author: BERANEK, Judge. HURLEY, Judge,

text:
    Lorraine Feitsma LAFFERTY a/k/a Lorraine Howard, Appellant/Cross-Appellee, v. ALLSTATE INSURANCE COMPANY, Bruno F. Cassens and Ruth Steel Cassens, Appellees/Cross-Appellants.
    No. 81-279.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 1982.
    Rehearing Denied Jan. 11, 1983.

      J. Michael Brennan of Brennan & Mus-chott, Fort Pierce, for appellant/cross-ap-pellee.
    Bradford L. Jefferson of Brennan, McAli-ley, Hayskar & McAliley, Fort Pierce, for appellees/cross-appellants.
   BERANEK, Judge.

Plaintiff appeals and defendant cross appeals alleging error in the trial of a personal injury case which resulted in a $3,700 verdict and a $2,500 additur on post trial motion. We reverse and remand for new trial based on the admission of evidence relating to plaintiff’s failure to wear seat belts and the court’s instruction thereon. The defendant introduced expert testimony that plaintiff’s facial and knee injuries would not have occurred if she had been wearing the shoulder and lap belts which were available in her automobile. This evidence was objected to both prior to and during trial. The court admitted the evidence and instructed the jury that plaintiff’s failure to wear an available seat belt could be considered in deliberations on plaintiff’s claims. We hold that such evidence is inadmissible both as a defense on liability and as a limitation on damages.

The legal issue of seat belt usage or nonusage is widely debated and inconsistently applied by courts in current auto accident personal injury litigation. See: Annot. 80 A.L.R.Sd 1033 (1977) [Nonuse of Seat Belts as Failure to Mitigate Damages]; and Annot. 92 A.L.R.3d 9 (1979) [Automobile Occupant’s Failure to Use Seat Belts as Contributory Negligence]. Judicial consideration has taken three approaches by either excluding the evidence, or admitting it as bearing on negligence or damages. Those cases admitting seat belt evidence generally require expert testimony as to the enhancement of the plaintiff’s injuries due to his or her failure to buckle up.

In Brown v. Kendrick, 192 So.2d 49 (Fla. 1st DCA 1966), the First District held it was not within the province of the courts to legislate on the use of seat belts and thus found that refusal to allow evidence of a failure to use seat belts as constituting a defense to liability was not error. Notwithstanding the intervening sixteen years and Florida’s adoption of comparative negligence, we are still impressed with the wisdom of that decision.

The validity of judicial restraint requiring legislation by the Legislature is extremely well stated in Peterson v. Klos, 426 F.2d 199 (5th Cir.1970):

An argument that decedent was under a duty to wear his seat belt, imposed by the common law, is fraught with difficulties. Before this new safety device can be said to modify the standard of ordinary care, there must be some consensus as to its utility. There was no evidence before the district court concerning the safety value of seat belts. Research and statistical experience indicate that seat belts are beneficial in most accident situations, though the lap belt has been found to cause rather than prevent injury in certain crash conditions.
In spite of statistics, expert opinion, and safety campaigns, there is indication that the general motoring public still does not consider seat belts a necessary accoutrement of safe driving. As noted by one commentator:
The social utility of wearing a seat belt must be established in the mind of the public before failure to use a seat belt can be held to be negligence. Otherwise the court would be imposing a standard of conduct rather than applying a standard accepted by society.
Yet another problem was recognized by the Supreme Court of North Carolina in Miller v. Miller [273 N.C. 228, 160 S.E.2d 65]. The court observed that, excluding the most bizarre circumstances, “there are no standards by which it can be said that the use of seat belts is required for one trip and not for another,” since a motorist ordinarily must engage the seat belts before the imminent danger of an accident is apparent. If a duty to use seat belts is recognized, it must then be an absolute duty, not dependent on the circumstances of a particular accident. As the Miller court noted, no court has as yet held the failure to use seat belts to be negligence per se. Some courts have concluded that the question requires arbitrary resolution and commends itself to the legislative body for determination as a question of public policy, [citing, inter alia, Brown v. Kendrick, supra; footnotes otherwise omitted] 426 F.2d at 204-05.

We concur in this reasoning and are particularly persuaded by the fact that buckling up almost always occurs in the abstract and without regard to a particular accident. Individual injuries, depending upon their own out-of-court experience, should not be given free reign to reach inconsistent conclusions about whether a reasonably prudent person should have engaged his seat belt. Evidence of enhanced injuries from no seat belt is hindsight. What evidence would be relevant as to whether plaintiff should have used the belt before the accident? The test results, surveys, and statistics on the effectiveness of seat belts are traditionally the basis for legislative consideration. A jury should not find the existence or nonexistence of a legal duty to use a belt based upon such traditionally legislative materials. Florida’s Legislature has had two decades in which to enact a statute similar to that enacted in 1971 requiring motorcycle riders to wear helmets. See Section 316.211, Florida Statutes (1981). The fact that the Legislature has chosen to remain silent on the seat belt issue, while taking a stance on the helmet issue, may be taken as a declaration that the defense is not recognized. We conclude that judicial restraint is here the better course.

Having dealt with the seat belt defense, we now turn our attention to the mitigation of damages issue. No Florida court has specifically determined whether seat-belt nonuse may be considered solely in mitigation of plaintiff’s damages. Case law from other jurisdictions is split and respectable judicial reasoning and authority exists on both sides of the issue. See Annot. 80 A.L.R.3d 1033 (1977), Nonuse of Seat Belt as Failure to Mitigate Damages.

The view allowing the admission of such evidence is exemplified by the New York position in Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974). There it was held that evidence of a plaintiff’s nonsue of an available seat belt could be considered by the jury in its determination of damages. Expert testimony that nonuse of the seat belt actually resulted in increased injuries to the plaintiff was required. The court held that such evidence was properly considered in the determination of a plaintiff’s damages. In Pritts v. Walter Lowery Trucking Co., 400 F.Supp. 867 (W.D.Pa.1975), the court applied Pennsylvania law and concluded that admission of seat belt evidence was proper on the theory of avoidable consequences.

The view that such evidence is inadmissible was noted in Selfe v. Smith, 397 So.2d 348 (Fla. 1st DCA 1981). There, the court made reference to Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977), and summarized the Washington court’s reasons for disallowing evidence of seat belt nonuse as follows:

(1) plaintiff need not predict the defendant’s negligence or anticipate an accident; (2) seat belts are not required in all vehicles, and defendant shouldn’t be permitted to take advantage of the fact that they were installed in plaintiff’s vehicle; (3) most people don’t use seat belts, so a jury shouldn’t be permitted to find that they should; and (4) allowing a seat belt defense will produce a “veritable battle of experts” on the causation question, and speculative verdicts. 397 So.2d at 351 n. 8.

Other concerns with allowing such evidence in mitigation of damages have also been expressed. For example, it is feared that permitting such testimony would lead to jury speculation concerning damages or would prove to be a windfall to tortfeasors. See, e.g., Fischer v. Moore, 183 Colo. 392, 517 P.2d 458 (1973). Moreover, it has been held that since the effectiveness of seat belts in preventing or limiting injury is still questionable, a nonuser would not be deemed prima facie unreasonable. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1970). Further, absent a statutory requirement to use seat belts, nonuse should not constitute a breach of duty justifying mitigation. Selgrado v. Commercial Warehouse Co., 88 N.M. 579, 544 P.2d 719 (1975).

Perhaps the most compelling reason for disallowing evidence of seat belt nonuse is the fault vs. damages or loss argument. A typical verdict form in an automobile case reads as follows:

VERDICT
We, the jury, return the following verdict:
1. Was there negligence on the part of defendant which was a legal cause of damage to plaintiff?
YES_ NO_
If your answer to question 1 is NO, your verdict is for defendants, and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If your answer to question 1 is YES, please answer question 2.
2. Was there negligence on the part of plaintiff which was a legal cause of his damage?
YES_ NO_
If your answer to question 2 is YES, please answer question 3. If your answer to question 2 is NO, skip question 3 and answer question 4.
3. State the percentage of any negligence which was a legal cause of damage to plaintiff, that you charge to:
Defendant , _%
Plaintiff _%
Total must be 100%
Please answer question 4.
4.What is the total amount (100%) of any damages sustained by plaintiff and caused by the incident in question?
Total damages of plaintiff $_
In determining the total amount of damages, do not make any reduction because of the negligence, if any, of plaintiff. If you have found plaintiff negligent in any degree, the court in entering judgment will reduce plaintiff’s total amount of damages (100%) by the percentage of negligence which you found is chargeable to plaintiff.
SO SAY WE ALL this _ day of_, 19_.
Foreman or Forewoman

In answering questions 1-3, a jury is determining the legal cause of damage, or simply, fault. The jury looks at the facts and decides, in lay terms, whose fault it was. It fixes a percentage of fault to each party totaling 100% for causing the accident. As an example, let us take a situation where the defendant is 80% negligent, and the plaintiff is 20% negligent in causing an accident with damages of $50,000. Plaintiff’s judgment would then be in the amount of $40,000. However, if evidence is admitted that, had the plaintiff been wearing a seat belt, he would have suffered only 10% of his injuries, where on the verdict form does the jury take this information into account? Certainly, the jury should not be considering nonuse of seat belts in questions 2 and 3; their use or nonuse was not the cause of the accident. Do we add another question to the verdict form on mitigation of damages? In our example, should plaintiff’s recovery of $40,000 be reduced by 90% to $4,000? We think not. Should we simply let the jury blend all of the factors together without being able to even verbalize the logical steps by which they should arrive at a conclusion?

