text:
    Howard LAKE v. STATE
    No. 4 Div. 761.
    Court of Criminal Appeals of Alabama.
    Oct. 30, 1979.
    Rehearing Denied Dec. 18, 1979.

      Michael I. Kent, Opelika, for appellant.
    Charles A. Graddick, Atty. Gen. and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

At the time of the indictment and the trial of appellant, he was a member of the County Commission of Russell County, Alabama. Omitting the formal parts thereof, the indictment was as follows:

“Howard Lake as a Commissioner of Russell County, Alabama, being thereby charged or entrusted with the collection, receipt, safekeeping, transfer or disbursement of certain property, to-wit: 4,968 gallons of liquid asphalt of the value of to-wit: $1639.44; 113.8 tons of No. 6 stone of the value of to-wit: $472.27; and 68.3 tons of No. 7 stone of the value of to-wit: $334.67, said property belonging to or under the control of the County of Russell, Alabama, did convert to his own use or to the use of another the said above-described property contrary to law and in violation of Section 13-3-21, Code of Alabama 1975.”

A jury found defendant guilty as charged in the indictment. The court sentenced him to imprisonment for two and one-half years and placed him on probation for the same length of time.

The paramount and stoutly contested issue on appeal is as to the sufficiency vel non of the evidence to support the verdict. Our summary of the evidence will be limited to that part of it that has a material bearing upon the crucial issue in the case.

It was conclusively established by the evidence for the State that during the summer of 1977 Commissioner Lake ordered the paving of four roads or streets at Lakeview Mobile Home Court. In accordance with the order of Commissioner Lake, the roads or streets were paved by employees and supervisory personnel of Russell County. The Russell County Commission paid all of the salaries, and the gas, oil and diesel fuel used by its equipment in the particular paving project. It also paid for the liquid asphalt and stone used in the paving process as set forth in the indictment. Lake-view Mobile Home Court was owned by Douglas Lake, an uncle of defendant, but some of the lots at Lakeview Mobile Home Court had been sold to other people.

Mack Hornsby had an oral agreement with Douglas Lake, whereby he rented “from Mr. Douglas Lake for a certain figure, and then I turned around and then I rented spaces to the public to park their mobile homes there for another figure which I tried to make a profit at.” According to his testimony he had had such an arrangement with Mr. Douglas Lake for “several years.”

Introduced in evidence in the case was a typed agreement of July 21,1977, signed by Mack Hornsby and Howard Lake, as follows:

“This Agreement made and entered into this 21st day of July 1977, by and between Mack Hornsby, party of the first part and the Russell County Commission, party of the second part;
“WHEREAS, Mack Hornsby, party of the first part desires that the Russell County Commission, party of the second part perform certain work on the streets in Lake-view Trailor Court.
“THEREFORE, the Russell County Commission, party of the second part agrees to pave said streets (total length approximately 2,700 feet) with double bituminous surface treatment.
“Mack Hornsby, party of the first part agrees to reimburse Russell County Commission, party of the second part for actual cost of all materials used on said project. (Estimated cost $2700.00).
“IN WITNESS WHEREOF, on this the 21st day of July 1977, we affix our signatures to this AGREEMENT.”

The indictment was returned on March 28, 1979. About a week thereafter, an employee of the County Clerk’s office found the agreement stated above in a file folder. She testified that prior to the indictment she had looked through the office and had not found any agreement or anything in the minutes to indicate approval of the paving project by the County Commission. She could not explain why the agreement was in the particular file; she stated she didn’t think she put it there. The evidence also shows that copy of the document had been filed and kept in chronological order in the office of the County Engineer.

Commissioner Lake testified he had obtained the approval of the other four commissioners to the paving of the property. According to the testimony of each of the other commissioners, the paving had not been authorized by him (her), the matter had never come “across the table” at any conference or meeting of the Commission. Some of them would not say that Commissioner Lake had not at some time discussed the matter, but there was no specific recollection thereof.

Soon after the contract executed by Commissioner Lake and Mr. Hornsby was found, the Clerk of the County sent Mr. Hornsby a statement for $2,700.00, the estimated cost of the material furnished, which Mr. Horns-by promptly paid.

At the conclusion of the evidence for the State and upon consideration of defendant’s motion to exclude the evidence, the court announced that it would hold as a matter of law that three of the streets or roads that were paved were public roads or streets and that there could be no conviction under the indictment for the conversion of alleged material belonging to the county that was applied on public streets or roads. The court stated that it would instruct the jury “that as a matter of law the top and bottom streets and the Kinnett Road are public ways,” which the court did in charging the jury after the completion of the case. During the colloquy among the court and counsel, it was made clear that there was enough material of the county used on the street or road that the court did not as a matter of law determine was a public street or road to constitute much more in value than $25.00, which would make the crime charged a felony rather than a misdemean- or.

The announcement of its conclusions by the court narrowed the issue between the parties to one that hinged largely upon whether the only remaining street or road was a public way on the one hand or a private one on the other. There is no contention by appellee, and we can see no reasonable basis for such contention, that if such street was a public street or, stated otherwise, if there is no substantial evidence to support a finding that it was a private street, the verdict and judgment finding defendant guilty cannot stand in the face of defendant’s denied motion to exclude the evidence, his refused requested general charge in his favor and the denial of his motion for a new trial.

