.” Upon removing the cloth, he found what proved to be cocaine.

Appellee’s motion to suppress the contraband was granted and the State perfected this appeal, contending the trial court erred in suppressing the evidence because 1) ap-pellee did not show he had standing; 2) the court recognized the inventory search was proper; 3) the cloth was in plain view; and 4) the search was incident to a lawful arrest. Appellee says the order of suppression is proper because 1) the inventory search became an exploratory search for evidence, and 2) he had standing because the crime charged involved possession of the very property illegally seized.

Appellee’s contention of automatic standing under the old Jones rule is no longer viable since the decision in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Thus, while appellee did fail to show he had standing to attack the illegality of the search, which showing is a requisite to a successful motion to suppress, we need not rely upon that oversight for reversal.

Appellee conceded the stop in this case was proper and that the police had a right to take the appellant and the car to the police station. In fact, he does not argue that an inventory search was inappropriate under the circumstances; rather, he zeros in on the scope of the search as being the offending aspect of the police action. We reject this contention and hold that the inventory search was appropriate and that it did not exceed in scope the parameters and purposes of such police procedure.

We do not believe there is merit in the State’s contention that the search in this case can be upheld as a search incident to a lawful arrest under New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). We concede that Belton liberal ized the circumstances under which a search incident to an arrest can be conducted so that the area to be searched is no longer restricted to the area within the arrestee’s immediate control as held in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and Ulesky v. State, 379 So.2d 121 (Fla. 5th DCA 1979). However, even Belton retains a time restriction regarding the search; it must be a “contemporaneous incident of that arrest.” Thus, a search conducted at a time and place far removed from the scene of the arrest would not appear to fulfill the requirements of a search incident to an arrest.

Accordingly, since the inventory search was propér, we reverse the order suppressing the evidence and remand the case for further proceedings.

REVERSED AND REMANDED, with directions.

ANSTEAD and BERANEK, JJ., concur.

      . Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

      . State v. Muzevsky, 388 So.2d 21 (Fla. 4th DCA 1980); Rizzo v. State ex rel. City of Pompano Beach, 396 So.2d 869 (Fla. 4th DCA 1981); Daley v. State, 398 So.2d 840 (Fla. 4th DCA 1981); and State v. Rivera, 400 So.2d 22 (Fla. 4th DCA 1981).


author: NESBITT, Judge.

text:
    Ronald J. TOBER, Director of Metropolitan Dade County Transit Agency and Metropolitan Dade County, Appellants, v. Isabel SANCHEZ, Appellee. Ofelia ESCOBEDO, Appellant, v. Ronald J. TOBER, Director of Metropolitan Dade County Transit Agency and Metropolitan Dade County, Appellees.
    Nos. 81-742, 81-1858.
    District Court of Appeal of Florida, Third District.
    July 27, 1982.
    Rehearing Denied Aug. 30, 1982.

      Robert A. Ginsburg, County Atty., and John E. Finney, Asst. County Atty., for Ronald J. Tober and Metropolitan Dade County.
    Stabinski, Funt, Levine & Vega, Scher-man & Zelonker and Regina F. Zelonker, Miami, for Isabel Sanchez and Ofelia Esco-bedo.
    Before SCHWARTZ, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

These consolidated appeals involve the identical question as to whether the official charged by law with the maintenance of public records pursuant to Section 119.021, Florida Statutes (1979), may transfer actual physical custody of the records to the county attorney and thereby avoid compliance with a request for inspection under the Public Records Act, Chapter 119, Florida Statutes (1979). We answer this question in the negative.

Both cases had their genesis when attorneys for potential claimants against the Metropolitan Dade County Transit Agency (Agency) sought inspection of the accident records and reports emanating from separate Agency bus accidents. The requests for inspection were denied and the attorneys instituted mandamus proceedings against Ronald J. Tober, as Director of the Agency, and Metropolitan Dade County (County). In Case No. 81-742, the trial court granted a peremptory writ of mandamus ordering compliance with the demands for inspection; while in Case No. 81-1858, the writ was denied and the application therefor quashed.

Tober and the County have presented three arguments in this court. First, they contend that since Tober no longer has actual possession of the records sought, he is not the custodian of the records for purposes of permitting inspection under Section 119.07(l)(a), Florida Statutes (1979). However, there is no doubt but that Tober, as Director of the Agency, is the officer “charged by law with the responsibility of maintaining the office” and is consequently the custodian of the subject records. § 119.021, Fla.Stat. (1979). Section 119.01, Florida Statutes (1979), expresses this state’s policy that such records “shall at all times be open for a personal inspection by any person.” To permit an agency head to avoid his responsibility simply by transferring documents to another agency or office would violate the stated intent of the Public Records Act, as well as the rule that a statute enacted for the benefit of the public is to be accorded a liberal construction. City of Miami Beach v. Berms, 245 So.2d 38 (Fla.1971).