However trite it may be, we still hold to the basic concept that a tortfeasor takes his plaintiff as he finds him. Mitigation of damages concerns a plaintiff’s conduct after an accident, not before. Were we to admit evidence of nonuse of seat belts, we may well be obligated to admit evidence of other pre-accident conduct dealing with safety issues. For example, numerous studies have shown that standard-size cars are safer than compact or sub-compact cars. Should a plaintiff be penalized for not taking this safety factor into consideration when purchasing a car? Further, hardtops are safer than convertible tops. Is this for jury consideration and for court to instruct on? What about evidence demonstrating that had the convertible top been up rather than down, plaintiff would not have sustained any injuries? We view such evidence of prior conduct as a Pandora’s box which we decline to open. Furthermore, the prior regulation of conduct is a matter for the legislature rather than the courts to decide.

We also have great difficulty comparing the negligence of failing to buckle up with the negligence of causing an accident. The unbuckled plaintiff’s conduct seems mild and acceptable while sitting innocently at a stoplight when contrasted with a hypothetical speeding and intoxicated driver who is 100% at fault in the resulting rear end collision. Should such a reprehensibly negligent person have an advantage because his victim would have been safer with a seat belt? We think not. Our rule has always been that lawful driving of an automobile is not negligence. People lawfully driving a car on New Year’s Eve probably know there will be drunks on the road but the innocent driver is not held negligent because he would have been safer at home. Absent a consistent legislative pronouncement reflecting public policy on the subject, we conclude that such evidence should not be admitted.

In the instant case, in addition to the reasons stated by the Washington court in Amend v. Bell, supra, we are convinced that the admission of the evidence in question has the effect of placing undue emphasis upon the single evidentiary fact that the injuries resulting from defendant’s negligence may have been lessened by use of a seat belt. We hold the combined effect of the admission of the evidence and the court’s instruction thereon constituted error requiring a new trial. On retrial the evidence shall not be admitted.

We certify the following question to the Florida Supreme Court as one of great public importance:

SHOULD FLORIDA COURTS CONSIDER SEAT BELT EVIDENCE AS BEARING ON COMPARATIVE NEGLIGENCE OR MITIGATION OF DAM-. AGES?

REVERSED AND REMANDED.

DOWNEY, J., concurs.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

I respectfully dissent. Although the majority opinion sets forth an attractive argument for reversal, I am persuaded by the rationale contained in Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164 (1974), and in Judge Schwartz’s dissent in Insurance Co. of North America v. Pasakarnis, 425 So.2d 1141 (Fla. 4th DCA Case No. 80-1895, opinion filed December 15, 1982). Accordingly, I would affirm the judgment.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Marietta GOODE, as personal representative of the Estate of Joel Goode, on behalf of Marietta Goode, individually, and Harry Goode, individually, Appellants, v. WALT DISNEY WORLD CO., a Delaware corporation; Columbia Casualty Company, and Lloyds of London, Appellees.
    No. 81-1431.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Rehearing Denied Jan. 31, 1983.

      Philip Freidin, P.A., and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, for appellants.
    John L. O’Donnell, Jr., and Thomas B. DeWolf of DeWolf, Ward & Morris, P.A., Orlando, for appellees.
   COBB, Judge.

We are asked to review a summary judgment entered by the trial court in favor of the defendant, Walt Disney World Co., in an action for the wrongful death by drowning of a four-year-old child, Joel Goode. Although the trial court found “that there are genuine issues of fact as to the negligent design of certain theme park facilities,” it found these issues' immaterial because of an absence of evidence of causal relationship between such negligence and the death of the child. We reverse and remand for trial.

The background facts show that on August 11, 1977, Joel Goode, age 4, drowned while visiting Walt Disney World Theme Park. The drowning was not witnessed. The evidence gathered at depositions prior to an anticipated trial show that Joel, his mother and several other relatives were visiting the park and met at an ice cream shop at around 11:20 P.M. Mrs. Goode sat at a table bordering a grassy fenced-in area in which Joel and two other children were playing. The mother testified that the area was fenced in on all sides and that Joel had climbed the fence initially to get inside. After two of her children left, Joel and his 13-year-old cousin continued to play. Shortly thereafter, the cousin came over to the nearby table where Mrs. Goode sat and began talking to her. When she turned around, Joel was gone. Mrs. Goode began searching, and notified Disney personnel of the disappearance. Finally, at about 2:15 A.M., Joel’s body was found approximately 150 feet east of where he was last seen in a waterway running around the castle, generally used for the Swanboat Ride. The water was approximately five feet deep, with a current flowing from east to west. No one saw Joel at any time after his disappearance, nor did anyone see him going into the water. The area where Mrs. Goode was sitting was on the far side of a walkway which ran between the grassy area where the children played and a similar grassy area bordering the moat. In order for Joel to get directly to the other grassy area bordering the moat, it would have required that he climb out of the fenced-in area in which he was playing, cross the walkway, and climb over a second fence. Additionally, there remained an area of grass and shrubbery for Joel to cross before reaching the moat.

Mrs. Goode instituted this suit, alleging Disney to be negligent in the maintaining of its premises, including the failure to provide a fence adequate to prevent climbing by young children, and negligence in the design of the moat, creating a hazardous condition. Disney World answered, denying liability and affirmatively alleging contributory negligence on Mrs. Goode’s part.

Disney moved for a summary judgment on three bases. First, it claimed there was only mere speculation as to the issue of proximate cause; second, the consequences were not foreseeable; and third, the mother’s negligence was an efficient intervening cause of the son’s death, sufficient to relieve Disney of liability as a matter of law.

The trial court granted the motion for summary judgment on October 8, 1981. The court noted that while there were genuine issues of fact as to the negligent design in certain park facilities, the issues were not of material fact. The court found that the only evidence of proximate cause of the death of the child was that the mother failed in her duty to control a child of tender years. The court noted that there was no competent evidence as to the path the child took, and that the drowning under the circumstances was not foreseeable by the defendant. The court stated that without any evidence to show how the child drowned, neither a jury nor the court would be allowed or required to speculate as to any legal cause of events leading to his death. The court concluded by noting that the mother’s negligence was not morally reprehensible or grounds for guilty feelings on her part, noting the large incidence of short lapses in attention by parents.

A final judgment was entered for the defendant on November 5,1981. From this order, the appellant filed her notice of appeal.

The movant for a summary judgment has the initial burden of demonstrating the non-existence of any genuine issue of material fact. Once he tenders competent evidence to support his motion, the opposing party must come forward with counter evidence sufficient to reveal a genuine issue. Landers v. Milton, 370 So.2d 368 (Fla.1979), Courts will not be disposed to grant a summary judgment unless a movant can show unequivocally that there was no negligence, or that the plaintiff’s negligence was the sole proximate cause of the injury. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). Similarly, a question of proximate cause must generally be resolved by the trier of fact from all the facts and circumstances in a particular case, and where questions of negligence or contributory negligence are close, any doubt should always be resolved in favor of a jury trial. McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977). See Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977). Negligence must be shown to be a proximate cause of the injury, and proximate cause does not equal possible cause, nor does it cover every possibility that may indeed occur. Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980).

Here the appellant contends that the child got into the water by climbing the fence and crossing the grassy area to the moat. No evidence of these actions is present in the record, and no witnesses were present. Disney, on the other hand, contends that absent such direct evidence the trier of fact would be required to engage in impermissible speculation that the negligence of the defendant was causally related to the death.

Appellee relies on Nielsen v. City of Sarasota, 110 So.2d 417 (Fla. 2d DCA 1959), to support the summary judgment. In Nielsen, a six-year-old child was at a baseball game with his fourteen-year-old sister. While climbing the bleachers, he fell through an open space between the floorboard and the next row up. He fell to the ground and was severely injured. No one saw him begin his fall and there was no testimony as to what caused him to fall. The trial court entered a summary judgment for the defendant, finding that there was no showing of negligence or that the injury was proximately caused by any alleged negligence. The Second District held that there was a total lack of certain evidence to prove proximate cause, even if it could be said there was some negligence due to faulty construction, and that only speculation was present as to how the fall occurred. The court upheld the summary judgment, finding that it did not suffice to establish actionable negligence based on some unknown reason. The plaintiff appealed to the Supreme Court, citing a conflict with its decision in a prior case, Tucker Bros. v. Menard, 90 So.2d 908 (Fla.1956), which allowed liability based on inferences. The Supreme Court in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960) ruled that since the district court did not rule that proximate cause could not be established by circumstantial evidence, but may be done so in a proper case, there was no conflict and it was discharged. The court made no ruling on the result reached by the lower court and allowed it to stand.

Disney World claims that Nielsen is squarely on point, since in the instant case only speculation is present and that the case therefore should not go to the jury. Appellant counters by claiming that it is entirely proper to rely on circumstantial evidence as a method of proof, allowing inferences to be drawn as to what occurred. See Voelker v. Combined Ins. Co. of America, 73 So.2d 403 (Fla.1954).

In Voelker, the Florida Supreme Court held that if the circumstances established by the evidence are susceptible of a reasonable inference or inferences which would allow recovery, and also capable of an equally reasonable contrary inference, a jury question is presented. The court noted:

We cannot overemphasize our use of the adjective “reasonable” as modifying the noun “inference.” Of course, if none of the inferences on the one hand accords with logic and reason or human experience, while on the other hand an inference which does square with logic and reason is deducible from the evidence, the question is not for the jury, but is one of law for the court.

Voelker, 73 So.2d at 406. The court also noted that if the basic inference is established to the exclusion of any other reasonable theory, it may be built upon, with the basic inference rising to the dignity of an established fact. Id. at 407.

