author: BOOKOUT, Judge.

text:
    James R. BELL, alias v. STATE.
    No. 8 Div. 289.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.

      Joe M. Patterson and Donald E. Holt, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   BOOKOUT, Judge.

Second degree murder; sentence: ten years imprisonment.

In the late afternoon hours of March 30, 1979, Dewey Goins was shot by the appellant while supposedly on a picnic at Spring Creek in Tuscumbia. The appellant was arrested and originally charged with assault with intent to murder. However, upon Goins’ death ten days later, he was charged with first degree murder. His trial resulted in a conviction of second degree murder.

The fatal shooting was witnessed by Faye Goins, the deceased’s wife, and Calvin Franks, a friend of the appellant. Both testified at the trial; however, at the beginning of the trial, Franks was too drunk to testify and was confined to jail by the trial judge as the only means of having him sober enough to testify the next day. While the testimony of Faye Goins and Calvin Franks is in conflict on some points, both are nevertheless in agreement that the appellant shot the deceased.

Appellant’s defense was that he and Calvin Franks came upon Mr. and Mrs. Goins near Spring Creek. They thought Mr. Goins was mistreating Mrs. Goins in some manner. Franks thought Mr. Goins was giving Mrs. Goins some type injection although he did not see a syringe and could not tell exactly what Goins was doing. Neither did the appellant see a syringe, nor could he observe what the deceased was doing to Mrs. Goins. Both testified that when they approached the couple, the deceased began cursing and threatening them so they left. The appellant got a shotgun, and he and Franks returned to see what Goins was doing to the woman. Goins again cursed and threatened them and came toward the appellant who then fired the fatal shot.

It appears that all four of the persons at the scene were either drunk or had been heavily drinking prior to the shooting. The eyewitness testimony is in conflict as to whether the appellant threatened to kill Goins before leaving the scene and returning with a shotgun. Likewise, the testimony is in conflict as to whether the unarmed Goins cursed the appellant and rushed toward him when the appellant returned to the scene with a shotgun. Goins’ wife said her husband merely stood up when the appellant approached them and was shot without saying a word. In any event, the evidence is clear that the appellant shot and killed an unarmed man. We therefore find it unnecessary to recite further details as no serious issue exists involving the facts.

During the course of Mrs. Goins’ testimony, she admitted having alcohol problems and being treated for such. However, she denied having drug abuse problems. She stated that her husband had not given her an injection at the scene of the shooting. Defense counsel then thoroughly cross-examined her on the subject of her alleged drug abuse. In that cross-examination counsel used numerous medical records from the Eliza Coffee Memorial Hospital (hereinafter ECM) showing seventeen hospital admissions for alcohol and/or drug abuse on the part of the witness covering a period from 1962 through April 13, 1979. Each of those hospital records was admitted into evidence on behalf of the defense.

The appellant’s only issue raised on appeal concerns itself with the correctness of the trial court’s ruling denying his motion to compel Riverbend Center for Mental Health (hereinafter Riverbend) to disclose records concerning the treatment of Dewey and Faye Goins for alcohol and/or drug abuse. Appellant asserts that the denial of his motion unduly limited his ability to cross-examine Mrs. Goins in that he could not effectively impeach her by contradicting her testimony concerning drug abuse. Thus, he contends the jury was prevented from fully assessing her credibility as a witness.

I

A threshold issue which must be resolved is whether the appellant met the federal procedural guidelines requisite to disclosure of the Riverbend records.

Under 21 U.S.C. § 1175(a) and 42 U.S.C. § 4582(a), records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function or any program or activity relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall be confidential and shall be disclosed only for the purposes and under the circumstances authorized under the above sections. Subsection (b)(2)(C) of each section, supra, states that such records may be disclosed without the written consent of the patient:

“If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.”

Subsection (g) of each section, supra, provides for the promulgation of rules and regulations to carry out the purposes of the section. 42 C.F.R. § 2.64 lists the requisite procedures and criteria governing §§ 1175 and 4582. The relevant procedures and criteria require:

(1) The use of a fictitious identity of the patient in the application for a court order to compel disclosure.

(2) Notice to the patient whose records are requested to be disclosed.

(3) An in camera hearing, unless otherwise requested by the patient, held to determine whether an order should issue compelling disclosure.

(4) A showing of good cause by the party seeking disclosure. In assessing such the trial court is required to weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services.

(5) The need for disclosure due to the absence of alternate sources of information or the lack of other competent evidence.

(6) A showing of lack of adverse effect upon successful treatment or rehabilitation of the patient or effectiveness of the program or other similarly situated programs by disclosure.

A review of the record indicates that the appellant met the first, second, and third enumerated criteria of the federal regulations. As to the fourth criterion, the appellant contends he made a showing of good cause in that he could not effectively cross-examine the witness and impeach her testimony without use of such records. We disagree.

The trial court allowed defense counsel to thoroughly cross-examine Mrs. Goins on the subject of her drug abuse. She was examined at length and in detail about her prior admissions to the ECM Hospital and as to her use of drugs on each such occasion. The question of Mrs. Goins’ credibility, or lack thereof, was clearly put before the jury on that issue. Any further testimony or extrinsic evidence on that subject would have been cumulative, repetitious and somewhat akin to “beating a dead horse.” Consequently, the appellant did not sufficiently establish an overriding necessity for disclosure of the Riverbend records in face of the strong policy of Congress against disclosure pursuant to criteria (4) and (5), supra.

Likewise, there was no showing by the appellant of a lack of an adverse effect upon Mrs. Goins or on the Riverbend treatment programs if disclosure of her records was allowed. Consequently, the appellant failed to meet the requirement of criterion (6), supra.

While there is a paucity of cases in this area, see generally: United States v. Graham, 548 F.2d 1302 (8th Cir. 1977); United States v. Banks, 520 F.2d 627 (7th Cir. 1975); and United States v. Hopper, 440 F.Supp. 1208 (N.D.Ill.1977).

II

This court does not view lightly any limitation on the right of cross-examination because that right is granted by both constitution and statute. United States Constitution, Amend. 6; Article I, § 6, Constitution of Ala. 1901; § 12-21-137, Code of Ala. 1975; Ball v. State, Ala.Cr.App., 337 So.2d 31, cert. quashed, Ala., 337 So.2d 39 (1976). Nevertheless, certain limitations on cross-examination are permissible.

“The trial court has the discretion reasonably to limit the range of cross-examination in respect to collateral and irrelevant matters or with respect to matters that unnecessarily consume time in the trial of the case. It has been said, in regard to the trial court’s right to limit cross-examination, that a trial is not meant to be an eternal phenomenon.” (Footnotes omitted.) Gamble, McElroy’s Alabama Evidence, § 136.01 (3d ed. 1977)

The control of cross-examination is within the discretion of the trial judge after a party has had an opportunity to substantially exercise his right of cross-examination. Dixon v. United States, 333 F.2d 348 (5th Cir. 1964). However, the trial judge may reasonably limit the range of cross-examination on matters that are repetitious, argumentative, collateral, irrelevant, harassing, annoying, or humiliating. Atwell v. State, Ala.Cr.App., 354 So.2d 30, 39 (1977), cert. denied, Ala., 354 So.2d 39 (1977). The right to a thorough and sifting cross-examination does not entitle a party to repeat questions that have already been answered. Proctor v. State, Ala.Cr.App., 331 So.2d 828 (1976).

In the instant case, Calvin Franks stated that it appeared to him that Mr. Goins was giving Mrs. Goins some type of an injection although he could not actually see what he was doing. Mrs. Goins denied receiving an injection. From that, defense counsel sought to show that Mrs. Goins had a record of drug abuse; that, presumably for the purpose of showing that she may have been receiving an injection of some narcotic drug from her husband just prior to the confrontation that led to the shooting.

The entire testimony of Franks on this issue is merely his speculation as to what Goins was doing. He saw no syringe and actually saw no injection take place. If he had seen an injection, it would again only be speculation on his part that a narcotic drug was being administered as opposed to a prescribed drug such as insulin. Therefore, by showing a multitude of hospital records relating to Mrs. Goins’ drug abuse, the appellant would only show her disposition or propensity toward the use of drugs generally. That evidence would not have proved that what Franks thought he saw was what he indeed saw.

The Riverbend records would not prove that Mrs. Goins was taking drugs on the date of the crime thereby impeaching her denial of that assumption by Franks. The only purpose for the Riverbend records was to show that Mrs. Goins was likely to have been under the influence of drugs or alcohol at the time of the shooting and was probably not a credible witness to the crime.

The Riverbend records were not solely necessary for that purpose as the ECM records showed her disposition toward alcohol and/or drug abuse, and in addition she admitted her alcoholic condition and that she had been drinking the night before the shooting. The trial judge, therefore, did not abuse his discretion in refusing to admit the Riverbend records for purposes of further cross-examination on a subject that had been already covered in detail and which was likewise of questionable relevancy to the issue being tried.

AFFIRMED.

All the Judges concur.

      . As to immaterial matter affecting the general credit of a witness as opposed to the credibility of the witness in a particular case, see Clauncy Lumber Co. v. Howell, 260 Ala. 243, 70 So.2d 239 (1954), and Noble v. State, 253 Ala. 519, 45 So.2d 857 (1950).


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    In the Interest of D. B. and D. S.
    No. 56237.
    Supreme Court of Florida.
    May 16, 1980.

      Jim Smith, Atty. Gen., and Janet E. Ferris, Asst. Atty. Gen., Tallahassee, for State of Florida, appellant.
    Stuart Simon, County Atty., and Mark A. Dresnick, Asst. County Atty., Miami, for Dade County.

      Melvin S. Black, Miami, for Robert Singer and Robert Smith.
    John B. Kelley, Chairman and Jennifer Hurst, Dade County Bar Ass’n, Circuit Court-Juvenile Committee, Miami, for in-tervenor.
   OVERTON, Justice.