As their second and third arguments, Tober and the County claim that the accident reports are exempt from disclosure because they fall under the work-product doctrine and the attorney-client privilege. In Wait v. Florida Power & Light Company, 372 So.2d 420 (Fla.1979), our supreme court determined that these judicially-created doctrines are inapplicable to the Public Records Act absent a statutory amendment including them among the exemptions to the Act’s disclosure provisions. 372 So.2d at 424. This holding disposes of the work-product argument, but the claim of attorney-client privilege is not so easily dismissed. It has been suggested elsewhere that by enacting Section 90.502, Florida Statutes (1979), codifying the doctrine of attorney-client privilege, the legislature may have effectively amended the Public Records Act as contemplated by the Wait opinion. Donner v. Edelstein, 415 So.2d 830 (Fla. 3d DCA) (1982). Nevertheless, we expressly decline to venture into the area of statutory construction because we otherwise determine that there simply is no attorney-client privilege present in the instant case.

The records which both petitioners sought to inspect were internal accident reports prepared by Agency employees. No attorneys were privy to these reports until they were transferred by the Agency to the County Attorney’s Office. Documents which are given by a client to an attorney in the course of seeking legal advice are privileged in the hands of the attorney only if they were privileged in the hands of the client. See Briggs v. Sakines, 392 So.2d 263 (Fla. 2d DCA 1980), pet. for review denied, 397 So.2d 799 (Fla.), cert. denied, 454 U.S. 815, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). It is conceded that the subject reports were “public records” as defined by Section 119.-011(1), Florida Statutes (1979), and therefore subject to disclosure, while in the hands of the “client” Agency. No privilege being accorded the reports during their tenure at the Agency, none can be conferred by merely transferring them to the County Attorney’s Office. In Re Grand Jury Proceedings, 601 F.2d 162 (5th Cir. 1979); United States v. Johnson, 465 F.2d 793 (5th Cir. 1972).

It is apparent, therefore, that the information sought has been inappropriately placed with the County Attorney’s Office and should be returned to its proper custodian, Ronald Tober, who will be compelled by our mandate to disgorge it.

We would be less than candid if we did not acknowledge that, as the present case demonstrates, public agencies are placed at a disadvantage, compared to private persons, when faced with potential litigation claims. It is also pertinent to observe that the wisdom of such a policy resides exclusively within the province of the legislature.

For the foregoing reasons, the order granting the peremptory writ of mandamus in Case No. 81-742 is affirmed and the order of denial in Case No. 81-1858 is reversed with directions to grant the peremptory writ of mandamus.

      . The bus accident in Case No. 81-742 took place prior to the July 1, 1979 effective date of the Florida Evidence Code, Section 90.-101-.958, Florida Statutes (1979), while the bus accident in Case No. 81-1858 occurred after that date. Thus, were we constrained to discuss the applicability of Section 90.502 to the Public Records Act, such a discussion would only be relevant to Case No. 81-1858.


author: WIGGINTON, Judge.

text:
    UNITED FACULTY OF FLORIDA, LOCAL 1847, Appellant, v. BOARD OF REGENTS, STATE UNIVERSITY SYSTEM, Appellee.
    No. AH-110.
    District Court of Appeal of Florida, First District.
    July 27, 1982.

      Steven A. Been, Tallahassee, for appellant.
    Caesar J. Naples, Tallahassee, for appel-lee.
   WIGGINTON, Judge.

This appeal is from a Public Employees Relations Commission (PERC) order vacating the certification of United Faculty of Florida, Local 1847 (UFF) as the bargaining agent for, among others, “graduate assistants” employed by the State University System at the University of Florida and the University of South Florida. UFF challenges the constitutionality of Chapter 81-305, Laws of Florida, now codified as Section 447.203(3)(i), Florida Statutes (1981) as a denial of the right to bargain collectively and the right to equal protection, both guaranteed by the Florida Constitution.

This appears to be a case of first impression in our state and merits comment on both the historical background of the challenged statute, and the prior proceedings before PERC and this Court which led to the certifications vacated below. In 1968, the voters of Florida ratified revisions to the Florida Constitution including collective bargaining rights for public employees as provided in Article I, Section 6:

Right to Work. — The right of persons to work shall not be denied or abridged on account of membership or nonmembeship in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

The people selected the notion of collective bargaining. This must be received as a constitutional right guaranteed to all of our citizenry except where there is a strong showing of a rational basis for abridgment which is justified by a compelling state interest. See City of Tallahassee v. Public Employees Relations Commission, 393 So.2d 1147 (Fla. 1st DCA 1981). In 1974, the legislature enacted Chapter 447, Part II, excluding a number of employee groups from the definition of “public employee,” with no mention of graduate assistants. § 447.203(3), Fla.Stat. (1974).