Appellants also rely on Tucker Bros. v. Menard, 90 So.2d 908 (Fla.1956), in which a child came home burned and the parents instituted a suit against a landowner who had a smoldering fire on a nearby lot. There was no testimony that the child was seen on the lot at any time, but the circumstantial evidence showed it was an area where smoldering fires were common. The jury returned a verdict for the parents, and the Supreme Court affirmed, noting that if proved circumstances justify an inference pointing to the essential fact, which inference outweighs all reasonable inferences to the contrary, then it can be said that a conclusion as to the existence of the ultimate fact is justified by the circumstantial evidence. Tucker Bros, 90 So.2d at 911.

Appellants also rely on Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla. 2d DCA 1959), cert. denied, 122 So.2d 408 (Fla.1960), to support their contention that circumstantial evidence as to proximate cause is sufficient to allow the case to go to the jury. In Majeske, a woman fell down some stairs, it was not known what caused the accident, but it was uncontroverted that the defendant was negligent in maintaining the stairs. The court held that the question of whether the negligence was the proximate cause of the accident could be determined by circumstantial evidence, and said that since a prima facie case of negligence was shown, along with the plaintiff’s injury, the jury would be entitled, without speculating, to draw reasonable inferences, with a summary judgment being inappropriate.

Appellee contends that even if the court were to find the inferences as to causation sufficient, a summary judgment would still be appropriate as there were no issues of fact which would permit a jury to see the death as a foreseeable consequence of the alleged negligence. Foreseeability of injury is a prerequisite to the imposition of a duty upon the defendant. If an injury is not reasonably foreseeable then there can be no recovery. A foreseeable consequence is one which a prudent man would anticipate as likely to result from an act and are those that happen so frequently that they may be expected to happen again and are therefore probable consequences. Foreseeable consequences are not “what might possibly occur.” Firestone Tire & Rubber Co. v. Lippincott, 383 So.2d 1181 (Fla. 5th DCA), review denied, 392 So.2d 1376 (Fla.1980). Foreseeability depends in part on whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that “in the field of human experience, the same type of result may be expected again.” Pinkerton-Hays Lumber Co., Inc. v. Pope, 127 So.2d 441 (Fla.1961). Although the actual harm that resulted may be seen as not foreseeable as a matter of law by the court, it is not necessary that the tortfeasor be able to foresee the exact nature and extent of the injuries in the precise manner in which they occurred; rather, all that is necessary is that the tortfeasor be able to foresee some injury likely to result in some manner as a consequence of his negligence. Braden v. Florida Power & Light Co., 413 So.2d 1291 (Fla. 5th DCA 1982); Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA), review denied, 411 So.2d 380 (Fla.1981).

Here, it cannot be said that if indeed there was negligence in the use of short fences, it is not foreseeable as a matter of law that some injury would result, particularly in a place such as Disney World where millions of children pass through each year. Therefore, if the inferences to find causation are sufficient, the question of foreseeability would seem to be one properly for the jury.

We believe there is a reasonable inference available to the jury that a causal relationship exists between the negligence (admitted for summary judgment argument) of the defendant in having a fence too short to prevent physical access to the moat by small children and the drowning death of Joel Goode. Disney World has conceded that it is foreseeable that small children frequently become separated from their parents and that they have been known to climb its short fences and gain access to the grassy area bordering the moat. Access to the edge of the moat is access to the moat itself. A four-year-old boy cannot be guilty of contributory negligence so as to constitute an efficient intervening cause precluding Disney World’s liability. Nor can the mother’s negligent supervision, admitted arguendo by appellant, serve as an efficient, intervening cause shielding Disney World from liability, since her negligent supervision, similar to that of thousands of other parents which occurs annually at the Magic Kingdom, was foreseen by Disney World. Indeed, the evidence below was that at the Kingdom’s Lost Children Center there were 11,420 “lost children” reported in 1977. If an intervening cause is foreseeable, it cannot insulate a defendant from all liability. Rupp v. Bryant, 417 So.2d 658 (Fla.1982).

It was not necessary for the plaintiff below to exclude the existence of other reasonable inferences of non-negligent causation in order to avert entry of a summary judgment. As pointed out in Voelker, 73 So.2d at 406:

... if the circumstances established by the evidence be susceptible of a reasonable inference or inferences which would authorize recovery and are also capable of an equally reasonable inference, or inferences, contra, a jury question is presented.

The summary judgment entered by the trial court is reversed and this cause is remanded for trial.

REVERSED and REMANDED.

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

      . Appellees contend that due to the location of the body, the boy would have been required to float against the current if appellant’s speculation as to what occurred is correct.

      . Both sides concede that the negligence of Disney World, if any, is not at issue, as the summary judgment was on the basis of causation. There were witnesses who testified that the fence as installed was shorter than the one designed to surround the moat.


author: PER CURIAM.

text:
    CONSOLIDATED ALUMINUM CORPORATION, Appellant, v. Horace L. HUNTT and Evelyn Huntt, his wife, Appellees.
    No. 82-453.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 1982.
    Rehearing Denied Feb. 15, 1983.

      Beverly & Freeman and Michael J. Fer-rin, West Palm Beach, for appellant.
    Anderson & Moss, Daniels & Hicks and Patrice A. Talisman, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The plaintiff was injured in 1979 when the ladder he was using slipped while being used contrary to the instructions on the label, (which the plaintiff admitted he did not read). The ladder was manufactured by the defendant in 1973.

The jury returned a verdict finding that the ladder was not defective when it left the defendant’s plant. The jury verdict also found that the plaintiff was 75% negligent and the defendant 25% negligent and awarded the plaintiff $10,000.00 compensatory damages and $60,000.00 punitive damages. Even though the verdict may have been inconsistent, no objection was made in the trial court as to the inconsistency and no error has been preserved in this regard. Keller Industries, Inc., v. Morgart, 412 So.2d 950 (Fla. 5th DCA 1982); Robbins v. Graham, 404 So.2d 769 (Fla. 4th DCA 1981); Tidwell v. Toca, 362 So.2d 85 (Fla. 3d DCA 1978).

We find no basis in this record to support the award of punitive damages. There is no evidence that the defendant acted in any manner to demonstrate a willful and wanton disregard for the safety of prospective users of the ladder. American Motors Corporation v. Ellis, 403 So.2d 459 (Fla. 5th DCA 1981); Auto Specialties Manufacturing Company v. Boutwell, 335 So.2d 291 (Fla. 1st DCA 1976).

Therefore, the final judgment under review is affirmed as to the award of $10,-000.00 compensatory damages but reversed as to the $60,000.00 award of punitive damages.

Affirmed in part, reversed in part.


author: ORFINGER, Chief Judge.

text:
    Effie D. STANSBERRY, Appellant, v. CITY OF LAKE HELEN, Florida, a municipal corporation existing under the laws of the State of Florida, Appellee.
    No. 82-438.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1982.
    Rehearing Denied Feb. 1, 1983.

      Charles L. Early, Jr., of Taylor & Early, P.A., DeLand, for appellant.
    Michael S. Teal of Coble, McKinnon, Rot-hert, Barkin, Clayton, Vukelja & Godbee, P.A., and C. Allen Watts, DeLand, for ap-pellee.
   ORFINGER, Chief Judge.

Appellant Effie D. Stansberry timely appeals a final order of the Circuit Court of Volusia County, denying her petition for writ of certiorari to review the final action of the Lake Helen City Commission in discharging her from employment.

In earlier cases we held that an appeal to this court was the proper procedure to follow in seeking review of an order of the circuit court which, in turn, had reviewed administrative action. In the light of these decisions, an appeal appeared to be the proper procedure and that method of review has not been questioned here.

The Supreme Court has decided, however, that certiorari is the proper method by which an appellate court reviews a certiorari proceeding in the circuit court which, in turn, reviews administrative action below. City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). Thus, the scope of review is limited. See Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980). We treat the appeal here as a petition for writ of certiorari. Fla.R.App.P. 9.040(c).

Petitioner’s position as bookkeeper/billing clerk of the City’s electric and water system was abolished when the city sold the utility. There are no civil service laws or other ordinances which inhibit discharge of employees or which require notice of or a hearing on the discharge of an employee of respondent city. Thus, any determination to abolish the position and discharge petitioner was legislative or executive action, not quasi-judicial, and thus not subject to judicial review. DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957). The trial court so held and denied certiorari, and so did not depart from the essential requirements of law.

Certiorari is DENIED.

DAUKSCH and COWART, JJ., concur.

      . Odham v. Petersen, 398 So.2d 875 (Fla. 5th DCA 1981); County of Volusia v. Transamerica Corp., 392 So.2d 585 (Fla. 5th DCA 1980). See also United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979).

      . Notwithstanding our belief that review in such cases was by plenary appeal, we had nevertheless concluded that the scope of our review was no broader than that of the circuit court. McCray v. Volusia County, 400 So.2d 511 (Fla. 5th DCA 1981).


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. FOREMOST INSURANCE COMPANY, Appellee.
    No. 81-1810.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 15, 1983.

      Pyszka & Kessler and Phillip D. Black-mon, Miami, for appellant.
    Harold C. Knecht, Jr. and David Crowley, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

Subsequent to our opinion reported as Argonaut Ins. Co. v. Maryland Casualty Company, 372 So.2d 960 (Fla. 3rd DCA 1979), Lumbermens Mutual Casualty Company, an additional insurance carrier for Watsco, Inc., filed a complaint against Foremost Insurance Company seeking recovery of the amount paid in settlement and attorneys fees and costs incurred in the settlement of the plaintiff’s claim in the original lawsuit brought by Heat Exchange Inc., against Watsco, Inc.

The original complaint was dismissed for failure to state a cause of action and an amended complaint was likewise dismissed for failure to state a cause of action.

An appeal from this ultimate final order of dismissal of the amended complaint is now before us. We affirm.