This appeal by the State of Florida is from circuit court orders directing the state to pay attorney’s fees for representation of both indigent children and parents in all juvenile dependency proceedings. The orders by the circuit court held that the state must provide this legal representation as a fundamental constitutional right under the due process clause of the Florida Constitution and the United States Constitution. This finding was based on the decision of the United States District Court for the Southern District of Florida in Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977).

The holding of the circuit court in the instant cases directly construed the Florida and the United States Constitutions. The circuit court order, which was precipitated by the federal district court decision, affects all juvenile dependency proceedings in Dade County, which total approximately 2,000 annually, and could affect the 20,000 annual dependency proceedings statewide. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

We reject the holdings of both the state circuit court and the United States District Court that all indigent participants in juvenile dependency proceedings are entitled, as a fundamental right, to have counsel supplied to them by the state. We find that a constitutional right to counsel necessarily arises where the proceedings can result in permanent loss of parental custody. In all other circumstances the constitutional right to counsel is not conclusive; rather, the right to counsel will depend upon a case-by-case application of the test adopted in Potvin v. Keller, 313 So.2d 703 (Fla.1975). We recognize that in all instances the trial court must ensure that proper notice and an opportunity to be heard be provided to the participants. We find that when counsel is constitutionally required, the county, rather than the state, must compensate appointed counsel under a formula which recognizes both the obligation of the government to provide counsel and the obligation of the legal profession to represent the poor. As a result of these findings, we direct the judiciary of this state to follow the views expressed in this opinion rather than the views expressed by the United States District Court in Davis v. Page. We find that the federal district court should have refrained from passing on this new constitutional right and allowed the claim to be presented in the state system.

Factual Circumstances

To fully explain these conclusions, it is necessary to set forth the specific facts of each of these two separate dependency causes.

At age five D. B. was surrendered by her mother to Catholic Services Bureau, Inc., for permanent commitment and adoption. The mother had been a prostitute and a heroin addict, and the child was born with a heroin addiction. The natural father was never married to the mother. At the time of the commitment proceedings, the father was incarcerated in the Florida state prison system for burglary, and was wanted in New Jersey for violation of parole. Approximately four months after surrender of the child, the mother sought to set aside her surrender of the child. In the trial court proceedings she was represented by Legal Services of Greater Miami, Inc. That representation is not in issue in these proceedings. Both the natural mother and the natural father sought custody of the child. The trial court appointed private counsel to represent the imprisoned father of this child, and appointed another private counsel as guardian ad litem for the child. The trial court found both natural parents to be unfit, stating:

[T]he Court finds that the said [mother] and [father] are unfit by reason of conduct, lifestyles and circumstances which have resulted in actual and constructive abandonment, abuse and neglect of the child, and it is manifestly in the best interest of the child that the parental rights of the natural parents be terminated.

Following the entry of this judgment, the trial court entered an order directing the State of Florida to pay $1,090 to the attorney representing the father of the child and $1,000 to counsel acting as guardian ad litem for the child.

The second dependency action, for D. S., commenced when the child was nine months old because the child’s mother, age 16, had abandoned him at his grandmother’s home and was threatening to burn down the grandmother’s house. The sixteen-year-old mother was taken into custody and detained in the juvenile detention center. Temporary custody of the child was sought by the Department of Health and Rehabilitative Services (HRS). Private counsel was appointed to represent the indigent mother in these temporary custody dependency proceedings. In addition, separate private counsel was appointed guardian ad litem for the child. The trial court found the child dependent and committed him to the temporary custody of HRS, with the understanding that the child eventually would reside with the teenage mother. This custody was subject to the continuing supervision of HRS to ensure proper care of the child. Subsequent to the entry of this temporary order and upon motion of appointed counsel, the trial court directed the State of Florida to pay $400 to counsel for the teenage mother and $285 to the guardian ad litem for the nine-month-old child.

In his order directing payment of attorney’s fees in the instant cases, the trial court held:

The Judges of the Juvenile and Family Division of the Eleventh Judicial Circuit were named as defendants in a federal class action styled Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977). The plaintiffs in that suit were Hilary Davis and all indigent parents who have been, or may be, defendants in child dependency proceedings in the Juvenile and Family Division of the Circuit Court of Dade County, Florida and who have not been advised of their right to counsel or afforded counsel at state’s expense. The United States District Court entered judgment in favor of the plaintiffs and against the judges of this Court, and held that indigent parents have a constitutional right to appointed counsel in dependency proceedings. . . . [T]his Court must comply with the judgment of the federal court until and unless the decision is reversed or vacated, notwithstanding [sic] the fact that the Florida Supreme Court has reached a contrary conclusion in Potvin v. Kelley [sic], 313 So.2d 703 (Fla.1975). See U. S. Constitution, Art. VII, Cl. 2. This Court, therefore, holds that unless Davis v. Page is reversed on appeal, all indigent parents in dependency proceedings brought in this Court pursuant to Chapter 39, Florida Statutes, have a right to appointed counsel.
As a result of Davis v. Page, this Court also appoints attorneys as guardians ad litem to represent children of indigent parents in dependency proceedings when the Court determines that the appointment of a guardian ad litem is necessary to protect the child’s interests. The Court is mindful that the Florida Supreme Court has held that the constitutional right to counsel is mandatory only in juvenile proceedings which concern a possible adjudication of delinquency. In the Interest of Hutchins, 345 So.2d 703 (Fla.1977). Hutchins, however, cannot be controlling since this Court is now required by Davis to provide counsel to indigent parents in dependency proceedings. It is inconceivable to this Court that while it is required to appoint counsel for indigent parents in dependency proceedings, that an indigent child, whose interests may be adverse to the desires of his parents and the State, would not have an attendant right to appointed counsel. Since the Court is required to provide counsel for parents, the Court therefore holds that unless Davis is reversed on appeal, the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution as well as the due process provisions contained within Article I, Section 9 of the Florida Constitution, require the Court to appoint counsel to serve as guardians ad litem for children in dependency proceedings when the Court finds that such an appointment is necessary in order to protect the intersts [sic] of the child. . [Emphasis supplied.]

No better hypothetical script could have been written to set forth the problems of dependent children than is illustrated by these two factual situations. The principal issues are what legal representation is constitutionally required, and in what manner attorneys should be compensated when appointed to represent indigent parties in dependency matters.

Bight to Counsel

The right of an indigent party to have counsel furnished in a legal proceeding is dependent upon the nature of the proceeding. This is an evolving constitutional issue which concerns the application of the sixth and fourteenth amendments of the United States Constitution.

In a series of well-publicized cases, the United States Supreme Court has found that a constitutional right to government-furnished counsel is mandated whenever imprisonment can be imposed. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)(right to counsel in a death case); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel for noncapital serious offenses); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (right to counsel in juvenile delinquency proceedings where the issue concerned the commitment of a juvenile for criminal conduct); and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (right to counsel for petit offenses whenever imprisonment could be imposed). On the other hand, the United States Supreme Court has rejected the absolute constitutional right to counsel in other civil and criminal matters. It rejected a right to counsel for parole revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and similarly rejected such a right for the purpose of seeking discretionary appellate review of criminal cases in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). In Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), in a proceeding terminating welfare payments, Justice Brennan rejected a procedural due process right to counsel, saying: “We do not say that counsel must be provided at the pre-termination hearing, but only that the recipient must be allowed to retain an attorney if he so desires.” 397 U.S. at 270, 90 S.Ct. at 1022.

We believe it is important to note that the right to counsel, as it has been presently established by the United States Supreme Court, applies only in criminal cases and flows principally from the sixth amendment right to counsel, applied to the states through the fourteenth amendment, rather than from the fourteenth amendment due process guarantee. Right to counsel in dependency proceedings, on the other hand, is governed by due process considerations, rather than the sixth amendment. The extent of procedural due process protections varies with the character of the interest and nature of the proceeding involved. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

The decision of the United States District Court in Davis directs circuit judges sitting on juvenile delinquency matters in Dade County, Florida, to provide counsel at government expense for indigent parents in all child dependency proceedings irrespective of the nature of the commitment, be it temporary or permanent. The Davis decision clearly concerned only temporary custody of the child. At the time of the action Ms. Davis had obtained weekend home visits with her son, and prior to the United States District Court’s decision had secured the return of her son subject to continuing supervision under the jurisdiction of the circuit court. The Davis court, based on these facts, held there were fundamental due process and equal protection rights at stake that could be adequately safeguarded only by providing counsel to indigent parents in all dependency proceedings. In so holding, the United States District Court rejected the view of the Ninth Circuit Court of Appeals in Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974), which this Court expressly adopted in Potvin v. Keller, 313 So.2d 703 (Fla.1975).

In Potvin, we stated:

In Cleaver the court indicated that the right to counsel in juvenile dependency proceedings would be determined by the relevant circumstances in each case, and that criteria for offering counsel would include at least (i) the potential length of parent-child separation, (ii) the degree of parental restrictions on visitation, (iii) the presence or absence of parental consent, (iv) the presence or absence of disputed facts, and (v) the complexity of the proceeding in terms of witnesses and documents. The Cleaver criteria not only comport with constitutional due process requirements, they offer a sensible set of guidelines for determining the inherent unfairness of a custody proceeding.

313 So.2d at 706 (footnotes omitted). The Davis court, in refusing to follow the Cleaver doctrine, failed even to discuss the law of this state as set forth in Potvin. The District Court proceeded to set down an absolute rule for the right to counsel at all stages of a dependency proceeding and directed that counsel must be available immediately following the service of the petition or seizure of a child. The circuit court in the instant cases went a step further than the federal judge in the Davis case and extended the right to counsel to the child in a juvenile dependency proceeding, reasoning that if counsel was required for the parents, it should also be required for the child to ensure protection of the child’s interest. We reject Davis and reaffirm Pot-vin, finding the guidelines which it sets forth adequately safeguard the due process and equal protection rights of the parents.