In 1976, as the labor organization process continued to mature and bargaining units solidified into compatible groupings, UFF filed a petition seeking to represent graduate assistants. PERC ruled that graduate assistants were public employees within the meaning of Chapter 447, and that the prohibition against solicitation of students in Section 447.501(2)(f), Florida Statutes (1975) did not prevent graduate assistants from organizing. UFF v. Board of Regents, 3 FPER 304 (1977). This Court affirmed. Board of Regents v. PERC, 368 So.2d 641 (Fla. 1st DCA 1979), cert. denied, 379 So.2d 202 (Fla.1979). PERC directed elections to be held among graduate assistants at three of the state’s universities and UFF prevailed at the University of Florida and the University of South Florida. UFF was certified as the bargaining agent for units of graduate assistants at those two schools. UFF v. Board of Regents, PERC Case No. 8H-RC 765-0131 (June 18, 1980).

The 1980 legislature passed House Bill 7-D which included a provision excluding graduate assistants from the definition of “public employee.” However, the bill never became law because it was vetoed by the governor.

The exclusion of graduate assistants from the definition of “public employee” was revisited and passed in the 1981 session becoming Chapter 81-305, Laws of Florida, and codified as Section 447.203(3)(g), (h), and (i), Florida Statutes (1981).

Chapter 81-305 became law in July, 1981, and on August 10, 1981, PERC issued an order to show cause why UFF’s certification as bargaining agent for graduate assistants should not be vacated. On September 24,1981, PERC issued its order concluding that “although prior to the enactment of Chapter 81-305, Laws of Florida, the commission determined that graduate students were public employees, in this situation we are now bound to enforce the law as revised by the legislature.” Accordingly, PERC vacated the certification and this appeal was taken from that order.

The statute under scrutiny is artfully drawn and abundantly clear in its definitional exclusion of graduate assistants as public employees. We find the legislature painstakingly enunciated its logic and reasons for exempting the enumerated categories of persons who may otherwise have been deemed public employees. However, in the legislature’s apparent haste to amend the bill to include the graduate assistant exclusion, its sponsors failed to declare the legislative intent applicable to this exclusion, thus giving no guidance or assistance to the issue sub judice.

Appellant contends that graduate assistants are employees within the meaning of Article I, Section 6 of the Florida Constitution. As there was no testimony given before PERC at the show cause hearing, reversion is made by the parties to findings of PERC at its 1977 hearing wherein the Commission observed that:

It cannot be doubted that graduate assistants are “students in institutions of higher learning,” they are all university students pursuing advanced degrees. But that is not all they are. They all perform work for the various universities operated by the board, their work is of benefit to the universities for which it is performed, the work is performed subject to the supervision and control of professors who are employees of the several universities, and the work is performed in exchange for the payment of money by the board to the graduate assistants who perform the work. A more classic example of an employer-employee relationship can hardly be imagined.

UFF v. Board of Regents, supra, at 305.

Thus, the Commission in its initial certification hearing concluded that graduate assistants were not only employees within the purview of Article I, Section 6 of the Florida Constitution, they were also, in the absence of a specific statutory exception, “public employees” within the meaning of Section 447.203(3), Florida Statutes (1977) and entitled to all of the rights afforded other public employees under Chapter 447, Part II, Florida Statutes.

PERC’s original analysis and definition of an employee is similar to that given by the supreme court in City of Boca Raton v. Mattef, 91 So.2d 644 (Fla.1956). In Mattef, the court, while considering the standard of care owed a worker who fell from a city water tower, held:

An employee is one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done.

At 647.

Appellee submits that a graduate assistant is more student than employee. We reject that argument for the following reasons: The record reflects that graduate assistants work under the orders and directions of a supervising faculty member, for regular pay. Although work assignments are generally in the assistant’s academic area, they are made according to the needs and interests of the employing department and may be totally unrelated to the assistant’s field of interest. State universities hire graduate assistants to supplement the faculty, relieving regular faculty work load and allowing the universities to offer a wider variety of classes and reduce class size. While the work may be viewed as an extension of the educational process designed to enrich the assistants’ academic and professional capabilities, their duties may also be viewed as part-time work performed for the university in order to support themselves and their families while completing their degree. Graduate assistants’ duties do not usually fulfill any degree-related requirements, and assistants do not receive academic credit for performing such duties. The primary beneficiaries of the services performed by the graduate assistants are the faculty members whom they assist, and the university itself, while the graduate assistants are beneficiaries of a paycheck. This looks like employment.