Lumbermens, in negotiating and settling the claim against their insured, failed to obtain from Foremost an identifiable agreement, either oral or written, preserving a cause of action against Foremost for either indemnity, contribution and/or equitable subrogation and, by its failure to do so, it has waived any claim thereto. Lehman-Eastern Auto Rentals, Inc. v. Brooks, 370 So.2d 14 (Fla. 3d DCA 1979). Furthermore, under the doctrine of equitable subrogation, Lumbermens could only recover that amount it paid on behalf of a judgment rendered against its insured. General Accident Fire & Life Assurance Corporation, Ltd. v. American Casualty Company of Reading, Pa., 390 So.2d 761 (Fla. 3d DCA 1980); Ranger Insurance Company v. Travelers Indemnity Company, 389 So.2d 272 (Fla. 1st DCA 1980). No such judgment was ever entered. Thus Lumber-mens is left to a cause of action sounding in bad faith. The amended complaint, filed herein, fails to allege specifically those ultimate facts which would support such an action. See & compare: General Accident Fire & Life Assurance Corporation, Ltd. v. American Casualty Company of Reading, Pa., supra; Ranger Insurance Company v. Travelers Indemnity Company, supra. As to the attorneys fees and costs Lumbermens seeks to recover herein, we find they are fees and costs incurred by Lumbermens on its own behalf and were not those rendered on behalf of its insured. Under the holding of Argonaut Insurance Company v. Maryland Casualty Company, 372 So.2d 960 (Fla. 3d DCA 1979), these fees and cost cannot be recovered from Foremost.

Therefore, the final order here under review be and the same is hereby affirmed.

Affirmed.

SCHWARTZ, Chief Judge

(dissenting).

Since I believe that the amended complaint stated a cause of action in equitable subrogation, see Rebozo v. Royal Indemnity Co., 369 So.2d 644 (Fla. 3d DCA 1979), cert. denied, 379 So.2d 209 (Fla.1979); American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979), I respectfully dissent.

      . Neither Lumbermens nor Foremost were named as parties defendant in this original action by Heat Exchange v. Watsco.

      . Lumbermens attempted to file a second amended complaint but, this was stricken for failure to comply with the applicable rules of civil procedure and we find no error. Fla.R. Civ.P. 1.190(a).


text:
    UNITED STATES FIDELITY AND GUARANTY CO., a foreign corporation, Appellant, v. John W. BUCKNER, M.D., Stanley Coira, M.D., Miguel Bisen, M.D., and Karl M. Davidson, M.D., DePoo Hospital, Inc., a Florida Corporation, Olga DePoo, a Personal Representative of the Estate of Julio J. DePoo, M.D., deceased and Key West Medical Association, Inc., a Florida Corporation, Appellees.
    Nos. 81-2568, 81-2633 and 81-2634.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 14, 1983.

      Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy & Graham, and Richard A. Sherman, Miami, for appellant.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, Edna L. Caruso, and Charles Powers, West Palm Beach, for appellees.
    Culpepper, Beatty & Turner and Douglas L. Mannheimer, Tallahassee for Florida Medical Malpractice Joint Underwriting Ass’n as amicus curiae.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

A policy of insurance naming the Key West Medical Association, Inc. (d/b/a De-Poo Hospital) as the insured, and providing for the Association and its board coverage against damage or loss which results from the rendering of “professional services ... while acting within the scope of [their] duties ... ”, did not provide coverage where two members of the hospital’s board of directors conspired “illegally, fraudulently and ultra vires ” to injure the medical practice of plaintiff physicians, (emphasis supplied). See Buckner v. Physicians Protective Trust Fund, 376 So.2d 461 (Fla. 3d DCA 1979).

Reversed and remanded with instructions to enter judgment for appellant.


text:
    Louis FLORIO and Angela Florio, his wife, Appellants, v. CITY OF MIAMI BEACH, a Florida municipal corporation; and City of Miami Beach Redevelopment Agency of the City of Miami Beach, pursuant to the Florida Community Redevelopment Act, FSA 163, Appellees.
    No. 82-578.
    District Court of Appeal of Florida, Third District.
    Jan. 4, 1983.
    Rehearing Denied Feb. 14, 1983.

      Brigham, Moore, Muir, Gaylord, Schuster & Sachs and Toby Brigham, Miami, for appellants.
    John A. Ritter, City Atty., and Lucia T. Allen, Chief Asst. City Atty., Dubbin, Berk-man, Dubbin & Greenfield and Arnold M. Weiner, Miami, for appellees.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

At the time the plaintiff/appellant landowner acquired a parcel of real estate in the City of Miami Beach located in the subsequent dedicated redevelopment area it had on it a structure which was vacant and under citations for building code violations. Thereafter an order from the Unsafe Structure Board was entered requiring the building to be removed or for construction on renovation to commence within ninety days. The landowner failed to submit proper plans to secure the renovation but did secure successive extensions of the deadline for removal. The landowner and the city negotiated for a number of years in an attempt to secure a proper renovation of the structure and the time for removal of the structure continued to be advanced.

The landowner ultimately brought an action alleging “condemnation blight” and seeking inverse condemnation against the City. The trial judge denied the relief sought and left the landowner with his remedy of securing a rehabilitation permit.

The landowner appeals and basically contends that there was a “taking” of his property by it being included in the redevelopment area. We disagree for several reasons. Although the property may have been included in the redevelopment area, renovation thereof was not prevented by the redevelopment ordinance, because the ordinance permitted the property to be utilized until such time as there was a taking. It also permitted the property owner to redevelop his property in a manner compatible with the redevelopment plans and retain private ownership. The landowner was prevented from utilizing the improvement thereon primarily because it was an unsafe structure. No proceedings were ever instituted to upset the finding that the improvement was, in fact, an unsafe structure, and subject to removal originally on November 19, 1974.

A confiscatory zoning ordinance or building regulation applied to real property which does not completely deprive a landowner of use of his land may properly be the subject matter of litigation to strike the ordinance or regulation as applied to the land in question, but is not normally the subject of inverse condemnation. Burritt v. Harris, 172 So.2d 820 (Fla.1965); Mailman Development Corporation v. City of Hollywood, 286 So.2d 614 (Fla. 4th DCA 1974); Kasser v. Dade County, 344 So.2d 928 (Fla. 3d DCA 1974); Town of Indialantic v. McNulty, 400 So.2d 1227 (Fla. 5th DCA 1981).

Therefore, the final judgment here under review is affirmed.

Affirmed.

      . See State v. Miami Beach Redevelopment Agency, 392 So.2d 875 (Fla.1980).

      . The redevelopment ordinances or regulations are actually zoning ordinances. Zoning Ordinances, City of Miami Beach, § 22.


author: DAUKSCH, Judge. ORFINGER, Chief Judge,

text:
    Eddie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1437.
    District Court of Appeal of Florida, Fifth District.
    Jan. 5, 1983.
    George L. Winslow, Jr., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION FOR REHEARING

DAUKSCH, Judge.

In a motion for rehearing the appellant very strongly suggests this court has shirked its duty and by issuance of a “PCA” failed to recognize that an important legal issue is involved in this case.

This is not so. The reason we affirmed the judgment without a written opinion is because all we could have said in the written opinion would be that the appellant failed to raise the alleged error at the trial court before raising it here and that the record before this court does not show the trial judge to have committed error. What good purpose would be served by our saying that? The appellee has pointed it out in its brief. Who would benefit by our publicly pointing to counsel’s failure to raise his objection below, as he is bound to do? He has said in his brief that the question on appeal is a fundamental, jurisdictional error but the appellee has furnished us with a document which refutes the appellant’s allegations. Thus, it was incumbent upon appellant to offer us record proof that his allegations are true.

The assertions of the appellant to the contrary notwithstanding, this court is ever vigilant for reversible error and ever mindful of its duty to protect the due process rights of all persons accused of crimes. There are certain standards we must apply in reviewing judgments. One of those is that the issues have to be squarely set out and substantiated by the record on appeal. This was not done here.

Finally, because appellant’s allegations concern a lack of jurisdiction in the trial court the appellant may still obtain relief if he can prove his allegations in the trial court or substantiate them here. See Fla.R. Crim.P. 3.850.

MOTION FOR REHEARING DENIED.

COBB, J., concurs.

ORFINGER, C.J., concurs specially with opinion.

ORFINGER, Chief Judge,

concurring specially.

This is not the first time it has been urged upon us that a written opinion was needed after we had affirmed the trial court, per curiam, without opinion. Neither do I think this will be the last time, although counsel should carefully reflect on the many reasons for an appellate court not writing an opinion in each case. As far back as 1928, the Florida Supreme Court noted that when the points of law on which an appeal is predicated are well settled and a discussion of them would serve no useful purpose, the decision below would be affirmed without opinion. City of Miami Beach v. Poindexter, 96 Fla. 811, 119 So. 136 (1928). Since then, to handle the burgeoning appellate case load, first three district courts of appeal were created, then a fourth, and later a fifth. The ever growing volume of appeals makes it impossible and impracticable to write opinions in every case, nor, as already pointed out, does an opinion serve a useful purpose in every case. In Foley v. Weaver Drugs, 172 So.2d 907 (Fla.3d DCA 1965), although in a different context, the court noted that:

Omitting opinions in a minority of af-firmances is customary with appellate courts. It is a useful, if not essential practice of a busy appellate court such as this, where the judges are each faced with a need to write more than a hundred opinions annually. Thus, opinions generally are dispensed with upon affirming cases which do not involve new or unusual points of law, or which turn on facts to which established rules of law are applicable, or where a full or adequate opinion has been supplied by the trial judge; and where the writing of an opinion would be without useful purpose, serving only to satisfy the parties that the court adverted to the issues and gave them attention, and to add needlessly to an already excessive volume of opinions.

Id. at 908, f.n. 2.

That statement was written in 1965. It is no less appropriate today. I agree that the petition for rehearing should be denied.