To accurately characterize the proceeding involved, it should be recognized that juvenile dependency proceedings and juvenile delinquency proceedings have distinct and separate purposes. Dependency proceedings exist to protect and care for the child that has been neglected, abused, or abandoned. Delinquency proceedings, on the other hand, exist to remove children from the adult criminal justice system and punish them in a manner more suitable and appropriate for children. We reject the contention that In re Gault, which the Davis court found applicable, requires the appointment of counsel in a juvenile dependency proceeding. The holding in Gault, in our opinion, only requires the appointment of counsel for an indigent child in delinquency proceedings which might result in detention as a punishment. Further, there are numerous types of juvenile dependency proceedings, but all concern the care, not the punishment, of the child. Some provide very temporary types of relief and custody, while other dependency proceedings permanently terminate the custody and care of a child. See § 39, Fla.Stat. (1979); Bell, Dependency Law in Florida, 53 Fla.Bar J. 652 (1979).

We recognize that there is a constitutionally protected interest in preserving the family unit and raising one’s children. Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1976); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Because the interest at stake is so important and fundamental in nature, we recognize, consistent with our holding in Potvin, that a right to counsel may be required in certain circumstances.

We agree in part with the Davis court and the trial judge that counsel is necessarily required under the due process clause of the United States and Florida Constitutions, in proceedings involving the permanent termination of parental rights to a child, or when the proceedings, because of their nature, may lead to criminal child abuse charges. It is our view that under the Cleaver test, counsel will always be required where permanent termination of custody might result, but where there is no threat of permanent termination of parental custody, the test should be applied on a case-by-case basis.

We conclude that where permanent termination or child abuse charges might result, counsel must be appointed for (1) the natural married or divorced indigent parents of the child, (2) the natural indigent mother of an illegitimate child, and (3) the natural indigent father of an illegitimate child when he legally has recognized or is in fact maintaining the child. We reject, however, any requirement for the mandatory appointment of counsel for the father of an illegitimate child who has not legally acknowledged or in fact supported the child.

It should be realized that the possible temporary loss of custody in a dependency matter is no different than what regularly occurs in domestic relation proceedings when custody is an issue.

Where the trial judge finds no constitutional right to counsel under Cleaver, he may nonetheless use his historical authority to provide legal assistance. Further, certain due process requirements must be observed even though counsel is not constitutionally required. All parents must be given notice of a dependency hearing, advised that they have a right to be represented by counsel of their choice, and afforded a period of time to obtain counsel which is reasonable under the circumstances.

Finally, we find there is no constitutional right to counsel for the subject child in a juvenile dependency proceeding. By statute, counsel as guardian ad litem must be appointed in any child abuse judicial proceeding under section 827.07(16), Florida Statutes (1979). In all other instances, the appointment of counsel as guardian ad litem for the child is left to the traditional discretion of the trial court, and should be made only where warranted under Florida Rule of Juvenile Procedure 8.300.

Payment of Counsel Fees

The determination of the respective responsibilities of the legal profession and the government in providing constitutionally required representation for indigents is a new and evolving problem. The common law did not ensure the poor a right to counsel; rather, it was the professional obligation of the American lawyer and his English counterpart to accept an assignment to represent an indigent party when so directed by the court, which occurred in selected and limited cases. Further, there was no right to compensation from the government or any other source for such representation.

The principal question that arises from the advent of a fundamental constitutional right to counsel in various classes of cases, which effectively began in 1963 with Gideon v. Wainwright, is whether the members of the bar should now be relieved of their historical responsibility to represent the poor whenever the constitution mandates the right to counsel in a legal proceeding. In establishing a constitutional right to counsel in certain cases, the United States Supreme Court placed the obligation to provide counsel on the government rather than the individual members of the legal profession. There was no intention to place the entire fiscal burden on the legal profession to perform a function which is the constitutional responsibility of the government.

The common law obligation of the profession to represent the poor without compensation has been carried forward in contemporary practice by cases such as United States v. Dillon, 346 F.2d 633 (9th Cir. 1965), cert. denied, 382 U.S. 978, 86 S.Ct. 550, 15 L.Ed.2d 469 (1966), which endorse the historical concept that one who is allowed the privilege to practice law accepts a professional obligation to defend the poor. Some courts and commentators have expressed the contrary view that requiring court-appointed counsel to serve without compensation constitutes an unfair imposition upon the bar and an unfair “taking” of private property in violation of the due process clause.

It is our view that the government has an obligation to provide legal representation when such appointment is required by the constitution, but lawyers should not be totally relieved of their professional obligation to provide legal services to the poor. In the absence of a statutory payment formula, we find that when the appointment of counsel is constitutionally required under Potvin, payment should be made under the formula expressed by the Supreme Court of New Jersey in State v. Rush, 46 N.J. 399, 217 A.2d 441, 448 (1966):

We are satisfied the burden is more than the profession alone should shoulder, and hence we are compelled to relieve the profession of it.
But for the time being at least, we think the members of the bar should contribute something more, despite still other calls upon them for gratuitous service. To that end, the compensation should be less than that expected of a client who can pay. The rate should reimburse assigned counsel for his overhead and yield something toward his own support. In approximate terms the overhead of the average law office probably runs about 40% of gross income. To meet that expense and yield something to assigned counsel, we suggest compensation at 60% of the fee a client of ordinary means would pay an attorney of modest financial success.

When appointment of counsel is desirable but not constitutionally required, the judge should use all available legal aid services, and when these services are unavailable, he should request private counsel to provide the necessary services. Under these circumstances, no compensation is available, and the services are part of the lawyer’s historical professional responsibility to represent the poor.

To the extent' the government must provide fees for appointed counsel, such payment must be made by the county under section 43.28, Florida Statutes (1979). This statutory provision was not considered by the trial court or the parties in this action. Section 43.28 provides: “The counties shall provide appropriate courtrooms, facilities, equipment, and, unless provided by the state, personnel necessary to operate the circuit and county courts.” [Emphasis added.] This section was enacted to aid in the implementation of a new judicial article and was adopted immediately following the amendment of article V in 1972. In our opinion, when appointment of counsel is constitutionally required to represent an indigent, the ease cannot proceed without such an appointment; consequently, such counsel is “personnel necessary ” to operate the court. In such an instance, the trial court may require the county to pay appropriate attorney’s fees for such representation absent any other statutory provision. We note that, the counties are required by statute to pay such fees in criminal matters. §§ 27.53(2), 925.035(6), Fla.Stat. (1979).

Appointment of Counsel in the Instant Cases

In the instant case concerning D. B., the representation of the mother is not in question. The issues concern the appropriateness of the mandatory appointment of counsel for both the father and the child.

In our opinion, the indigent father of D. B. has no constitutional right to counsel. He was never married to the mother, and has neither legally recognized nor supported the child. We do not read Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), as requiring counsel to be appointed in such a circumstance. We recognize that the father is entitled to notice that the child is being permanently committed under section 39.413, Florida Statutes, and is allowed an opportunity to contest the commitment and be represented by private counsel under section 39.406, Florida Statutes. However, we find no statutory authority and no constitutional requirement to provide counsel for this father at public expense.

While we hold that the appointment of counsel to serve as guardian ad litem for a child is never constitutionally required in a dependency proceeding, it was an appropriate appointment under the facts of this case which include the mother’s contest of a prior surrender of the child, the mother’s history as a prostitute and heroin addict, and a father in prison seeking custody-

In the case relating to D. S., the sixteen-year-old mother was entitled to the appointment of counsel for the juvenile delinquency offense associated with the abandonment of her child. Absent the delinquency offense, we find there was no constitutional requirement that counsel be provided at state expense for this indigent mother when only temporary custody and supervision was sought. Similarly, the appointment of counsel as guardian ad litem for the nine-month-old child was not constitutionally required. Further, we find the appointment was not appropriate since the proceedings were instituted by HRS to protect the interests of the child and there were no factors here which would justify the appointment of a guardian ad litem in addition to HRS to safeguard the interests of the child.

Although we find the appointment of counsel for the father of D. B. and the appointment of a guardian ad litem for D. S. to be neither constitutionally required nor appropriate under the circumstances of these cases, we recognize counsel did in fact represent their designated clients at the trial court’s direction with the understanding that they would be paid for their services. Therefore, we find that these causes should be remanded and counsel should be compensated in accordance with the Rush fee formula set forth in this opinion.

Abstention Doctrine

We find it necessary to address the federal abstention doctrine because our views expressed in this opinion do not conform to the decision of the United States District Court in Davis v. Page. The right to counsel in juvenile dependency proceeding has not been addressed by the United States Supreme Court. Further, only one federal appellate court, the Ninth Circuit in Cleaver v. Wilcox, has written on the issue, and we have adhered to their view.

The United States Supreme Court has expressly developed a policy of self-restraint, directing the federal judiciary to avoid interference with state court proceedings and accept jurisdiction only when (a) the claimants have no opportunity to present their federal constitutional claims in state proceedings, or (b) there is bad faith conduct by the state, or (c) the challenged state statute is wholly and flagrantly violative of express constitutional prohibitions, in whatever manner and against whomever an effort might be made to apply it. Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The instant facts do not warrant federal intervention, particularly in light of the recent decision in Moore v. Sims. In Sims the United States Supreme Court reversed a federal intervention declaring unconstitutional the statutory scheme for child abuse proceedings in Texas, including the participants’ right to counsel. The Court said: “Certainly, abstention is appropriate unless state law clearly bars the interposition of the constitutional claims.” 442 U.S. at 425-26, 99 S.Ct. at 2378.