This situation is not unlike the issue posed in Department of Revenue v. Florida Boaters Association, Inc., 409 So.2d 17 (Fla.1981), wherein the Florida Supreme Court rejected the legislature’s attempted exclusion from the definition of “boat” as those boats “used principally as a residence” thereby removing their constitutional exemption from ad valorem taxes. In rejecting the legislature’s newly-defined classification as contrary to the meaning of the constitution, the court stated that a boat remains a boat even if it is used primarily as a home.

Similarly, a person who works as an employee remains an employee even if his principal focus is on obtaining an education rather than on earning a full living.

.The .numerous National Labor Relations Board cases cited by both parties are of general interest but are not decisively applicable. Many of those decisions found student workers not to be employees because as a matter of policy the NLRB desired to preclude the students from collectively bargaining. However, we find that collective bargaining rights in federal law are not based on a constitutional guarantee and thus the status may be denied on the basis of policy.' See Physicians National House Staff Association v. Fanning, 642 F.2d 492, 497 (D.C.Cir.1980), cert. denied, 450 U.S. 917, 101 S.Ct. 1360, 67 L.Ed.2d 342 (1981); and St. Clare’s Hospital, 229 NLRB 1000, 95 LRRM 1180 (1977). In Florida, Article I, Section 6 of the Constitution prevents the legislature from denying employee status to persons who are in fact employees unless the state can demonstrate a compelling interest justifying that abridgment. See City of Tallahassee v. PERC, supra. In short, the pervading issue here is not whether UFF has attempted to raise graduate assistants to the level of collective bargaining — they attained that right in 1968 — but instead, whether they are to be deprived of that right.

We must therefore consider whether there is a compelling state interest that would permit such an abridgment and thereby deny the graduate assistants collective bargaining rights. The legislative history and floor debate surrounding Chapter 81-305 reveal two primary reasons for its enactment: (1) the inappropriateness of bargaining with employees who are already receiving a subsidy, i.e., education at a state university; and (2) the danger that costs would go up, through their higher compensation to graduate assistants, if unionization were allowed. We are not persuaded that these reasons justify an abridgment of graduate assistants’ constitutional rights.

Appellee reiterates the fear expressed in St. Clare’s Hospital that if collective bargaining were injected into the student-teacher relationship, then the emphasis would shift from quality education to economic concerns that would prove detrimental to both labor and education. We find this to be unconvincing because the Board of Regents must walk this narrow path in its present bargaining with other university system units while it strives for excellence in education for our state. The goal is, of course, to raise the quality of the educators and those being educated. Because, in Florida, public employees are prohibited from striking, the universities need not accept bargaining proposals that are inconsistent with quality education.

Appellee asserts that Section 447.501(2)(f) (1981) makes it an unfair labor practice for a union to involve students in institutions of higher learning in union activity. This urging was dealt with and dismissed as being without merit in UFF v. Board of Regents, 3 FPER 304 (1977) when it held:

The clear purpose and intent of Section 447.501(2)(f) is to prohibit employee organizations, and those acting on their behalf, from seeking student support for union activities. The most obvious evil to be prevented by the statute is the exploitation of students by their teachers, or representatives of their teachers, who might otherwise take advantage of the dependent nature of the students’ posture in the student-teacher relationship in order to coerce from the students as unwilling pawns in organizational activities in which the students have no economic interest.
No such exploitation is present here. The Union is not seeking the support of students in the advancement of someone else’s economic interests. The Union here is soliciting employees, who also happen to be students, to support the Union’s activities on behalf of the same employees whose support is solicited. The economic interests in question are the economic interests of the very people who are the subject of the solicitation. Whether such solicitation be desirable or undesirable, it does not transgress the prohibition of Section 447.501(2)(f).

At 306.

The Board of Regents argues that the Florida legislature has previously shown an intent to exclude graduate assistants as employees in precluding unemployment compensation benefits to graduate assistants [Section 443.036(17)(n)(9)(b), Florida Statutes (1981) ]; and from eligibility for membership in the state retirement system. § 216.011(lXo), Fla.Stat. (1981). Another reason advanced for excluding students employed by the educational institution in a capacity unrelated to their studies as being public employees is because their employment is of brief duration.

We reject that reasoning. These legislative and administrative concerns may be addressed as part of the collective bargaining process. Despite the legislature’s preference not to bargain with graduate assistants who receive the benefits of state supported education, such an attitude does not justify abridgment of this constitutional right. The graduate assistants’ length of employment, hours and conditions of work, extent of the state’s supplementing their tuition, waiver of fees, contributions to social security, membership in the state retirement plan, accrual of vacation and sick leave and the many other privileges and prerequisites of state employment may all be considered and balanced at the negotiating table.