      . Some judges and lawyers have concluded that the appellate overload could best be reduced by implementing a system of selective publication of opinions. See, e.g., Anstead, Selective Publication: An Alternative to the PCA; 34 U.Fla.L.Rev. 189 (1982). As pointed out there, a proposal to institute a system of selective publication of opinions in Florida has been unanimously rejected by the Appellate Rules Committee of the Florida Bar. In this writer’s opinion, selective publication would enhance, rather than alleviate, appellate overload problems, because wherever the system is used, there is usually a concomitant requirement that an opinion of some kind be written in every case, even if not for publication.


author: RYDER, Judge.

text:
    Ralph ARNOLD and Sarah Arnold, his wife, Appellants, v. SOUTH CAROLINA INSURANCE COMPANY, Appellee.
    No. 81-2207.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    Rehearing Denied Jan. 31, 1983.

      Jefferson deR. Capps, St. Petersburg, for appellants.
    Gary W. Nicholson of Carson & Guem-mer, Tampa, for appellee.
   RYDER, Judge.

The Arnolds appeal dismissal of their declaratory complaint seeking personal injury protection benefits from South Carolina Insurance Company.

Appellants’ complaint below alleges that appellee insurer had issued them an automobile insurance policy. While Ralph Arnold was crossing a street with a coworker, two vehicles traveling nearby collided. One motor vehicle, out of control, appeared about to hit appellant. Appellant’s companion saw the vehicle, pushed appellant out of the vehicle’s path and jumped out of the way himself. Appellant was knocked to the pavement by his rescuer and suffered the injuries complained of. Upon application for personal injury protection benefits from appellee, appellee refused the claim. Appellants settled the liability claim directly with the insurer of the offending vehicle.

The court below dismissed appellants’ declaratory complaint, finding that the relief sought was precluded by statutes and case law pertinent to personal injury protection benefits. On appeal, appellants suggest that while Ralph Arnold was not actually hit by the vehicle, actual physical contact with a defined motor vehicle is not necessary for entitlement to personal injury protection benefits. Appellants argue that traditional causation is necessary for benefits to accrue. Since the errant vehicle caused appellant’s injury, benefits are due.

We agree that insurance benefits are due below. Section 627.736(4)(d)(l), Florida Statutes (1981), provides that for an insured not occupying a motor vehicle, personal injury protection benefits are payable if the injuries were caused by physical contact with a motor vehicle. The Florida Supreme Court has stated that while actual physical contact is not necessary, traditional tests of causation must be met. Lumbermens Mutual Casualty Co. v. Castagna, 368 So.2d 348 (Fla.1979). However, the statutory language of “physical contact” is not completely without meaning. The physical contact contemplated by the statute is satisfied if the injury results from a collision with a motor vehicle. Negron v. Travelers Insurance Co., 282 So.2d 28 (Fla. 3d DCA 1973).

That there was no actual physical contact between the pedestrian and defined motor vehicle is not determinative of coverage. Royal Indemnity Co. v. Government Employees Insurance Co., 307 So.2d 458 (Fla. 3d DCA 1975). The facts alleged below show a collision involving two motor vehicles. One of those vehicles, out of control, then caused appellant’s injuries. The injuries thus resulted from a collision. Unlike Lumbermens Mutual Casualty Co. v. Castagna, supra, causation is not at issue from the facts alleged below. We see no distinction between the physical contact between two vehicles below and the physical contact of a motor vehicle striking a parked vehicle in Royal Indemnity, supra. Both “physical contacts” set in motion events which “caused” injury. That is all the statute requires.

We agree with appellee that the complaint states no cause of action for personal injury protection benefits on behalf of Sarah Arnold, and we AFFIRM the dismissal as to her. The dismissal of Ralph Arnold’s complaint is REVERSED and the case REMANDED for further proceedings.

HOBSON, A.C.J. and BOARDMAN, J., concur.


author: CAMPBELL, Judge.

text:
    Patrick HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-805.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 1983.
    Rehearing Denied Jap. 31, 1983.
    Jerry Hill, Public Defender, Bartow, and Bryan E. Hopkins, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

Appellant seeks review of the trial court’s order revoking his probation and sentencing him to fifteen years imprisonment. We reverse upon a finding that the evidence is insufficient to demonstrate that appellant willfully violated his probation.

Appellant was charged with violating the instruction of his probation officer that he not telephone or communicate with the relatives of the victims of the crime for which appellant was initially convicted. One of the victims was the former girlfriend of appellant. During appellant’s revocation hearing, the state introduced evidence that a telephone trace had been placed on the telephone in appellant’s parents' home, with whom he lived, and on the home telephone of Mrs. Thompson, the grandmother of a victim. The trace revealed only that a telephone call had been placed from appellant’s parents’ home to the Thompson home at 5:45 a.m. The trace did not indicate the length of the call or the voice of the person who placed the call.

Mrs. Thompson, who answered the telephone call in question, testified that the caller hung up the telephone immediately after it was answered. Hence, she was unable to detect a voice or comment that would have enabled her to identify the caller. Appellant’s mother and father also testified. Appellant’s father stated that he could not have placed the call because he was at work when the call was made. Appellant’s mother, however, testified that she may have inadvertently placed the call because the Thompson number was listed in her home directory directly below the name of appellant’s sister. She admitted to having made such errors in the past. Appellant also testified that he may have mistakenly dialed Mrs. Thompson’s telephone number because he regularly telephoned his current girlfriend in the early morning hours.

In achieving the revocation of a defendant’s probation, it is incumbent upon the state to establish that the defendant willfully violated the terms of his probation. Shaw v. State, 391 So.2d 754 (Fla. 5th DCA 1980); Chatman v. State, 365 So.2d 789 (Fla. 4th DCA 1978). The facts underlying the immediate proceeding, however, fail to support a finding that the state satisfied its burden of proof. The record does not demonstrate that appellant placed the call to the Thompson residence.

Accordingly, the order finding that appellant violated his probation is reversed, and the case is remanded with directions to restore appellant to his original term of probation.

RYDER, A.C.J., and SCHOONOVER, J., concur.


author: LARRY G. SMITH, Judge. JOANOS, Judge,

text:
    PAN-AM TOBACCO CORPORATION, d/b/a Pan-Am Vend-Tronics, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    No. AK-30.
    District Court of Appeal of Florida, First District.
    Jan. 7, 1983.
    Rehearing Denied Feb. 10, 1983.

      Steven L. Schwarzberg of Smith & Man-dler, P.A., Miami Beach, for appellant.
    James A. Peters, Asst. Atty. Gen., and Kenneth McLaughlin, Certified Legal Intern, Dept, of Legal Affairs, Civ. Div., Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

This is an appeal from an order of the circuit court granting the Department’s motion for summary judgment on the grounds that sovereign immunity bars recovery by Pan-Am Tobacco Corporation (Pan-Am) for breach of contract as a matter of law. We affirm.

Early in 1978, Pan-Am entered into six identical vending machine contracts with six correctional centers under the jurisdiction of the Department. The contracts were each for a period of five years, and provided for the placement of vending machines at the centers containing candy, snacks, hot beverages, cold canned beverages and cigarettes. The contracts also provided for Pan-Am to pay commissions to the respective correctional centers on the vending machine sales. All of the contracts contained a provision that the institutions had the right to cancel the agreement upon sixty days written notice should Pan-Am’s service be deficient. However, the contracts further provided that this notice could be given only after Pan-Am had been advised in writing by the respective correctional institution of the deficiency, and had been given thirty days to correct the deficiency.

On May 23,1979, the Department’s superintendent of community facilities wrote Pan-Am a letter demanding that Pan-Am remove all its vending machines from the various correctional institutions within approximately thirty days from the date of the letter. Pan-Am removed the vending machines, then filed a six count complaint against the Department, alleging that the Department breached the vending machine contracts by failing to comply with the thirty-day notice provision. Pan-Am claimed damages for loss of income and profits for the balance of the terms of the contracts.

Pan-Am moved for partial summary judgment on the issue of liability, alleging that there was no dispute that the Department had not complied with the notice requirements. In response, the Department contended that sovereign immunity barred this action for breach of contract. The trial court agreed, and entered an order denying Pan-Am’s motion for partial summary judgment. Subsequently, upon motion of the Department, the court entered a summary judgment of dismissal upon the grounds that sovereign immunity bars any action by Pan-Am for damages arising from breach of contract.

Any analysis of the question of the State’s sovereign immunity from contract actions must begin with Article X, Section 13 of the Florida Constitution which provides:

Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.