The application of the abstention doctrine does not preclude judicial consideration of an alleged constitutional right; rather, it directs that a proceeding affecting state statutes or a state judicial procedure be resolved first in the state courts, absent bad faith by the state or the lack of a state forum or procedure with which to consider the particular contention. In both the instant case and Davis, there was a direct avenue in the state juvenile dependency proceeding to raise the claim of a constitutional right to counsel. Appellees could have appealed an adverse finding from either a nonfinal order, see Florida Rule of Appellate Procedure 9.100, or a final judgment direct to the Supreme Court of Florida. Art. V, § 3(b)(1), Fla.Const.

Florida courts have historically sought cooperation rather than confrontation with the federal judiciary. This is illustrated by the fact that we were the first state to establish a certification process by which a federal appellate court could certify a question of state law to the Supreme Court of Florida. § 25.031, Fla.Stat. (1979); Fla.R. App.P. 9.510. In this instance, however, we decline to defer to the decision of the United States District Court in Davis v. Page. Conclusion

The instant trial court orders require the state to pay five separate attorneys, in addition to payment of counsel necessary to represent the state. In sum, seven lawyers would be necessary to resolve the issues in these two dependency matters. These factual circumstances illustrate the substantial legal and fiscal impact this trial court decision would have on the 20,000 annual juvenile dependency proceedings in this state. We could foresee that this relatively new civil process of juvenile dependency proceedings, intended to protect abandoned, neglected, or abused children, could be crushed by the combined weight of taxpayer expense for multiple legal representation and the expansion of the process into more formalized adversary legal proceedings. The state might choose not to supply this protection for children unless or until a criminal abuse had occurred.

We have chosen the middle road in this opinion by requiring counsel to be appointed when parents are threatened with permanent loss of custody or when criminal charges may arise from the proceeding, and by applying the Cleaver test on a case-by-case basis in all other circumstances. In our view, this is clearly sufficient to protect both the safety of the children of this state and the constitutional rights of their parents. We direct Florida’s judiciary to follow the dictates of this opinion as it concerns the right to counsel in juvenile dependency matters, until further modification or reversal by this Court or the United States Supreme Court. This directive, however, shall not apply to any Eleventh Circuit judges of the Juvenile and Family Division who might be under a direct, valid order of the federal district court in Davis v. Page until that order is reversed or vacated.

This cause is remanded to the trial court to reconsider the attorney’s fees in accordance with the formula expressed in this opinion and to enter the appropriate orders directing the county to pay such fees when they are established.

It is so ordered.

ENGLAND, C. J., ADKINS, BOYD, SUNDBERG and ALDERMAN, JJ„ and VANN, Associate Justice, concur.

      . This position aligns us with other state courts, all of which have recognized a fundamental right to counsel where indigent parents face a permanent loss of custody. Chambers v.

        District Court of Dubuque County, 261 Iowa 31, 152 N.W.2d 818 (1967); Danforth v. State Dept. of Health and Welfare, 303 A.2d 794 (Me.1973); Reist v. Bay County Circuit Judge, 396 Mich. 326, 241 N.W.2d 55 (1976); In Interest of Friesz, 190 Neb. 347, 208 N.W.2d 259 (1973); Crist v. Division of Youth and Family Services, 128 N.J.Super. 402, 320 A.2d 203 (1974); In Re B, 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288 (C.A.N.Y.1972); State v. Jamison, 444 P.2d 15 (1968); In Re Adoption of R. I., 455 Pa. 29, 312 A.2d 601 (1973); In Re Myricks, 85 Wash.2d 252, 251 Or. 114, 533 P.2d 841 (1975); State ex rel. Lemaster v. Oakley, 203 S.E.2d 140 (W.Va.1974). See Annot., 80 A.L.R.3d 1141 (1977).

      . In so holding, we realize that there are some jurisdictions and commentators who would require appointment of counsel for indigent participants in all dependency proceedings. Chambers v. District Court of Dubuque County, 261 Iowa 31, 152 N.W.2d 818 (1967); Danforth v. State Dept. of Health and Welfare, 303 A.2d 794 (Me.1973); Crist v. Division of Youth and Family Services, 128 N.J.Super. 402, 320 A.2d 203 (1974); In Re Myricks, 85 Wash.2d 252, 533 P.2d 841 (1975); Note, Child Neglect: Due Process for the Parent, 70 Colum.L.Rev. 415 (1970); Comment, The Indigent Parent’s Right to Appointed Counsel in Actions to Terminate Parental Rights, 43 U.Cinn.L.Rev. 635 (1974).

      . E. g., Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973); Dolan v. United States, 351 F.2d 671 (5th Cir. 1965); Sparks v. Parker, 368 So.2d 528 (Ala. 1979); Jackson v. State, 413 P.2d 488 (Alaska 1966); Weiner v. Fulton County, 113 Ga.App. 343, 148 S.E.2d 143 (1966); State v. Keener, 224 Kan. 100, 577 P.2d 1182 (1978); State v. Doucet, 352 So.2d 222 (La. 1977); Scott v. State, 216 Tenn. 375, 392 S.W.2d 681 (1965); See Comment, Indigents’ Right to Appointed Counsel in Civil Litigation, 66 Geo.L.J. 113, 138 (1977).

      . E. g., Bradshaw v. Ball, 487 S.W.2d 294 (Ky.1972); State v. Green, 470 S.W.2d 571 (Mo.1971); Kovarik v. County of Banner, 224 N.W.2d 761 (1975); Smith v. State, 92 Neb. 816, 118 N.H. 764, 394 A.2d 834 (1978); Bedford v. Salt Lake County, 22 Utah 2d 12, 447 P.2d 193 (1968); State v. McKenney, 20 Wash. App. 797, 582 P.2d 573 (1978); Hunter, Slave Labor in the Courts—A Suggested Solution, 74 Case and Com. 3 (July-August 1969); Comment, The Uncompensated Appointed Counsel System: A Constitutional and Social Transgression, 60 Ky.L.J. 710 (1972); See Conference on Legal Manpower Needs of Criminal Law, Report, 41 F.R.D. 389, 415-16 (1966); See generally Note, The Indigent's "Right” to Counsel in Civil Case, 43 Ford.L.Rev. 989 (1975); Annot., 21 A.L.R.3d 819 (1968, 1979 Supp.).

      . See generally Comment, The Abstention Doctrine: Closing the Federal Forum, 29 U.Fla.L. Rev. 1029 (1977). We note that in each prior instance in which a new constitutional right to counsel has been established by the United States Supreme Court, the case passed through the state court system. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.2d 158 (1932).

      . Under the 1980 constitutional amendment, the appeal would proceed through the district courts of appeal rather than going directly to the Supreme Court. See Art. V, § 3, as amended April 1, 1980.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. James C. COLLIER, Respondent.
    No. 58764.
    Supreme Court of Florida.
    June 19, 1980.
    David G. McGunegle, Branch Staff Counsel, and John B. Root, Jr., Asst. Staff Counsel, Orlando, for complainant.
    James C. Collier, Orlando, in pro. per. for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against James C. Collier, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. No petition for review has been filed.

The report of the referee indicates the respondent was extremely dilatory in the administration of an estate and failed to properly comply and respond to orders of the circuit judges responsible for the probate division for Orange County.

The referee recommends the following disciplinary measures be imposed:

IV. Recommendation as to Disciplinary measures to be applied: I recommend that Respondent be (A) suspended from the practice of law for a period of 60 days with automatic reinstatement at the end of the period of suspension as provided in Rule 11.10(3); (B) placed on probation for a period of 2 years and while on probation, he report quarterly the status and progress of every probate and guardianship case being handled by him to the Board of Governors of The Florida Bar; and (C) required to pay the costs [$296.75] of this disciplinary proceeding.

We agree with the referee’s conclusion that respondent has violated disciplinary rules 1-102(A)(5), 6-101(A)(3), 7-101(A)(2), and 7-101(A)(3). Respondent is hereby disciplined consistent with the referee’s recommendation. The suspension shall be effective July 21, 1980, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON and ALDERMAN, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Jan Stewart DUBIN, Respondent.
    No. 58188.
    Supreme Court of Florida.
    June 19, 1980.
    Harris K. Solomon, Branch Staff Counsel, Fort Lauderdale, and James P. Hollaway, Deputy Staff Counsel, Tallahassee, for complainant.
    Jan Stewart Dubin, Sunrise, in pro. per.
   PER CURIAM.

This matter is before the Court on Report of Referee and Petition for Conditional Guilty Plea to violations of article XI, rule 11.13(6)(a) of the Integration Rule of The Florida Bar and Disciplinary Rules 6-101(A)(3), 6-102(A), 7-101(A)(2), 1-102(A)(4), 1-102(A)(6) and 6-101(A)(l) of the Code of Professional Responsibility of The Florida Bar. We approve the Report of Referee and Petition, and hereby reprimand Respondent, Jan Stewart Dubin, for these violations. The publication of this opinion in Southern Reporter shall serve as Respondent’s public reprimand.

Costs in the amount of $386.68 are hereby taxed against the Respondent, payable within 90 days of the Court’s opinion.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Norman T. MITCHELL, Respondent.
    No. 58772.
    Supreme Court of Florida.
    June 19, 1980.

      David G. McGunegle, Branch Staff Counsel, and John B. Root, Jr., Asst. Staff Counsel, Orlando, for complainant.
    No appearance for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Norman T. Mitchell, a member of The Florida Bar, is presently before us on complaint of The Florida Bar and Report of Referee. Pursuant to Rule 11.06 of the Integration Rule of The Florida Bar, the referee’s report and record were duly filed with this Court. No petition for review pursuant to Rule 11.09(1), Integration Rule, has been filed.

The referee recommended a finding of guilt as to eleven of the twelve counts charged in the complaint. Specifically he found that in several cases Mitchell failed to file claims, make court appearances, or prosecute appeals on behalf of his clients. On most of these occasions he did not return monies advanced to him by his clients. Additionally, Mitchell apparently never maintained a trust account for his clients. The referee also found that Mitchell knowingly and willfully issued a check without sufficient funds to cover it.