In City of Tallahassee v. Public Employees Relations Commission, 410 So.2d 487 (Fla.1981), the supreme court found retirement benefits were a part of the collective bargaining process and that the state had failed to demonstrate an interest justifying the legislature’s exclusion of retirement as a subject of bargaining, despite the city’s fears that excessive concessions could bankrupt the pension fund, in violation of the constitutional provision requiring pension funds to be actuarily sound. The court said:

This argument forgets that the state need not agree to any proposal for retirement benefits or the like which is actuarily unsound. All that it must do under our interpretation of Article I, Section 6, is negotiate on the subject.

At 491.

Similarly, we cannot agree with the Board of Regents that it should be protected from bargaining because it might agree to pay more than it should. It is already experiencing similar if not identical issues in dealing with collective bargaining for university system faculty members who are unionized. We agree with UFF that if concern about higher costs were sufficient reason, collective bargaining rights could be denied to every employee and the guarantee of Article I, Section 6, would be eliminated altogether. The legislature’s goal of limiting costs does not justify singling out any particular group of employees, such as these, and denying collective bargaining rights to that group. Other, and more compelling state interests must be advanced and demonstrated.

We hold that “graduate assistants” are employees within the normal and ordinary meaning of the word and that the inclusion of that category within Section 447.-203(3)(i), Florida Statutes (1981) unconstitutionally denies graduate assistants the right to collectively bargain as guaranteed to all public employees by Article I, Section 6 of the Florida Constitution. We do not address whether the other groups listed in Section 447.203(3)(i) may be excluded from the right to collectively bargain, because the parties have limited their arguments to “graduate assistants” and have not presented us with record evidence from which we could determine their status as “employees” under Article I, Section 6.

Accordingly, the term “graduate assistants” in Section 447.203(3)(i), Florida Statutes (1981) is hereby deleted. State ex rel. Boyd v. Green, 355 So.2d 789, 794 (Fla.1978). PERC’s order vacating certifications is hereby reversed to the extent that it affected the certification of UFF as bargaining agent for graduate assistants.

JOANOS, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

      . 447.203 Definitions
      As used in this part:
      * * * * * *
      (3) “Public employee” means any person employed by a public employer except:

        (g) Those persons appointed to inspection positions in federal/state fruit and vegetable inspection service whose conditions of appointment are affected by the following:

        1. Federal license requirement.

        2. Federal autonomy regarding investigation and disciplining of appointees.

        3. Frequent transfers due to harvesting conditions.

        (h) Those persons employed by the Public Employees Relations Commission.

        (i) Those persons enrolled as graduate students in the State University System employed as graduate assistants, graduate teaching assistants, graduate teaching associates, graduate research assistants, or graduate research associates and those persons enrolled as undergraduate students in the State University system who perform part time work for the State University System.

      . Be It Enacted by the Legislature of the State of Florida:
      Section 1. Legislative Intent
      It is the intent of the Legislature to exempt, by the provisions of s. 447.203(3)(g), Florida Statutes, fruit and vegetable inspection service appointees and by the provisions of 447.-203(3)(h), Florida Statutes, persons employed by the Florida Public Relations Commission from the provisions of chapter 447, Florida Statutes, because:
      (1) All fruit and vegetable inspection appointees are required by the Federal Government to be licensed to inspect fruits and vegetables at the shipping point and the Federal Government retains the authority to revoke an inspection appointee’s license at its discretion; this authority is a part of the Federal/State Inspection Agreement entered into between the United States Department of Agriculture and the Florida Department of Agriculture and Consumer Services; an appointment may be terminated by actions beyond the boundaries of Florida while the appointee is assigned work in another state; and once the federal license is revoked, the appointment must be terminated and Florida may not reappoint unless the license is reinstated by the United States Department of Agriculture.
      (2) The Legislature finds that each federal/state inspection appointee is subject to personnel investigation and disciplinary action by the United States Department of Agriculture that is completely separate from the provisions of chapter 110, Florida Statutes, and rules of the Florida Career Service System or any negotiated contract.
      (3)The legislature finds that the fruit and vegetable inspection appointees are unlike employees in the public service with respect to transfer requirements for the incumbents in the positions; and, since inspection appointees are not certified and licensed to inspect all commodities, it is imperative that an adequate number of certified inspection appointees be available for the appropriate commodity when the crop is ready for harvesting and processing and the only way this condition can be met is for the inspection appointee to agree to accept a transfer as required. (4) The Legislature finds that Florida’s agricultural potential is seasonal and that its inspection demands do not require a year-round work force.
      (5) The Legislature finds that unlike other public employees, employees of the Public Employees Relations Commission have an inherent irreconcilable conflict of interest because any employee organization certified to represent employees of the Public Employees Relations Commission would be subject to the Commission’s regulatory jurisdiction.