In past years, this language has been interpreted as providing absolute sovereign immunity to the state and its agencies from actions for breach of contract in the absence of a waiver by legislative enactment or constitutional amendment. Hampton v. State Board of Education, 90 Fla. 88, 105 So. 323 (1925). However, in 1953 the Supreme Court decided Gay v. Southern Builders, Inc., 66 So.2d 499 (Fla.1953), which was apparently interpreted by the bench and bar as permitting suit against the government on a contract theory. Then in Department of Natural Resources v. Circuit Court of the Twelfth Judicial Circuit, 317 So.2d 772 (Fla. 2nd DCA 1975), one of the key decisions in this area of the law, the Second District Court of Appeal revived the concept that sovereign immunity does apply to protect the state and its agencies from suits upon contracts. That case involved a suit by the parents of a child who was attacked and killed by an alligator while swimming in a lake located in a park operated and maintained by the Department of Natural Resources. The suit was brought on theories of negligence, strict liability, and breach of contract. The plaintiffs, citing Gay v. Southern Builders, Inc., urged that the state was no longer immune from suit for breach of contract. But the district court rejected this argument, explaining:

In Gay, supra, Southern Builders entered into a contract with the Board of Commissioners of State Institutions to construct certain buildings for the State of Florida. The Board took the position that the building was not constructed in accordance with the plans and specifications and Southern Builders contended that it was entitled to payment under the contract plus damages for breach of contract. Southern Builders filed a claim with and against the Board. Three persons were named, who were called arbitrators, and held hearings and investigations as to the contentions of the parties. They filed a report with the Board; whereupon, the Board approved for final payment the amounts as recommended by the arbitrators.
The claim as adopted by the Board was presented to the comptroller who paid all the claim except that portion which he decided was for tort arising out of breach of contract. Southern Builders filed suit against the comptroller for payment of the claim in full as it had been approved for final payment by the Board. The circuit court rendered judgment for Southern Builders and the comptroller appealed. We feel the Supreme Court affirmed the lower court on the basis that the claim was approved by the Board for payment; that there was a determination by the Board that the amount ordered paid was just and due by the State to Southern Builders; and that in effect the suit was not a suit against the State for breach of contract but was for the enforcement of a claim previously determined to be due and owing by the State. The suit was actually seeking to enforce the comptroller to comply with the Board’s directions.
There is dicta in the Gay case, supra, which could be interpreted as saying that the State and its agencies are not immune from suit for breach of contract. If this is what Gay, supra, holds, it is in direct conflict with a long precedent of law first set forth in 1895 in Bloxham v. Florida Cent. & P.R., 35 Fla. 625, 17 So. 902, followed by Hampton v. State Board of Education, 1925, 90 Fla. 88, 105 So. 323, and State v. Love, 1930, 99 Fla. 333, 126 So. 374. We have found no case where our Supreme Court has held that under the facts and circumstances of this case the State or its agencies are not entitled to invoke sovereign immunity. 317 So.2d at 774-775.

Based upon its conclusion that the doctrine of sovereign immunity barred actions against the state for breach of contract, the Second District issued a writ of prohibition, holding that the trial court lacked subject matter jurisdiction and should have dismissed the suit. On appeal, the Florida Supreme Court quoted with approval the above language of the court of appeal, adopting this analysis as its own. Circuit Court of the Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113, 1116 (Fla.1976). Thus, in its latest pronouncement on the subject, the Florida Supreme Court has reaffirmed the principle that sovereign immunity exists as a bar to contract actions against the State and its agencies.

Nevertheless, Pan-Am urges that Circuit Court does not control this case since it was limited to its peculiar facts and circumstances. In that vein, appellant urges that under Circuit Court, sovereign immunity acts as a bar to suits on implied contracts but does not bar suits for breach of express contracts. Pan-Am also cites Interair Services, Inc. v. Insurance Company of North America, 375 So.2d 317 (Fla. 2nd DCA 1979), in support of its contention that sovereign immunity does not apply to bar recovery of damages for breach by a state agency of an express written contract.

We believe Pan-Am misapprehends the language in Circuit Court wherein the court “found no case where our Supreme Court has held that under the facts and circumstances of this case the state or its agencies are not entitled to invoke sovereign immunity.” 317 So.2d at 775 and 339 So.2d at 1116. Pan-Am contends that this language manifests the court’s intention to apply the doctrine of sovereign immunity only to bar actions on implied contracts. We disagree. This language as we interpret it, is merely a recognition by the court that there are cases in which the doctrine of sovereign immunity may not properly be invoked. But the court then concludes that the facts and circumstances of Circuit Court do not fall within the parameters of these decisions. In our view, this language does not limit the application of sovereign immunity only to actions for breach of an implied contract.

In Interair Services, Inc., the court held that statutes empowering counties to lease airport premises to private parties, assume hangar maintenance obligations and enter into contracts to do so, constituted a waiver of sovereign immunity so as to permit an action by Interair to recover damages for loss of property in a fire caused by the county’s failure to perform its inspection and maintenance obligations under the lease. Although not a part of its holding, the Interair opinion in footnote 1, expressed the view (at the same time noting that it is an “extremely close question under Florida law”) that the doctrine of sovereign immunity does not apply to bar a contract action against a county based upon the breach of an express contract. Pan-Am understandably relies on this language for the proposition that the doctrine of sovereign immunity does not apply in this case as well. Again, we cannot agree.

We doubt that this language, tucked away in a footnote, has the force and effect suggested by Pan-Am. The facts of the case under consideration did not require the Second District to rule on whether sovereign immunity bars a breach of contract action against counties and it expressly refrained from doing so. See Interair footnote 1, 375 So.2d at 318. Our reluctance to follow this footnote language stems also from the suggestion, found in Circuit Court at 1115, that counties may be treated differently than the state and its agencies for purposes of the application of sovereign immunity. However, we leave for another day and the appropriate case, a decision on this question.

This brings us to Pan-Am’s next argument, that even assuming the applicability of sovereign immunity, sections 20.-315(8)(b) and (11) Florida Statutes (1977), and Rule 33-3.02(3), Florida Administrative Code, provide a waiver of sovereign immunity from suit in this instance. We respectfully disagree. A waiver of sovereign immunity must be clear and unequivocal. Manatee County v. Town of Longboat Key, 365 So.2d 143, 147 (Fla.1978), Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958). There is no express waiver of sovereign immunity in either of these sections. Nor will we infer a waiver from the general statutory language in these sections giving the Department’s Office of Management and Budget the responsibility of purchasing. Spangler, supra, at 424. The statutes in Interair, by contrast, explicitly authorized the county to enter into the contracts which formed the basis for the county’s alleged liability.

Finally, Pan-Am contends that the doctrine of fundamental fairness and estop-pel bar the Department from seeking to avoid liabilities arising out of its breach of express contracts voluntarily entered into by it, and from which it received benefits. In support of this contention, Pan-Am cites State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941). There the court refused to apply the doctrine of sovereign immunity to bar an action by a mill owner for damages caused by the state’s erection of a dam upriver from his mill which raised the water level of the river and reduced the efficiency of the mill by fifty percent. The court reasoned as follows:

If a State agency can deliberately trespass on and destroy the property of the citizen in the manner shown to have been done here and then be relieved from making restitution on the plea of nonliability of the State for . suit, then the constitutional guarantee of the right to own and dispose of property becomes nothing more than the tinkling of empty words. Such a holding would raise administrative boards above the law and clothe them with an air of megalomania that would eternally jeopardize the property right of the citizens. It would reverse the order of democracy in this country and head it into a blind alley.
* * # * * *
In the administration of constitutional guarantees, the State cannot afford to be other than square and generous. To deprive the citizen of his property by other than legal processes and depend on escape from the consequences under cover of the plea of nonsuability of the State is too anomalous and out of step with the spirit and letter of the law to claim protection under the Constitution.

Tharp, 1 So.2d at 869-870.

State Road Department of Florida v. Tharp, is easily distinguishable on its facts. The case involved the wrongful taking of property by the state, whereas this case simply involves an executory contract to provide a vending machine service which the state no longer desires to accept. We are not confronted with an executed contract where a private party has performed but the governmental agency refuses to perform its obligations. Upholding sovereign immunity is not so distasteful under these circumstances.

We decline to apply the doctrine of estoppel in this case. Pan-Am has failed to properly plead the elements of estoppel in its complaint or reply. Cf., Croft v. Young, 188 So.2d 859 (Fla. 1st DCA 1966). Further, estoppel is a remedy which has been sparingly invoked against the government and we see no reason to reverse the trend under the facts of this case.

In view of the considerable confusion which has been generated in this area of the law in past years, and the uncertainty of the applicability of the sovereign immunity defense to breach of contract actions generally, we certify to the Florida Supreme Court, pursuant to Rule 9.030(a)(2)(v), as a matter of great public importance, the following question:

When a state agency improperly rescinds an express executory contract with a private vendor who suffers a loss of profits as a consequence, may the State invoke sovereign immunity as a bar to an action on the breach of contract?

The judgment appealed from is AFFIRMED.

SHAW, J., concurs.

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

JOANOS, Judge,

dissenting in part and concurring in part.

I dissent from the majority’s affirmance of the summary judgment entered by the circuit court. The doctrine of fundamental fairness and estoppel prevent the State from the ability to avoid its responsibilities under an express contract freely entered into by it and from which it has obtained benefits in the past. See Interair Services, Inc. v. Insurance Company of North America, 375 So.2d 317 (Fla. 2nd DCA 1979); State Road Department of Florida v. Tharp, 1 So.2d 868 (Fla.1941).

I concur in the majority’s decision to certify the question set forth in their opinion.

      . Examples of situations in which justice requires that sovereign immunity not be applied were set forth long ago by the Supreme Court in State Road Department of Florida v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941):
      Immunity of the State from suit does not afford relief against an unconstitutional statute or against a duty imposed on a state officer by statute, nor does it afford a state officer relief for trespassing on the rights of an individual even if he assumed to act under legal authority. It will not relieve the State against any illegal act for depriving a citizen of his property; neither will it be permitted as a plea to defeat the recover of land or other property wrongfully taken by the State through its officers and held in the name of the State. It will not be permitted as a City of refuge for a state agency which appropriates private property before the value has been fixed and paid.

      . In distinguishing Butts v. County of Dade, 178 So.2d 592 (Fla. 3rd DCA 1965), the court said: “The case is immediately distinguishable from the instant decision, therefore, as involving a county rather than a state agency.” Circuit Court, 339 So.2d at 1115.