Finding that Mitchell had violated eleven different provisions of the disciplinary rules one or more times, the referee recommended that Mitchell be disbarred from the practice of law. In recommending disbarment the referee commented:

My recommendation is based on the opinion that each of the separate offenses and complaints proven by the Bar, were it be [sic] an isolated incident, would perhaps justify only a public reprimand or suspension by the Supreme Court. But the totality and frequency of the different complaints evidence to me a reckless and wanton disregard by the respondent for the rights and needs of his clients without any mitigating or exculpatory circumstances.

A review of the record reflects sufficient evidence to support the referee’s recommendation that the respondent be found guilty of eleven instances of violating the Code of Professional Responsibility. Mitchell’s actions reveal a complete disregard of his responsibilities as a lawyer and as an officer of the court. The public has been seriously harmed by his unprofessional conduct. Having repeatedly failed to adhere to the responsibilities of an attorney without any known mitigating reasons, he should be disbarred.

The findings of the referee and his recommendations are adopted by this Court. Accordingly, Norman T. Mitchell is hereby disbarred from the practice of law. The disbarment shall be effective on July 21, 1980, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business.

Costs in the amount of $1,633.12 are assessed against him.

It is so ordered.

ADKINS, Acting C. J., and BOYD, OVERTON, ALDERMAN and MCDONALD, JJ., concur.


author: COBB, Judge. MILLER, ROBERT P., Associate Judge,

text:
    TUTTLE/WHITE CONSTRUCTORS, INC., Appellant, v. MONTGOMERY ELEVATOR COMPANY, Appellee.
    No. 78-1611/T4-163.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Rehearing Denied July 7, 1980.
    Jon M. Wilson of Van Den Berg, Gay & Burke, P. A., Orlando, for appellant.
    Robert W. Smith of Miller & Cooper, P. A., Orlando, for appellee.
   COBB, Judge.

The appellee, Montgomery Elevator Co., as subcontractor, sued Tuttle/White, the general contractor constructing a highrise building, alleging that it was owed a balance of $15,945.00 for elevators installed in the building. Tuttle/White defended and counterclaimed on the basis that the installation was late, allegedly resulting in additional interest incurred by the owner on the construction loan and other damages, for which Tuttle/White had been forced to set-tie with the owner, and for which it sought a set-off against Montgomery.

The case proceeded to a non-jury trial. After the close of Tuttle/White’s defense to Montgomery Elevator Co.’s claim, Montgomery moved to strike all of Tut-tle/White’s evidence relating to damages on the ground that the latter had failed to introduce independent evidence as to the reasonableness of said damages, relying on the case of Charlotte Harbor and Northern Railway Co. v. Burwell, 56 Fla. 217, 48 So. 213 (1908). The trial court granted the motion. Tuttle/White immediately moved to reopen its case to present further damage evidence, and this was denied. Montgomery Elevator Co. then presented rebuttal evidence and rested its case. At this point in the trial, Tuttle/White requested that it be permitted to proceed with evidence as to its counterclaim, which presumably would have included proof of damages attendant thereto. This request also was denied by the trial court.

After closing arguments, the court rendered judgment for Montgomery Elevator Co. for the full amount claimed, plus interest and costs. Tuttle/White’s counterclaim and asserted set-off were denied.

The subcontract between Tuttle/White and Montgomery required a completion date of May 15, 1974, for installation of the elevators, and expressly conditioned payment to the subcontractor on completion of the work as specified in the contract. The state elevator inspector first inspected the elevators on June 4, 1974. Final inspection and approval apparently took place sometime thereafter in June or July. Evidence was introduced at trial to the effect that the failure to complete the elevators by either the original contract date, or the extended date of May 31, caused a delay for the owner of the closing date for the permanent loan, which carried a substantially lower interest rate than the construction loan. Consequently, the owner withheld final payment due Tuttle/White, and they ultimately agreed to a settlement for the construction delay in the amount of $20,-541.98. The items included in the settlement (interest differential, attorneys’ fees, phone charges) and the settlement negotiations were testified to at trial by a representative of the owner as part of the set-off defense by Tuttle/White to Montgomery’s case in chief.

The appellant, Tuttle/White, moved for dismissal of Montgomery’s claim at the close of plaintiff’s case, contending that no prima facie case for recovery had been established, because the proof established untimely performance by Montgomery. Canada Dry Bottling Co. v. K. M. A., Inc., 349 So.2d 846 (Fla.2d DCA 1977). We believe there was sufficient evidence before the trial court for denial of this motion, particularly since the subcontract between the parties provided for the contingency of late performance in the following proviso in ¶ SECOND (f):

Should any delay on the part of the Subcontractor in the prosecution or completion of the work, due allowance being made for the contingencies hereinafter provided for, cause loss or damage to Owner for which Contractor may be liable, or cause any loss or damage to Contractor due to failure to complete the entire building or structure by the date agreed upon between Owner and Subcontractor, Subcontractor shall be liable to Contractor therefor.

We interpret this paragraph of the contract as an agreement by the parties that in the event of late but total completion, Montgomery could recover the contract price for the work subject to any deductions for damages caused by the late completion.

The striking of Tuttle/White’s damage evidence presented in support of its affirmative defense of its set-off, however, was error. The Charlotte Harbor case stands for the proposition that a promise to pay the reasonable value of services or materials is implied when there is no express agreement as to the compensation to be paid, and the burden of proving reasonableness is on the claimant. Here, we are not dealing with the reasonable value of goods or services furnished pursuant to an implied contract, but rather with damages caused by Montgomery’s breach of an express contractual provision. The measure of such damages is the loss naturally and proximately resulting from the breach, or such as may reasonably be supposed to have been within the contemplation of both parties at the time they made the contract as the probable and natural result of the breach of it. See 9A Fla.Jur., Damages § 33 (1972), and cases cited therein.

As to the burden of showing the reasonableness vel non of the damages actually resulting from any breach by Montgomery, we believe the general rule to be that the non-defaulting party must show actual expenditures occasioned by the breach, and then the defaulting party may present evidence to prove waste, extravagance and lack of good faith. R. K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., 219 So.2d 87 (Fla.3d DCA 1969). The burden to show the unreasonableness of actual expenditures occasioned by the breach is on the defaulting party.

Another finding implied by comments of the trial court at the trial was that the evidence did not apportion the damages among other subcontractors who may have contributed to the delay of the project. The uncontroverted evidence before the trial court was that delay was occasioned by Montgomery; there was equivocal evidence that other subcontractors may have contributed to this delay, but the final judgment did not make that finding. Indeed, in trial comments referring to delay damages caused by other subcontractors, the trial court pointedly qualified the word “damages” with the appellation “if any.” In this regard, we believe the law to be succinctly set forth in the 5 Corbin on Contracts Section 999 (1964), as follows:

In all cases involving problems of causation and responsibility for harm, a good many factors have united in producing the result; the plaintiff’s total injury may have been the result of many factors in addition to the defendant’s tort or breach of contract. Must the defendant pay damages equivalent to the total harm suffered? Generally the answer is Yes, even though there were contributing factors other than his own conduct. Must the plaintiff show the proportionate part played by the defendant’s breach of contract among all the contributing factors causing the injury, and must his loss be segregated proportionately? To these questions the answer is generally No. In order to establish liability the plaintiff must show that the defendant’s breach was a “substantial factor” in causing the injury.

Krauss v. Greenberg, 137 F.2d 569 (3d Cir. 1943), cert. den., 320 U.S. 791, 64 S.Ct. 207, 88 L.Ed. 477 (1943); Southern National Bank v. Crateo, Inc., 458 F.2d 688 (5th Cir. 1972); Eazor Express, Inc. v. International Brotherhood of Teamsters, 520 F.2d 951 (3d Cir. 1975), cert. den., 424 U.S. 935, 96 S.Ct. 1149, 47 L.Ed.2d 342 (1976); Vesper Construction Co. v. Rain For Rent, Inc., 602 F.2d 238 (10th Cir. 1979).

Accordingly, we find that the trial court erred in striking the damage evidence of Tuttle/White. The judgment entered herein is reversed, and this cause is remanded for a new trial on the issue of damages suffered by Tuttle/White in respect to its affirmative defense of set-off against the claim of Montgomery; should those damages exceed the claim, then the trial court should award the difference to Tut-tle/White on its counterclaim.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

MILLER, ROBERT P., Associate Judge, dissents with opinion.

MILLER, ROBERT P., Associate Judge,

dissents.

I agree with the majority opinion that Charlotte Harbor and Northern Railway Co. v. Burwell, 56 Fla. 217, 48 So. 213 (1908) is not controlling on the question of proof of damages claimed by way of set-off or counterclaim in this cause.

However, that point involves solely the amount of damages or expenses of the appellant, and in light of the trial judge’s following finding regarding inadequate evidence on causation the question of amount becomes moot. That finding was as follows:

The Court also would point out that there was more than one subcontractor whose job was not completed. There is no evidence whatsoever for this record to try to apportion the damages, if any, occasioned by the other contractors by reason of his delay. So I just want to put it in the record, as I view it, the evidence in this ease.

The evidence is conflicting as to the delays caused by other subcontractors.