      . Appellee relies heavily upon the NLRB decision in St. Clare’s Hospital. That decision, denying employee status to all persons who worked for the institution in which they were also enrolled as students, dealt with students whose work either was required for a degree or because they received academic credit for what they did. Appellee’s reliance is misplaced as those circumstances are not presented by the record in this case.


text:
    Herbert D. ADEY, Appellant, v. FRANK DAWSON MOTOR SALES, and Lynn Underwriting Company, Appellees.
    No. AJ-303.
    District Court of Appeal of Florida, First District.
    July 27, 1982.
    Rehearing Denied Aug. 31, 1982.
    Robert Jackson McGill, Venice, for appellant.
    John J. O’Riorden of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellees.
   WIGGINTON, Judge.

This appeal is from an order of the deputy commissioner denying with prejudice claimant’s Petition for Modification, his sole reason being the parties’ “declining to furnish a record of the prior proceeding in this case” although “having been given an opportunity to do so ... ” Such cryptic language could mean that the deputy felt incapable of determining whether a change of condition had properly been alleged without having the benefit of the record prior to the first order. Or, the deputy could have denied the petition simply because of his annoyance over the parties’ failure to supply the requested record. In any event, it is certainly not this Court’s function to determine a deputy commissioner’s motives or to review what is essentially a “non-order.”

It is the opinion of this Court that, whatever his motives, the deputy’s stated basis for the dismissal of claimant’s Petition for Modification was improper. We therefore reverse the order and remand it to the deputy so that he may either elucidate his reasoning or make sufficient findings of fact and conclusions of law, based upon the record before him, so that we might have before us a proper order for review.

SHIVERS and SHAW, JJ., concur.


text:
    DUVAL COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Company, Appellants, v. Robert C. RUPP, Appellee.
    No. AJ-302.
    District Court of Appeal of Florida, First District.
    July 27, 1982.
    Dawson A. McQuaig, Gen. Counsel, William Lee Allen and Thomas E. Crowder, Asst. Counsels, Jacksonville, for appellants.
    John D. Rawls, Jacksonville, for appellee.
   PER CURIAM.

Paragraph six of the deputy’s order is modified to read:

6. Claimant’s attorney is entitled to interest from Employer at the rate of 12% per annum on the award made herein until paid (F.S. 55.03(1) (1981)).

As modified, the order is AFFIRMED.

SHIVERS, SHAW and WIGGINTON, JJ., concur.


text:
    Michael LAGANELLA, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, a/k/a Aetna Life and Casualty, Casualty and Surety Division, and J. O. Barriball, Appellees.
    No. 81-824.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1982.
    Rehearing Denied Aug. 16, 1982.
    Thomas W. Gibson of Leonhardt, Trickel, Leigh, Gibson, Martin & Jones, Orlando, for appellant.
    Douglas Edward Daze of Haas, Boehm, Brown & Rigdon, P. A., Orlando, for appel-lees.
   PER CURIAM.

AFFIRMED on the authority of Rogers v. Concrete Sciences, Inc., 394 So.2d 212 (Fla. 1st DCA 1981).

ORFINGER, C. J., and DAUKSCH and FRANK D. UPCHURCH, Jr., JJ., concur.


author: ANSTEAD, Judge.

text:
    The SCHOOL BOARD OF PALM BEACH COUNTY For the Use and Benefit of MAJOR ELECTRICAL SUPPLIES OF STUART, INC., Appellant, v. VINCENT J. FASANO, INC., a New York corporation, and United States Fidelity & Guaranty Company, a Maryland corporation, Appellees.
    No. 81-108.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Clarification Denied Aug. 31, 1982.

      Donald F. Wright of Wright & Fulford, Orlando, for appellant.
    Larry R. Leiby of Kavanaugh & Leiby, Miami, for appellees.
   ANSTEAD, Judge.

The School Board of Palm Beach County, on behalf of Major Electrical Supplies of Stuart, Inc., a supplier on a school construction project, appeals from the trial court’s dismissal of Major’s claim against Vincent J. Fasano, Inc., the School Board’s contractor, and its surety, United States Fidelity & Guaranty Company (USF&G). At issue is whether Major has alleged sufficient compliance with certain statutory notice provisions to entitle it to recover against the contractor and surety.

A mechanics lien cannot be secured against property held by a political subdivision. § 713.01(14), Fla.Stat. (1979). However, Section 255.05(1), Florida Statutes (1979), provides an alternative remedy to subcontractors and suppliers in the form of a right of action against the contractor and the contractor’s performance bond. Section 255.05(2) conditions the grant of the cause of action upon compliance with the following notice provisions:

A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the contractor with a notice that he intends to look to the bond for protection. A claimant who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the non-payment. No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given. No action shall be instituted against the contractor or the surety on the bond after 1 year from the perform-anee of the labor or completion of delivery of the materials or supplies.