      . Section 20.315(8)(b)10., Florida Statutes (1977), provides:
      (8) OFFICE OF MANAGEMENT AND BUDGET.—
      (b) The Office of Management and Budget shall be responsible for all department-wide functions in the areas of management services, financial services, and management analysis. Further responsibilities shall include, but not be limited to:

      10. Purchasing.
      Section 20.315(ll)(a)7., provides:
      (11) REGIONAL OFFICE OF MANAGEMENT AND BUDGET.—
      (a) There shall be an Office of Management and Budget in each region which shall provide the following administrative support functions to the regional office:

      7. Purchasing.

      .Rule 33-3.02(3), Florida Administrative Code provides:
      Each institution shall provide a canteen or commissary to be operated within the institution for the convenience of the inmates in obtaining items which are not furnished them by The Department of Corrections, but which are allowable within the institution through canteen or commissary purchase. Proceeds from the operation of the canteen or commissary shall be deposited in the Welfare Trust Fund as provided by law ....
      However, we decline to consider this rule as constituting a waiver of sovereign immunity since Article X, Section 13, authorizes waiver only by general law.


text:
    STATE of Florida, Appellant, v. Linda MOORE, Appellee.
    No. 82-1031.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.
    Rehearing Denied Feb. 17, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert J. Watson of Law Offices of Bruce M. Wilkinson, P.A., Stuart, for appel-lee.
   PER CURIAM.

The State appeals from an order granting a sworn motion to dismiss. In determining whether the State has shown a prima facie case so as to successfully resist a motion under Rule 3.190(c)(4), Florida Rules of Criminal Procedure, all inferences are resolved against the defendant and the evidence viewed in the light most favorable to the State. State v. Pettis, 397 So.2d 1150 (Fla. 5th DCA 1981). ■ It is to be presumed that the trial court indulged inferences in that manner. Our examination of the motion and the agreed facts (the latter substituting for a state traverse by stipulation of the parties below) lead us to conclude that while we might have permitted the case to go to the jury were that decision ours initially to make, that determination in the present posture of the case would constitute usurpation of the function of the trial court. We therefore affirm.

AFFIRMED.

HERSEY and WALDEN, JJ., concur.

ANSTEAD, J., dissents without opinion.


text:
    Dewey SHIVER, Appellant, v. APALACHEE PUBLISHING COMPANY, d/b/a the Apalachicola Times, Appellee.
    No. AI-40.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1983.
    Rehearing Denied Feb. 15, 1983.

      Van P. Russell of Watkins & Russell, Apalachicola, for appellant.
    Thomas R. Julin and Talbot D’Alemberte of Steel, Hector & Davis, Miami, for appel-lee.
   PER CURIAM.

From an adverse summary judgment, appellant, the plaintiff below, appeals. Appellant’s complaint contained two counts. The first charged that appellee libeled him by publishing in its final issue prior to Election Day 1980, the following, letter: .

Dear Editor:
What type of government do we live under in Franklin County? In view of the happenings of the last few weeks, I don’t think it is a democracy. It is a sad thing when we can’t run for office without having to fear for our welfare because of threats from Commissioners Varnes and Wade. What are these men afraid of?
Why are Mr. Varnes and Mr. Wade campaigning so hard to have Mr. Messer and Mr. Shiver elected to serve on the Commission with them? Mr. Wade also has said he paid Mr. Collins’ qualifying fees when he ran for office. Why? Before something comes up before the Commission, you can see Mr. Wade driving around two mile area with Mr. Varnes in the truck with him. Why? Does this mean if Mr. Wade and Mrs. [sic] Varnes help get Mr. Messer and Mr. Shiver elected, that they will also ride around with Mr. Wade? To improve our government back to a democracy, we need five minds on our County Commission and not one. I attended school in Franklin County and make my living on the bay and don’t want to see the bay hurt; nor do I think anyone in his right mind who lives in this County wants to hurt our. [sic] I pray that you will vote on Oct. 7 and decide what is best for Franklin County and not what Mr. Wade tells you is best.
Frank Johnson
East Point

The second count charged that the letter was fabricated with the knowledge, consent or participation of appellee, its agents or employees, for the purpose of influencing the electors of Franklin County, and that this activity constituted a violation of Section 104.061, Florida Statutes. Appellant alleged that appellee’s violation of this section breached a duty owed appellant for which appellee should be made to respond in damages. The trial court ruled the letter contained opinions, not false statements of fact, and that appellant had failed to demonstrate that he had sustained any actual damages, and entered judgment in favor of the newspaper. We affirm.

Appellant, as a former officeholder seeking election to a public office, is a public official, and the letter speculates on his possible conduct in office. Therefore, the case is governed by New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). As it was so succinctly put by the Fourth District Court of Appeal:

It thus appears that under the present state of the law concerning an action for libel by a public official, the plaintiff has the burden of showing by clear and convincing evidence that the defamatory statement was (1) a statement of fact, (2) which was false, and (3) made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Palm Beach Newspapers, Inc. v. Early, 334 So.2d 50, 52 (Fla. 4th DCA 1976), cert. den. 354 So.2d 351 (Fla.1977), cert. den. 439 U.S. 910, 99 S.Ct. 277, 58 L.Ed.2d 255 (1978).

We hold that references to appellant contained in the letter were matters of opinion relating to his conduct in office and, as such, are not actionable. Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980); Palm Beach Newspapers, Inc. v. Early. Additionally, appellant testified that he had sustained no damage as a result of the publication, except for the loss of the election. However, appellant was unable to identify anyone who had voted against him because of the letter. Without proof of actual damage, appellant cannot recover. From v. Tallahassee Democrat, 400 So.2d 52 (Fla. 1st DCA 1981), pet. rev. den., 412 So.2d 465 (Fla.1982). Accordingly, the trial court was correct in granting judgment in favor of the appellee as to count one of appellant’s complaint.

Nor did the trial court err in entering judgment in favor of the appellee as to count two of appellant’s complaint. Section 104.061, Florida Statutes, on its face, is confined to nonprotected, clearly criminal conduct. Trushin v. State, 384 So.2d 668 (Fla. 3rd DCA 1980). Nor do we think that this statute, aimed at protecting the integrity of the electoral process, id., creates a duty for the benefit of seekers after public office so as to confer a right of action on defeated candidates. See, Girard Trust Company v. Tampashores Development Co., 95 Fla. 1010, 117 So. 786 (1928); Piezo Technology v. Smith, 413 So.2d 121 (Fla. 1st DCA 1982); Brooks v. Southern Bell Telephone and Telegraph Company, 399 So.2d 1, 3 (Fla. 4th DCA 1981) (Judge Glickstein dissenting); Zorick v. Tynes, 372 So.2d 133 (Fla. 1st DCA 1979).

AFFIRMED.

LARRY G. SMITH, JOANOS and THOMPSON, JJ., concur.


author: WENTWORTH, Judge.

text:
    CITY OF WILLISTON, d/b/a Williston Memorial Hospital, Petitioner, v. Roy ROADLANDER, as Personal Representative of the Estate of Ruby I. Roadlander, deceased, Respondent.
    No. AM-260.
    District Court of Appeal of Florida, First District.
    Jan. 14, 1983.

      Edwin C. Cluster, of Ayres, Cluster, Curry, McCall & Briggs, Ocala, for petitioner.
    Patrick H. Perry, of Avera & Stripling, Gainesville, for respondent.
   WENTWORTH, Judge.

Petitioner seeks to invoke our cer-tiorari jurisdiction to review an order denying petitioner’s motion for a protective order limiting discovery. We find that the court below departed from the essential requirements of law and that relief by appeal from a final judgment would be inadequate, and we therefore grant certiorari review pursuant to Fla.R.App.P. 9.030(b)(2)(A).

Petitioner is a health care facility owned and operated by the City of Williston; respondent is the personal representative of a deceased patient who had received treatment in the hospital. Respondent brought a negligence action against the hospital and two treating physicians, and sought to discover various documents within the hospital files. Petitioner moved for a protective order, alleging, among other contentions, that respondent’s discovery request embraces confidential materials privileged by § 768.40(4), Florida Statutes. This enactment provides that the proceedings and records of medical review committees

shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee ....

The trial court recognized that § 768.40(4) prohibits the discovery of medical review committee proceedings and records, but reasoned that when the hospital is a public health care facility such materials are nevertheless available to the general public pursuant to Chapter 119, Florida Statutes, the Public Records Act. The trial court therefore denied the motion for a protective order since respondent is “a citizen ... of the general public .... ”

Chapter 119 provides for inspection and examination of public records except that records “which are presently provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt ...” from inspection. See § 119.07(3). Section 768.40(4), Florida Statutes, expressly exempts medical review committee records from discovery, and while respondent is indeed a member of the general public, which has been held entitled to inspection of such records pursuant to Chapter 119, we construe § 768.40(4) as precluding discovery made under the guise of a public records act inspection by one who has come within the prohibition of § 768.40(4) against discovery “in any civil action against a provider .... ” The specific enactment is, by this construction, given its expressed effect to preclude all “discovery” of the records by respondent while he is involved in such an action. We therefore conclude that the lower court erred in failing to grant petitioner’s motion for a protective order insofar as respondent’s discovery request encompasses medical review committee records.

Petitioner also contends that respondent’s discovery request includes “work product” embraced within the attorney-client privilege of § 90.502, Florida Statutes, and thereby exempted from inspection under the Public Records Act. The trial court relied on Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979), and ruled that work product is not an exception to inspection under Chapter 119. Wait established that exemption from Chapter 119 inspection is dependent upon statutory privilege, rather than common law or judicially created doctrines. Section 90.502, Florida Statutes, enacted subsequent to the decision in Wait, provides an attorney-client privilege as to “confidential communications” between lawyer and client. However, confidentiality of work product is a separate doctrine based on public policy considerations, and is not strictly within the ambit of the attorney-client privilege. See generally, Atlantic Coastline Railroad Co. v. Allen, 40 So.2d 115 (Fla.1949); also see Surf Drugs Inc. v. Vermentte, 236 So.2d 108 (Fla.1970); Shell v. State Road Department, 135 So.2d 857 (Fla.1962). We therefore conclude that the § 90.502 attorney-client privilege for confidential communications does not encompass work product, cf., Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982), and the lower court did not err in the present case by ruling that the asserted work product privilege does not preclude access to documents otherwise subject to Chapter 119. inspection.