It was certainly within the trial court’s province to determine what part of appellant’s delay and, therefore, what part of appellant’s damages, was substantially caused by the appellee. The trial judge found that the delay was caused by several subcontractors and further that there was an absence of such evidence as to what part of the delay was caused by appellee. In the absence of such evidence the court had no alternative but to find for appellee on the question of set-off or damages of appellant. In Travelers Indemnity Co. v. Peacock Const. Co., 423 F.2d 1153 (5th Cir. 1970), the trial judge was faced with the identical question and denied such damages. In that case, the Fifth Circuit Court of Appeals, affirming the trial judge while relying on Florida law, said:

The second item is for damages due to delay. Peacock contends that since the Trial Judge found that some delay in the completion date of the entire project was caused by Murray’s breach, he erred in not allowing damages for extra supervisory personnel needed to make up time, the reasonable rental value of equipment which could not be used on the site until Murray’s contract had been fulfilled, loss of efficiency due to delay, and overtime payments. The Trial Court concluded that Murray’s contributed to the delay in completing the project, and that as a result of the delay in completing the project, Peacock suffered damage in the manners claimed. But the Judge went on to state that “because of the many contributing factors shown for the delay * * * the Court could not ascertain the amount of damages due Peacock from Murray’s other than through the process of mere speculation or conjecture.” On this complex record this finding is not clearly erroneous. F.R.Civ.P. 52(a). And because ‘before damages may be awarded there must be evidence authorizing or justifying the award of a definite amount, which cannot be predicated upon pure speculation,’ Kennedy and Ely Ins. Inc. v. American Employers’ Insurance Co., Fla.Ct.App., 179 So.2d 248, 249, see also Nello L. Teer Co. v. Hollywood Golf Estates, Inc., 5 Cir., 1963, 324 F.2d 669, 672, cert. denied, 377 U.S. 909, 84 S.Ct. 1169, 12 L.Ed.2d 178, the conclusion that no damages should be allowed is supportable. Traveler’s Indemnity Co., supra at 1157.

We must remember that the judgment of the trial court reaches this Court clothed with a presumption in favor of its validity- and if, on the pleadings and evidence before the trial court, there is any theory or principal of law that would support the trial court’s judgment, this court is obliged to affirm that judgment. See Cohen v. Mohawk, Inc., 137 So.2d 222 (Fla.1962).

I would, therefore affirm the judgment below.


author: BROWNLEE, JACKSON 0., Associate Judge.

text:
    Sherye BRADLEY, Appellant, v. Harry BRADLEY, Jr., Appellee.
    No. 00-302/T1-128.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    Rehearing Denied July 7, 1980.

      Patrick W. Gillen, Jr. of Apgar & Gillen, P. A., Deland, for appellant.
    David L. Thomas of Martin, Stanley, May & Thomas, P. A., Deland, for appellee.
   BROWNLEE, JACKSON 0., Associate Judge.

The question presented to the court is whether or not the trial court erred in denying the wife alimony when her need for it was shown and when the husband had an annuity as a result of his military retirement in the sum of $94,500.00, a large portion of the annuity being earned during the fifteen years of marriage in which the wife was principally the homemaker.

The parties had been married for fifteen years, the husband is forty-one years and the wife is thirty-six, the husband being currently retired from the Coast Guard and now attending school to learn to be a mechanic. The wife has not been employed since the early years of the marriage except for a time just prior to retirement when she became employed in order to help pay for a newly acquired house.

The husband was not employed at the time of trial and in fact was attending school, which had no relationship whatsoever to his plans of attending school to become a mechanic. The husband was receiving an educational allotment of $351.00 per month, plus a retirement pension of $373.00 per month. The wife earned $121.00 per week. Considering the husband’s military retirement as an annuity, a financial expert testified that the value of the annuity as an asset was $94,500.00. Including the annuity, the husband had a net worth of one hundred one thousand sixty dollars. The wife had a net worth of three thousand two hundred and sixteen dollars.

Testimony at the time of trial indicated that the wife’s future income would not change except for cost of living increases. It would be nice if the wife could go to college or secretarial school or some other educational facility in order to increase her earning capacity; however, her financial situation coupled with two children at home simply does not afford her that luxury. The question then arises whether the husband, because he does have an annuity, should be allowed to make the election of whether or not to go to school and become educated while drawing the annuity, or whether or not he should be placed in the position of having to also enter the work force for purposes of contributing to the needs of his wife of fifteen years.

The court is well aware of the great weight which must be accorded the findings and award of alimony by the trial court. Palmer v. Palmer, 338 So.2d 86 (Fla. 1st DCA 1976); Dorman v. Dorman, 332 So.2d 358 (Fla. 1st DCA 1976), cert. denied 341 So.2d 1081 (Fla.1976). However, in this case, where the husband is separated from the military service after twenty faithful years, he is rewarded an annuity of equal in value to $94,500.00 against which he may draw for the rest of his life. Whereas the wife, after fifteen years of service to her husband, is awarded two children to continue to look after, plus the husband’s interest in the marital residence which this court views as nothing more than a division of the assets of the parties. We think the disparity is too great to be ignored and consider that an abuse of discretion was shown. The test for the award of alimony is still the need of the spouse seeking alimony and the ability of the other spouse to pay, Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). Earning ability as well as anticipated earning ability may also be considered, Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976), cert. denied, 344 So.2d 324 (Fla. 1977); Fried v. Fried, 375 So.2d 46 (Fla. 2d DCA 1979). The circumstances surrounding this case justify and require the award of permanent periodic alimony, in addition to the lump sum alimony previously awarded by the court, in a sum of not less than $150.00 per month.

Reversed and remanded with directions to modify the final judgment to award the wife permanent periodic alimony, in addition to the lump sum alimony previously awarded by the court, in a sum of not less than $150.00 per month.

REVERSED and REMANDED.

SHARP, J., concurs.

CROSS, J., dissents without opinion.


text:
    GOLDEN GLADES CLUB RECREATION CORPORATION, a Florida Corporation, Appellant, v. ASSOCIATION OF GOLDEN GLADES CONDOMINIUM CLUB, INC., a Florida Corporation not for profit, Appellee.
    No. 79-558.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 7, 1980.

      Cypen & Nevins and Stephen H. Cypen, Miami Beach, Ira M. Elegant, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Ivan S. Benjamin, Miami, for ap-pellee.
    Before SCHWARTZ, NESBITT and DANIEL PEARSON, JJ.
   PER CURIAM.

Appellant, Golden Glades Club Recreation Corporation (lessor), appeals an adverse summary final judgment entered on behalf of appellee, Association of Golden Glades Condominium Club, Inc. (lessee). The effect of the summary final judgment was to deny the lessor’s entire claim for unpaid rent and grant lessee’s counterclaim for declaratory relief which determined that an escalation clause authorizing adjusted rentals based upon the cost of living index contained in a long term lease executed March 14, 1970 had been voided by the enactment of Section 711.231, Florida Statutes (1975). The underlying basis for the declaration of the lessee’s rights was that the long term lease incorporated the Condominium Act, Chapter 711, Florida Statutes (1969) by reference “as it may be amended from time to time.” We affirm on the reasoning and authority of our decision in Kaufman v. Shere, 347 So.2d 627 (Fla.3d DCA 1977). See also Century Village, Inc. v. Wellington, Inc., 361 So.2d 128 (Fla.1978).

The summary final judgment dismissed lessor’s claim for all unpaid rent. We observe that Fleeman v. Case, 342 So.2d 815 (Fla.1976) determined that Section 711.-231, supra, was not retroactive. In Kaufman v. Shere, supra, we determined the cited statute became effective June 5,1975. For these reasons as well as the lessee’s commendable admission that the summary final judgment was overbroad and did not purport to determine the effect of unpaid rent as well as the effect of a release executed between the parties, we partially reverse the summary final judgment which may have foreclosed the parties from presenting testimony and evidence on those issues.

Affirmed in part; reversed in part and remanded.

      . Escalation clauses in leases were declared void under Section 711.236 as created by Chapter 75-61, Laws of Florida [codified as Section 711.231, Florida Statutes (1975)]. Currently, Section 718.401(8)(a), Florida Statutes (1979) encompasses the section referring to escalation clauses in leaseholds.


author: HENDRY, Judge.

text:
    Gertrude CHAFETZ and H. Benjamin Chafetz, Appellants, v. Samuel PRICE, Appellee.
    No. 79-1537.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 11, 1980.

      I. Roger Feldman, Miami Beach, for appellants.
    Ira B. Price, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   HENDRY, Judge.

Appeal to this court was made by the defendants below from a final order commanding their specific performance, as sellers of a Miami Beach condominium, of a land sale contract entered into between the parties two and one-half years ago.

In December, 1977, the appellants and appellee, in Miami and Jacksonville, respectively, signed separate copies of a counterpart purchase and sale agreement for the transfer, by warranty deed, of good and marketable title to the subject property. The closing, originally scheduled for February 1, was delayed by notice of lis pendens, filed in January, 1978, by a third party, one Tenenbaum, pursuant to her suit for specific performance of an alleged preexisting contract for sale of the same condominium.

The appellee agreed to defer closing, so that the appellants could effect a resolution of the Tenenbaum lawsuit, which constituted a cloud on appellants’ title.

A summary judgment was obtained against Tenenbaum on May 16, 1978, from which appeal was taken to this court. That appeal, however, was dismissed sua sponte, on the ground that an order granting motion for summary judgment is neither final nor an appealable interlocutory order. Art. V. § 4(b)(1), Fla.Const.; Fla.R.App.P. 9.130(a)(3); Shupack v. Allstate Insurance Co., 356 So.2d 1298 (Fla. 3d DCA 1978).

In February, 1979, a voluntary dismissal with prejudice, and a proposed order upon stipulation, were negotiated at some expense to appellants, and the appellee was informed in early March that closing would take place as rescheduled for April 16,1979.

The meeting of april 16 did not culminate in a closing. Appellants contend that they were ready to close, but that appellee was not prepared; appellee contends that even if he was not prepared to close at that time, he was legally excused, because appellants were not able to convey marketable title, as required by their December 1977 contract.

On May 2, 1979, appellants submitted their Proposed Order Upon Stipulation to the circuit court for its adjudication, and a closing was arranged for May 31,1979. On that date, appellee was ready, willing and able to close; appellants did not make an appearance.