In May 1978 the School Board of Palm Beach County contracted with Vincent Fa-sano, Inc., for the construction of the West Area Technical School in Palm Beach County. Fasano obtained a bond securing the performance of the contract with United States Fidelity & Guaranty Company (USF&G). Fasano’s electrical subcontractor for the job was Carter Electric. On September 18, 1978, Major Electrical Supplies of Stuart, Inc. sent a written notice to the School Board stating that it was furnishing electrical materials to the West Area Technical Center under an agreement with Carter Electric. Major sent a copy of this notice by certified mail to both Fasano and USF&G. Thereafter, Major furnished supplies to Carter from October 2, 1978, to February 22, 1980. On March 14, 1980, Major sent a letter to Fasano requesting payment of $26,866.28, the balance allegedly due to Major from Carter, and sent copies of this letter to the School Board and to USF&G. When payment was refused Major filed suit against Fasano and USF&G to recover on the USF&G bond. The trial court dismissed Major’s claim with prejudice on the basis that Major failed to comply with the notice provisions of Section 255.05(2), Florida Statutes (1977).

Appellees urge us to uphold the dismissal because appellant’s initial notice was defective in two respects: the notice was furnished before any materials were supplied, and the notice did not specifically inform the contractor that Major “intends to look to the bond for protection.” The appellees concede that the letter sent on March 14, 1980, fulfilled the statutory requirement of a second notice of performance and nonpayment.

We agree that compliance with the notice provisions constitutes a condition precedent to the action. However, as in most cases of statutory construction, our primary task is to determine the intent of the legislature and, if possible, to see that the purpose of the statute is accomplished. Grade v. Deming, 213 So.2d 294 (Fla. 2d DCA 1968); Worden v. Hunt, 147 So.2d 548 (Fla. 2d DCA 1962).

Clearly, the major purpose of Section 255.05(1) is to protect subcontractors and suppliers by providing them with an alternative remedy to a mechanics lien on public projects City of Ft. Lauderdale v. Hardrives Co., 167 So.2d 339 (Fla. 2d DCA 1969). In addition, however, Section 255.-05(2) protects the contractor and the contractor’s surety from having to account to unknown suppliers and subcontractors by putting the burden on the claimants to advise the contractor and surety of their participation on the project and to advise if they are not promptly paid.

Initially, we reject the notion that the first notice was invalid because it was sent too soon. It is clear that the statute’s purpose in seeing that the contractor and surety receive prompt notice of the supplier’s participation in the project was accomplished even though the notice was furnished in advance of the 45 day period allowed by the statute. It would be different if the notice had been furnished after the time allowed.

A more difficult question is presented as to the effect of the absence of specific language in the notice expressing the supplier’s intention to look to the bond for protection. The initial notice provided herein did specifically inform the contractor and the surety that Major was furnishing materials on the School Board’s West Area Technical School project to Carter Electric, the project’s electrical contractor. The notice was in writing and served upon the contractor and surety by certified mail. Signed receipts acknowledging receipt of the notice by both the contractor and surety were attached to the complaint. The copy of the notice served on the contractor also reflected that a copy was being sent to the contractor’s surety, further indicating to the contractor the supplier’s awareness that the surety had bonded this particular project. In essence, all of the factual information required by Section 255.05(2) was provided to the contractor and the surety. Having received the notice the contractor was then in a position to determine whether its electrical subcontractor had properly discharged its obligation to pay for the supplies furnished by Major before making payment in full to the subcontractor.

The only thing lacking in the notice was a specific statement of the supplier’s intent to rely on the bond. However, where it is conceded that the only possible legal consequence of putting the contractor and surety on written notice of appellant’s participation in the project was to secure appellant’s rights under the provisions of Section 255.-05(2), we think that an obvious implication of the notice is the expression of such an intent. We do not think the surety and the contractor were entitled to ignore this implication. We conclude that this notice, subject to any claim by the appellees that they have actually been prejudiced by the omissions alleged, constituted substantial compliance with the requirements of Section 255.05(2). In our view this result best comports with the purpose of the statute of providing an alternative remedy to subcontractors and suppliers involved on public projects, while at the same time insuring that contractors and sureties do not later have to account to unknown subcontractors and suppliers.

Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings consistent herewith.

OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concurs.

BERANEK, J., concurs in conclusion only.