Petitioner’s other assertions are without merit. Accordingly, the order is reversed and the cause remanded with directions that the lower court grant petitioner’s motion for a protective order insofar as respondent’s discovery request encompasses medical review committee records; the order is otherwise affirmed.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH, J., concur.

      . While an order denying discovery does not warrant the exercise of our certiorari jurisdiction, see Esman v. Board of Regents, 425 So.2d 156, Case No. AM-340 (Fla. 1st DCA, opinion filed 1983), the present case involves an order which effectively permits discovery; in such circumstances relief by appeal will be inadequate and our certiorari jurisdiction may be invoked upon a departure from the essential requirements of law. See Bouchar v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957).

      . See Gadd v. News-Press Publishing Co., 412 So.2d 894 (Fla. 2d DCA 1982), a mandamus proceeding directly invoking Chapter 119 as authority for inspection of such records by one not involved in “actions specifically covered by § 768.40(4),” p. 896. We do not, in this case which does involve such an action, either agree or disagree with the Gadd conclusion, but leave to a proper case the question of whether we would follow our sister court or conclude that § 768.40(4) renders such records generally confidential under § 119.07(3)(a) in order to prevent nullification of the specific discovery prohibition.


author: BASKIN, Judge. FERGUSON, Judge NESBITT, Judge

text:
    B.L., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1414.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Rehearing Denied Feb. 14, 1983.
    Bennett H. Brummer, Public Defender, and Robert E. Livingston, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

B.L. appeals the trial court’s denial of his motion to suppress his confession. We reverse.

After interviewing the five-year-old victim of an alleged sexual battery, the police contacted B.L.’s mother and scheduled an interview with thirteen-year-old B.L. His mother told the officers she wished to be present during the interview; nevertheless, the officers arrived an hour and a half late, after B.L.’s mother had left for work, and proceeded with B.L.’s interview despite his mother’s absence. The officers did not advise B.L. of his Miranda rights even though he was their “sole suspect” and they had probable cause to arrest him.

At the hearing on the motion to suppress the statements obtained from B.L., the court made no inquiry in conformity with Doerr v. State, 383 So.2d 905 (Fla.1980) to determine why the officers interviewed the child in the absence of his parent; however, we base our reversal on other grounds.

Seeking to uphold the court’s decision permitting the admission of the statement as voluntarily obtained, the state argues that the interview constituted noncustodial interrogation, apparently because the police did not arrest B.L., citing United States v. Mendenhall, 446 U.S. 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The argument lacks merit.

In Alberti v. Estelle, 524 F.2d 1265,1267-68 (5th Cir.1975), cert. denied, 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976), the court adopted a four-factor test for determining whether a person is “in custody” for Miranda purposes:

We have attributed special significance to four factors: (1) probable cause to arrest, (2) subjective intent of the police, (3) subjective belief of the defendant, and (4) focus of the investigation, [United States v. Corolio, 507 F.2d 50, 52 (5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 105 (1975); Brown v. Beto, 468 F.2d 1284, 1286 (5th Cir.1972); United States v. Phelps, 443 F.2d 246,247 (5th Cir.1971); United States v. Montos, 421 F.2d 215, 223 (5th Cir.), cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970)].

In Alberti, the court rested its decision on two prior opinions dealing with custodial interrogation, United States v. Phelps, 443 F.2d 246 (5th Cir.1971) and Agius v. United States, 413 F.2d 915 (5th Cir.1969 )stating:

The Court spoke to the issue of whether Phelps was in custody within the meaning of Miranda as follows:
[I]f the investigation was not focused on the defendant when the officers entered the building, it certainly focused on him a few seconds later when the investigators discovered the illegal weapon in the showcase. We think that the presence of four officers in a man’s place of business holding a weapon which they discovered on the premises and which they have announced is illegal, presents a situation which is intimidating enough to warrant the application of the Miranda privileges and protections. The investigators had probable cause to arrest Phelps, and he had reason to believe that they would do so. Once the officers found the illegal weapon the investigation focused on Phelps, and the panoply of rights enunciated in Miranda became applicable. 443 F.2d at 248.

524 F.2d at 1267.

In Agius ... [t]he Court discussed the question of whether the defendant was ‘in custody’ at the time of the agents questioning in the following language:
[I]t is clear that appellant was deprived of his freedom of action in a significant way at least immediately after the agents saw the toy gun in his car. Assuming that prior to that time the questioning was non-custodial and investigatory, it is beyond the capacity of a reasonable mind to suppose appellant was ‘free to go’ after the discovery of the gun, viewed from whatever standpoint. The discovery of the gun, along with the resemblance between appellant and the robber, established probable cause and focused the identification. It must have made clear to both agents and appellant that the latter was going to be detained unless and until the investigation was clearly to take a different direction. The adversary process had, at least at that point, begun. Thus, the trial court’s findings regarding the admissibility of the statements made by appellant as a result of questioning initiated by the agents in an attempt to explain the presence of the gun are clearly erroneous. 413 F.2d at 918-19.

524 F.2d at 1268.

According to the cited authorities, no single factor renders the setting custodial. On the other hand, all the factors need not be present to establish a custodial setting. A case-by-case analysis is necessary. United States v. Lueck, 678 F.2d 895 (11th Cir.1982).

The principles adopted in Alberti were recognized in earlier cases. For example, in Windsor v. United States, 389 F.2d 530 (5th Cir.1968), the court suppressed an oral confession by a suspect who, prior to questioning in his motel room, was informed that he was not under arrest. The officers had learned of Windsor’s involvement from a co-defendant who furnished the officers with probable cause to arrest, causing the investigation to focus on Windsor. The court stated:

The Government agents’ testimony that Windsor was not a suspect and not under arrest when questioned in his motel room is belied by the facts of the case. We cannot permit Miranda principles to be so easily frustrated. Windsor was definitely the central figure in their investigation and should have been informed of his right to the presence of counsel.

Id. at 534. The court clearly established the sufficiency of probable cause and focus to render questioning custodial.

In the case before us, both probable cause and focus were present. B.L. was the sole, suspect. One officer testified that he had both probable cause and the intent to arrest B.L. According to Alberti, these facts are sufficient to qualify the interview as a custodial interrogation requiring Miranda warnings. See also United States v. Henry, 604 F.2d 908 (5th Cir.1979); United States v. Warren, 578 F.2d 1058 (5th Cir.1978) (en banc).

For these reasons, we reverse the trial court’s denial of the motion to suppress.

FERGUSON, Judge

(concurring).

The result is further compelled by a recent state supreme court case which seems to hold that police questioning can be custodial, requiring that Miranda warnings be given, even in a noncustodial setting, and that the test is, as a matter of law, the intent and purpose of the police without regard for the defendant’s subjective belief. DeConingb v. State, (Fla.1982) (Case No. 61,008, opinion filed October 28,1982).

NESBITT, Judge

(dissenting):

The trial court found that there was no custodial interrogation and, consequently, any concern with Doerr v. State, 383 So.2d 905 (Fla.1975) is misplaced. The best that can be said of the majority view is that ‘hard cases make bad law’; while the worst that can be said is that it intrudes upon the prerogative of the trier of fact, substituting its judgment for that of the trial court, a vice condemned in DeConingh v. State, (Fla.) (Case No. 61,008, opinion filed October 28,1982).

        Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    TURNBERRY TOWERS CORP., Turnberry Corp. and Flagship National Bank of Miami, Appellants, v. Felix MECHOULAM, Appellee.
    Nos. 81-2165, 81-2426.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 1983.
    Rehearing Denied Feb. 17, 1983.
    Young, Stern & Tannenbaum and Glen Rafkin, North Miami Beach, for appellants.
    Steel, Hector & Davis and Frank P. Scruggs, II, Miami, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

This is an interlocutory appeal from an order awarding attorney’s fees in a specific performance suit. The plaintiff buyer Felix Mechoulam brought suit below for specific performance of a purchase and sale agreement for the conveyance of a condominium unit against the defendants: seller/developer Turnberry Towers Corporation; Turnberry Corporation; and Flagship National Bank of Miami, as trustee of a land trust established by the developer. The purchase and sale agreement contained a clause that provided, in effect, for a stated amount of damages and attorney’s fees for the defendants in the event of a default under the contract. The plaintiff Mecho-ulam obtained a final summary judgment below in his favor and a subsequent order awarding him attorney’s fees under Section 718.125, Florida Statutes (1982), which provides as follows:

Attorney’s fees. — If a contract or lease between a condominium unit owner or association and a developer contains a provision allowing attorney’s fees to the developer, should any litigation arise under the provisions of the contract or lease, the court shall also allow reasonable attorney’s fees to the unit owner or association when the unit owner or association prevails in any action by or against the unit owner or association with respect to the contract or lease.

The defendants appeal.

We are compelled to reverse the order under review upon a holding that the purchase and sale agreement entered into between the parties is not “a contract or lease between a condominium unit owner ... and a developer” within the meaning of the above statute sufficient to support an award of attorney’s fees thereunder. Indeed, at the time the subject agreement was entered into, the plaintiff Mechoulam was merely a potential purchaser of a condominium unit and was in no sense a condominium unit owner within the contemplation of the above statute. We have recently reached precisely this result in Pacheco v. Lincoln Palace Condominium, Inc., 410 So.2d 573 (Fla. 3d DCA 1982), in interpreting an indistinguishably analogous statute [§ 718.303(1), Fla.Stat. (1982) ]. The order under review is, accordingly,

Reversed.