Appellants claim that title to their condominium was marketable from February, 1979, the date of settlement of the Tenen-baum suit. It is their position that, title being marketable on April 16, appellee’s failure to close on that date constituted a breach of their contract, and excused appellants’ later nonperformance.

The initial question we face is whether the pendency of the Tenenbaum litigation rendered the appellants' title unmarketable. We affirm the trial court’s finding of unmarketability.

[Where] a vendor of real property expressly . . . agrees to convey a good title or marketable title, that undertaking is discharged only by the conveyance of a title unencumbered and free from reasonable doubt as to any questions of law or fact necessary to sustain its validity.

Wheeler v. Sullivan, 90 Fla. 711, 106 So. 876, 878 (Fla.1925), quoted in Walker v. Close, 98 Fla. 1103, 125 So. 521, 524 (Fla. 1929); Peters v. Speilvogel, 163 So.2d 59, 61 (Fla. 3d DCA 1964).

[Marketable title] means not merely a title valid in fact but a title that must be such as to make it reasonably certain that it will not be called in question in the future so as to subject the purchaser to the hazard of litigation . . . . It must be, as is sometimes said, a title which can be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence, and which is not subject to such a doubt or cloud as will affect its market value.

Adams v. Whittle, 101 Fla. 705, 135 So. 152, 155 (Fla.1931) (citation omitted); Model Land Co. v. Crawford, 155 Fla. 323, 20 So.2d 122, 124 (Fla.1944).

Because appellants did not obtain a final order granting summary judgment, the Tenenbaum suit was still pending at the time of the April 16 closing. Had appellee purchased the title interest of the appellants on April 16, he would have faced more than the “hazard of litigation”; he would have purchased title encumbered by a present adverse claim. Such a circumstance is the paradigm of unmarketability.

Having foregone final decision in the circuit court, appellants sought a compromise and settlement with Tenenbaum. It is their position that title to the subject property became marketable when the agreement was reached; appellee contends that the cloud upon title lifted when agreement culminated in the dismissal with prejudice of May 2, 1979.

On these facts, we agree with the court below that title was rendered marketable by the order of dismissal. We note that appellee’s knowledge of the settlement of the Tenenbaum claim was limited, until the order of dismissal was issued, to appellants’ claims that agreement had been reached, and that title was now clear. More importantly, we note that, until May 2, 1979, the title abstract and court records indicated a claim against title, without suggestion that that claim had been withdrawn; we note finally the inability of the appellee, because of appellants’ failure to provide him with a certified copy of the signed agreement of February 16, 1979, to clear the record.

In noting these facts, we keep in mind the distinction between marketable title and record title. DeHuy v. Osborne, 96 Fla. 435, 118 So. 161, 163 (Fla.1928). However, because appellants’ private settlement of the Tenenbaum claim left appellee with proof neither of clear title in appellants, nor of a chain of title to himself (for future purchasers or against future claimants), we hold that appellants’ April 16 tender was of less that marketable title.

Appellants contend that the trial court erred in granting specific performance, rather than damages, to appellee. They point first to the maxim that specific performance of an indefinite contract will not be commanded. However, the trial court found, and we agree, that the terms of the contract were definite and certain.

They argue further that failure of the appellee to close on April 16 precludes his demand for specific performance, because a precondition to equitable remedy is performance of one’s own obligation, or at least a “present readiness, willingness, and ability in good faith to perform the acts required of one . . . .” Martin v. Albee, 93 Fla. 941, 113 So. 415, 416 (Fla.1927); Michigan Avenue, Inc. v. Cambridge Hotel, Inc., 183 So.2d 725, 727 (Fla. 3d DCA 1966). Appellants point in that regard to appellee’s failure to tender either the cash or documents required for closing on April 16,1979.

We find that argument unpersuasive. First, the trial court found, and we have agreed, supra, that title to the subject property did not become marketable until May 2. After the Tenenbaum litigation was dismissed with prejudice on that date, closing was reset for May 31, at which time appel-lee tendered complete performance of the December 1977 terms.

Finally, we note that the May 31 tender of performance was not essential to appel-lee’s demand for equitable remedy. Tender of performance at the April 16 closing would have been useless; equity does not demand the doing of a useless act. Appellants are estopped, by their own lack of readiness or willingness, from defending in equity on the basis of appellee’s nascent failure to perform. Tate v. Pensacola, Gulf, Land & Development Co., 37 Fla. 439, 20 So. 542, 545 (Fla.1896); Wilson v. Odom, 215 So.2d 37, 39 (Fla. 1st DCA 1968).

We have considered all the issues presented on appeal and have concluded that no reversible error has been demonstrated; therefore the judgment appealed is affirmed.

Affirmed.

      . We do not rely upon the pendency of the notice of lis pendens in the abstract of title; it should have been removed by the clerk’s office pursuant to the court’s May 16, 1978 direction to do so, contained in its Order Granting Defendants’ Motion for Summary Judgment. In any event, the effectiveness of that notice statutorily expired one year after it was filed and before the April 16 closing date. § 48.23(2), Fla.Stat. (1979).


author: DANIEL PEARSON, Judge.

text:
    William B. PARHAM, Appellant, v. Janis M. PARHAM, Appellee.
    No. 79-1623.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.

      Roger A. Bridges, Coral Gables, for appellant.
    Betty Kessler, Miami, for appellee.
    Before SCHWARTZ, NESBITT and DANIEL PEARSON, JJ.
   DANIEL PEARSON, Judge.

The husband appeals from so much of a final judgment of dissolution of marriage which provided that he pay to the wife permanent alimony in the amount of $650 per month, that the alimony survive his death and be a charge against his estate, and that he quit-claim his one-half interest in the parties’ marital home as lump sum alimony. Finding the amount of permanent alimony to be excessive, its survival as a charge against the husband’s estate to be unsupported by any pleadings or evidence, and the lump sum alimony award of the husband’s share of the house to be inappropriate, we reverse.

At the time of the proceedings below, William Parham was a dental technician, whose weekly take-home pay was $448, and whose liabilities exceeded his assets by several thousand dollars. Mrs. Parham’s net worth, by contrast, was $15,500. Her stated total monthly needs, including child support for their 16M>-year-old son, was $900. Her health was reasonably good and she intended to seek employment. The only significant asset owned by the parties was the marital home.

Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), instructs us to approach the several alimony provisions of the trial court’s judgment as a whole. Under the judgment appealed from, the husband will retain approximately forty per cent of his take-home earnings after they are reduced by payments of child support and permanent alimony. If the husband were compelled to convey his one-half interest in the marital home as lump sum alimony, he would find himself stripped of all assets and with a negative net worth of approximately $16,000, while the wife’s net worth would be almost $30,000. Were the excessive periodic and lump sum alimony awards allowed to remain in effect, the husband’s incentive to strive forward would be effectively diminished, McAllister v. McAllister, 345 So.2d 352 (Fla.4th DCA 1977), and the husband’s modicum of financial well-being would be transformed to financial misfortune, Canakaris v. Canakaris, supra. We will not hesitate to overturn alimony allowances which exceed the husband’s ability to pay. Blum v. Blum, 382 So.2d 52 (Fla.3d DCA 1980).

We now address that part of the trial court’s judgment making permanent alimony a charge against the husband’s estate. There was neither a pleading nor evidentiary basis for such a ruling. The wife was not elderly or infirm; gainful employment was still within her reach; the husband did not consent; in short, there existed no special circumstance to justify the imposition of this charge. In Re Estate of Freeland, 182 So.2d 425 (Fla.1965); Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964); Ross v. Ross, 341 So.2d 833 (Fla.3d DCA 1977); Payne v. Payne, 201 So.2d 590 (Fla.3d DCA 1967). Cf. Weinschel v. Weinschel, 379 So.2d 145 (Fla.3d DCA 1980); Dutton v. Dutton, 379 So.2d 111 (Fla.3d DCA 1979); Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1978); Blass v. Blass, 316 So.2d 308 (Fla.3d DCA 1975) (holding that in the absence of a special circumstance justifying an award of alimony after death, a trial court cannot order the husband to maintain a life insurance policy for the benefit of the wife).

Accordingly, we reverse and remand this cause to the trial court to redetermine the amount of permanent alimony in accordance with the needs of the wife and the financial ability of the husband. We reverse that part of the judgment awarding the wife as lump sum alimony the husband’s interest in the marital home with directions to the trial court to grant the wife’s request for partition. We reverse that part of the judgment making the permanent alimony award a charge against the husband’s estate. In all other respects, the judgment is affirmed.

Reversed in part; affirmed in part.

      . The written judgment contains no finding that the ordered conveyance is lump sum alimony, but the transcript of the final hearing reflects that this was the trial court’s intention. The husband’s one-half equity interest was worth $13,750.

      . We find no error in the trial court’s grant of permanent rather than rehabilitative alimony. The error lies in the size of the grant.

      . Because we find these rulings of the trial court to be error, we need not reach the question of whether the trial court was motivated by a desire to punish the husband for avoiding the court’s irrelevant inquiry about the name of a person who introduced the husband to his post-separation female companion. The court, inter alia, said to the unrepresented husband: “It is not going to pay you to have a convenient or an inconvenient memory in this court.” Were the husband contemptuous, the court’s power to punish such conduct is circumscribed and does not permit such punishment to be in the form of higher awards to the wife. Rosselle v. Rosselle, 366 So.2d 1197 (Fla.3d DCA 1979); Watterson v. Watterson, 353 So.2d 1185 (Fla. 1st DCA 1977).

      .The husband does not appeal the $100 per week child support portion of the judgment. In considering the husband’s financial capacity, we may, however, take into account his responsibility to support his minor child. Canakaris v. Canakaris, supra.