      . Section 255.05(1) provides:
      Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of any public building, for the prosecution and completion of any public work, or for repairs upon any public building or public work shall be required, before commencing the work, to execute a payment and performance bond with a surety insurer authorized to do business in this state as surety. Such bond shall be conditioned that the contractor perform the contract in the time and manner prescribed in the contract and promptly make payments to all persons who are defined in s. 713.01, whose claims derive directly or indirectly from the prosecution of the work provided for in the contract. Any claimant may apply to the governmental entity having charge of the work for copies of the contract and bond and shall thereupon be furnished with a certified copy of the contract and bond. The claimant shall have a right of action against the contractor and surety for the amount due him. Such action shall not involve the public authority in any expense. However, at the discretion of the director of the Department of General Services when such work is done for the state, or at the discretion of the official or board awarding such contract when such work is done for any county, city, political subdivision, or public authority, any person entering into such a contract which is for $25,000 or less may be exempted from executing the [payment and performance bond].

      . The notice was actually in the form of a “Notice to Owner” which is a prerequisite under Chapter 713, Florida Statutes (1979), for securing a mechanics lien on private construction projects.

      . On private construction projects performance bonds are usually secured for the benefit of the owner rather than subcontractors and material-men. National Gypsum Co. v. Travelers Indemnity Co., 417 So.2d 254 (Fla.1982).


author: DELL, Judge.

text:
    Nancy Jean FERRIS, presently known as Nancy Jean Stevenson, Appellant, v. Richard James FERRIS, Appellee.
    No. 81-1173.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Rehearing Denied Sept. 3, 1982.

      Donald J. Swanson, Fort Lauderdale, for appellant.
    Larry Klein, West Palm Beach, for appel-lee.
   DELL, Judge.

The former wife appeals a final order determining the parties’ rights in the marital home.

After her remarriage, appellant sought to enforce a buy-out provision of a property settlement agreement incorporated into the final judgment of dissolution. The trial judge referred the matter to a general master pursuant to Rule 1.490, Florida Rules of Civil Procedure. The master held hearings and entered her report, but did not file transcripts of the hearings. Appellant filed an exception to the master’s report, which claimed that she was denied a full and fair hearing, but did not file transcripts. The trial court adopted the master’s recommendation. Appellant moved for rehearing, rearguing her exception and challenging for the first time the master’s determination of credits due each party on sale of the home, and the master’s recommendation that appellant pay to appellee her proportionate share of the fair rental value of the property pending sale of the home to others in the event she declined to buy appellee’s interest herself. The trial judge denied rehearing. Appellant here challenges the final judgment on the same grounds presented in her motion for rehearing.

We find no merit in appellant’s contention that the trial court denied her a full hearing. She did not file a transcript of the proceedings before the general master. Without a basis on which to determine the master erred, the court may not sustain exceptions to the master’s report. Claughton v. Claughton, 347 So.2d 437 (Fla. 3d DCA 1977).

The functions and purposes of a motion for rehearing have been thoroughly discussed in Cole v. Cole, 130 So.2d 126, 130 (Fla. 1st DCA 1961):

The nature of a rehearing is revealed in several opinions of the Supreme Court of Florida in which that court has had occasion to define a rehearing. A rehearing is a second consideration of a cause for the sole purpose of calling to the attention of the court any error, omission, or oversight that may have been committed in the first consideration. [Citation omitted.] A petition for rehearing is a means afforded by rule to present to the court some point which it overlooked or failed to consider by reason whereof its judgment is erroneous. [Citation omitted.] A prime function of a petition for rehearing is to present to the trial court some point which it overlooked or failed to consider, which renders the decree inequitable and erroneous. [Citation omitted.] A petition for rehearing of a suit in equity is available for correction of error apparent on face of record. [Citation omitted.] The Supreme Court in the last-mentioned case also recognized the rule that a petition for rehearing of a suit in equity is available for the purpose of obtaining the court’s permission to introduce newly-discovered evidence.

Appellant presented several points to the trial court in her motion for rehearing. We have carefully studied the petition and concluded that only one point meets the standards set forth in Cole. Appellant demonstrated that the master found second mortgage payments in the amount of $123.00 per month to be alimony, as provided in the property settlement agreement, and awarded appellee credit for mortgage payments made after appellant’s remarriage, but failed to credit appellant for payments made before her remarriage. This inconsistent treatment by the master constitutes an error apparent on the face of the record, and the trial court should have granted rehearing.

Accordingly, the judgment of the trial court is reversed and the cause remanded for reconsideration of the parties’ entitlement to credit with respect to $123.00 per month alimony payments. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

HERSEY and GLICKSTEIN, JJ., concur.

      . The property settlement agreement-specifically provides for the court to retain jurisdiction to interpret and enforce the agreement, and the trial court did, in fact, retain such jurisdiction. See Covin v. Covin, 403 So.2d 490 (Fla.3d DCA 1981).

      . Rule 1.490(f) provides in part:
      The evidence shall be taken in writing by the master or by some other person under his authority in his presence and shall be filed with his report, (emphasis added.)
      Neither party raised this requirement by objection, thus waiving the master’s failure to comply with the rule.