      . The husband argues that the lump sum alimony award of his interest in the marital home is not only unjustified by the evidence, but impermissible in another respect. The wife’s petition for dissolution, by separate count, specifically requested partition of the marital home. The husband concedes that a request for alimony is sufficient to place him on notice that alimony in any of its several forms, including lump sum, may be awarded by the trial court under Section 61.08, Florida Statutes (1979). Canakaris v. Canakaris, supra. But, he contends, he was specifically on notice by the wife’s partition suit that she did not seek his share of the house as lump sum alimony. We cannot agree with the husband’s argument that the partition request disabused him of any notion that a lump sum alimony award in the marital home could be visited upon him. We fully recognize that proper notice is basic to due process. See, e.g., Versen v. Versen, 347 So.2d 1047 (Fla.4th DCA 1977). But in the present case, the claim for alimony was broad enough to encompass a lump sum alimony award, and it was a necessary alternative for the wife to seek partition. See DiMartino v. DiMartino, 360 So.2d 1133 (Fla.3d DCA 1978). Moreover, even if it could be said that the husband was misled, it cannot be said that he was prejudiced thereby, since his defense to a claim for alimony would be the same as his defense to a claim for lump sum alimony.


text:
    The FOREMOST INSURANCE COMPANY and Osteopathic General Hospital, Appellants, v. HARTFORD INSURANCE GROUP, Appellee.
    No. 79-1898.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Harold C. Knecht, Jr., Coral Gables, and David A. Crowley, Miami, for appellants.
    K. P. Jones, Fort Lauderdale, for appel-lee.
    Before BARKDULL, HUBBARD and SCHWARTZ, JJ.
   PER CURIAM.

The trial court ruled that the hospital’s general liability carrier, rather than its medical malpractice insurer, was required to defend and provide coverage in an action brought against Osteopathic General Hospital by a patient who slipped and fell on a wet floor in her bathroom. We agree and affirm. Zobac v. Southeastern Hospital District of Palm Beach County, 382 So.2d 829 (Fla. 4th DCA 1980).

Affirmed.


author: BASKIN, Judge.

text:
    Eddy OSTANE, Petitioner, v. The Honorable Richard S. HICKEY, Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Respondent.
    No. 80-191.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 18, 1980.

      Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for petitioner.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for respondent.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We grant defendant’s petition for Writ of Prohibition pursuant to the authority of United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), and Bryant v. Stickley, 215 So.2d 786 (Fla. 2d DCA 1968). These cases require the trial court to exercise a sound discretion to assure that, taking all circumstances into account, there was a manifest necessity to declare a mistrial and that no reasonable alternative in the form of a recess existed.

We recognize that the circumstances as they appeared to the trial judge — that an essential state witness had been stabbed in front of the courthouse and that the witness was observed in a pool of blood prior to being taken away in an ambulance — may have suggested the proceedings could not continue in accordance with a fair trial, but defendant’s objection to the declaration of a mistrial obligated the trial judge to consider whether a reasonable alternative such as a recess might not alleviate the problem. Instead, without any inquiry into the seriousness of the witness’s injury or as to the length of time required for the witness’s recovery, the trial judge, over defendant’s objection, declared a mistrial.

Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.

United States v. Jorn, 400 U.S. at 486, 91 S.Ct. at 558, 27 L.Ed.2d 557.

The trial judge acted without proof of a legally sufficient reason to discharge the jury. While illness might be a legally sufficient reason to declare a mistrial and discharge a jury, it is not legally sufficient in this case as the court declared a mistrial without taking any testimony to determine how long the witness would be absent. Bryant v. Stickley, supra. As it happened, the witness would have been available after a short recess, a fact discoverable upon inquiry.

Absent a judicial inquiry and an opportunity for the defendant to cross-examine, no legally sufficient reason permitting the discharge of the jury without jeopardy attaching can be made to appear. To hold otherwise would contravene the rights of citizens as guaranteed and set out ... in Section 12 of the Declaration of Rights of the Florida Constitution.

Bryant v. Stickley, supra at 788-89.

Because the defendant was placed in jeopardy in the first trial, retrial is barred in the absence of any legally sufficient reason for the trial judge to have declared a mistrial.

Having considered the petition, the response, and the reply, we grant the petition for Writ of Prohibition. Issuance of the formal writ is withheld, however, in full confidence that the trial court will discharge petitioner in accordance with the law as set forth in this opinion.

      . We have jurisdiction to entertain this petition. Strawn v. State ex rel. Anderberg, 332 So.2d 601 (Fla.1976); Art. V, § 4(b)(3), Fla. Const. (1972); Fla.R.App.P. 9.100(a).


text:
    Gerald M. SANTUOSO, Appellant, v. McGRATH & ASSOCIATES, INC. and Gail Marie Fournier, Appellees.
    No. 80-370.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Goodwin, Ryskamp, Welcher, Carrier & Donoff and Kenneth Ryskamp, Miami, for appellant.
    Sams, Gerstein & Ward and Richard S. Rachlin, Miami, for appellees.
    Before SCHWARTZ, NESBITT and PEARSON, DANIEL, JJ.
   PER CURIAM.

Santuoso, defendant below, brings this interlocutory appeal to challenge a default entered against him in the trial court. The default was entered as a result of the defendant’s disobedience to the trial court’s order to resubmit to a deposition. We find error and reverse.

Appellee, McGrath, by way of an amended complaint served July 24, 1979, sued Santuoso and co-appellee, Gail Marie Four-nier, seeking to impose a constructive trust against them for conversion of funds allegedly the property of McGrath. Santuoso submitted to the taking of his deposition. However, his refusal to answer certain questions resulted in those questions being certified. On November 5, 1979, Santuoso and Fournier filed their answer to the amended complaint. Santuoso sought and obtained a protective order against the further taking of his deposition until a court-appointed psychiatrist evaluated co-defendant Fournier. In response, McGrath filed a motion to vacate that order along with a motion to compel Santuoso to resubmit to deposition. Prior to the hearing thereon, the attorney of record for Santuoso and Fournier filed a motion to withdraw. On December 19, 1979, the motions were heard and an order was entered which: (1) allowed the attorney of record for Santuoso and Fournier to withdraw; (2) required defendants to retain counsel of record not later than January 8,1980; and (3) required Santuoso to resubmit to the taking of his deposition on January 10, 1980. Santuoso’s former counsel of record was required to and did furnish Santuoso and Fournier with a copy of the order as required therein. Upon Santuoso’s failure to resubmit to deposition scheduled for January 10, 1980, McGrath applied to the trial court for the entry of a default. A copy of that application and notice of hearing was furnished to Santuoso on January 12,1980. On January 18,1980, a hearing was held on the application for default at which time Santuoso’s former attorney of record appeared and, ore tenus, moved for leave to be reinstated as Santuoso’s attorney. The motion was denied and the application for default was granted determining liability in favor of McGrath and against Santuoso and Fournier. On February 20,1980, the former attorney of record for Santuoso filed an affidavit in the trial court which is relied upon in this appeal to demonstrate that Santuoso did not receive notice to resubmit to deposition. In reaching our result in the determination of this appeal, we have not considered this affidavit because it is not properly part of the record on appeal.

By resort to the record, we are persuaded that Santuoso had notice that he was to resubmit himself for deposition, both to answer the questions which had been certified as well as for the purpose of further discovery. Nonetheless, we conclude from consideration of the record that the sanction imposed against Santuoso, in effect determining liability in favor of the plaintiff, was too drastic.

Even in a situation where notice is given to the defendant for the purpose of imposing sanctions, the record must be clear that such a severe sanction is authorized. Owens-Illinois, Inc. v. Lewis, 260 So.2d 221, 226 (Fla. 1st DCA 1972). Florida Rule of Civil Procedure 1.380 contains a variety of sanctions for failure to make discovery but the striking of pleadings, entry of default, and dismissal of an action are the most drastic among them and ordinarily will not be resorted to for the purpose of punishing or penalizing a party. Leatherby Insurance Company v. Jones, 332 So.2d 139 (Fla.3d DCA 1976); Hurley v. Werly, 203 So.2d 530 (Fla.2d DCA 1967). The severity of a sanction must be commensurate with the violation, Turner v. Anderson, 376 So.2d 899 (Fla.2d DCA 1979) and should be imposed upon a defendant only in extreme situations for flagrant or aggravated cases of disobedience. Travelers Insurance Company v. Rodriguez, 357 So.2d 464 (Fla.2d DCA 1978); Goldstein v. Goldstein, 284 So.2d 225 (Fla.3d DCA 1973). The visitation of such an ultimate sanction should not be imposed for failure to timely comply with a discovery order especially where failure to comply does not operate to prejudice the opposing party in any substantial manner. Beaver Crane Service, Inc. v. National Surety Corporation, 373 So.2d 88 (Fla.3d DCA 1979); Masons Concrete of Crystal River, Inc. v. Corbin Well Pump & Supply, Inc., 364 So.2d 824, (Fla.2d DCA 1978), cert. denied 373 So.2d 457 (Fla.1979).

In this case, Santuoso had submitted to deposition. The motion to compel answers to certified questions and further discovery was granted at a time when Santuoso’s attorney was permitted to withdraw. The case has not been set for trial. Santuoso’s disobedience is attenuated by the fact that his former attorney of record attempted to be reinstated on his behalf at the time the default was entered. The order entering the default against the defendants did not recite that Santuoso’s failure to submit to discovery was willful. Ramos v. Sanchez, 375 So.2d 51 (Fla.2d DCA 1979).

Under the circumstances presented, we hold the sanction consisting of the entry of default as to liability against Santuoso was excessive and amounted to an abuse of discretion.

The order appealed from is reversed. This reversal shall not operate to deprive the trial court of authority to proceed, after remand, to impose upon the defendant San-tuoso some authorized lesser sanction which, in the opinion of the court, is just and proper under the circumstances.

Reversed and remanded.