Much of the evidence was devoted to the nature of all of the four roads or streets that were paved, but as three of them were eliminated by the court as a basis for the charge contained in the indictment, a large part of such evidence has no material bearing upon the pivotal question of the nature of the remaining street, which appellant now insists, as he did on the trial, was a public way at the time it was paved.

“A public way is established in either one of three ways, (1) by a regular proceeding for that purpose, or (2) by a dedication as such by the owner of the land the way crosses, with acceptance by the proper authorities, or (3) the way is generally used by the public for twenty years. “Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632.” Powell v. Hopkins, 288 Ala. 466, 472, 262 So.2d 289, 294 (1972).

On June 24, 1968, there was filed on behalf of the owner of the property, Mr. Douglas Lake, in the office of the Probate Court of Russell County a plat of a subdivision of the property. A photocopy thereof is in the record as Defendant’s Exhibit No. 1. In it three streets are shown and designated as “A” street, “B” street, and “C” street, each fifty feet in width. It appears that “A” supplants what has been referred to herein as Kinnett Road, a longitudinal street on one side of the plat. There is no road or street on the other side. The plat is in the shape of a rectangle approximately 816 feet long and 600 feet wide. On one end of the rectangle, the surveyor has drawn five lots, four of which are each 100 feet in width and 178 feet long. The other lot is 200 feet in width and 178 feet in length, but such lot is “not in this survey.” The lots in this end of the plat are shown to be in “BLOCK ‘A.’” “‘B’ Street,” fifty feet in width, is shown as adjacent to Block A. The part of the property adjacent B Street on the other side of Block A is designated “FUTURE DEVELOPMENT BLOCK ‘B,’ ” which is shown to be 360.4 feet in width and extends to a 50-foot street designated as “ ‘C’ STREET”; then adjacent to “C” Street are shown six lots 178 feet in length and 100-109 feet in width and designated as “BLOCK ‘C.’ ”

On copy of the plat, Defendant’s Exhibit No. 1, there now appears a freehand drawing of two transverse lines running the full width of the plat, one just above and the other just below the designation on the plat, “FUTURE DEVELOPMENT BLOCK ‘B.’ ” These two lines were made on the exhibit by one of the witnesses in an effort to show the location of the street that the court did not rule as a matter of law constituted a public way, which in the record, is often referred to as the “third street.” The term “third street” tends to confuse, as four streets in all were involved. Meant by “third” was that it was one (the middle) of three transverse streets on the plat. As the designation was apparently accepted by all concerned, we will continue herein to designate it as “third.” Upon request of one of the attorneys, as to which there was no objection, the witness has placed within the mentioned transverse lines a legend, “3rd St.”

There was evidence that Kinnett Road had existed and been used by the public generally since 1953. Two of the transverse roads on the plat, not the “third street,” came into existence between 1962 and 1967. There was some maintenance by the county of all of the roads, except the “third street,” for at least twelve years prior to the trial. There had been some maintenance by the county of the “third street” prior to paving thereof in 1977, which according to the evidence was less than “twelve years,” but the period of time was not made certain. The maintenance was described as “blading” the road or running the motor grader over it and cutting it half an inch or an inch, “just enough to cut out the rough and fill in the holes and get it to where people can travel it.” Mr. W. L. Griffith, foreman for District One, whose immediate supervisor was the defendant and who testified as to the paving work that was done as ordered by defendant, said as to his knowledge of “third street” in pertinent part:

“Q. [On cross examination by defendant’s counsel] Let me ask you just one question, Mr. Griffith. Was the Third Street newly created at the time it was paved or had it been in existence as a dirt street for a while before it was paved?
“A. When I first remember this Third Street, as I recalled it, there was a line of trailers facing each one of the existing streets that’s on this plat, and the people used that thing as a driveway for trailers going — they could have a back entrance and a front entrance.
“Q. I see.
“A. Now, when this street was put in there, I don’t recall.
“Q. I see. So the various people who lived there were using it more or less as a trail before it became a street?
“A. A trail?
“Q. Yes, sir.
“A. Well, call it a trail, if you like, or a driveway.”

Recognizing that “third street” had not been established by procedure (1), i. e., by a regular proceeding for that purpose or by stated way (3), i. e., by use by the general public for twenty years, as set forth in Powell v. Hopkins, supra, appellant relies upon specified method (2), that is, by a dedication of the way by the owner of the land with an acceptance thereof by the proper authorities. He does not attempt to show that the recordation of the plat by Mr. Douglas Lake in the office of the Probate Court constituted a dedication, as the plat itself shows affirmatively that there was no “third street” therein, and that afterwards what was referred to as “third street” was midway of a large part of the land that was expressly reserved in the plat and designated as “FUTURE DEVELOPMENT ‘B.’” Appellant urges that, although there may have been no express dedication, there was a common law or “implied” dedication to be found in whatever action there was by the owner conjoined with whatever action there was by the county. As to any action by the owner, there is little, if any, evidence. He himself did not testify. As to any action by the county, appellant is obliged to rely exclusively on the rather nebulous testimony as to some blading at times of the street or “running over it knocking the lumps out of it.”

We find no evidence in the case that would justify any ruling that as a matter of law there had been a common law dedication of “third street.” No affirmative action to that end is shown on the part of the owner. Whatever the county did in the way of “blading” was inconclusive as to any intent on the part of the county to assume responsibility for the maintenance of the road or to treat it as a public way.

“The intent to dedicate to public use is the foundation of every dedication. And the burden of proving a dedication rests upon the party asserting it. State ex rel. Davis v. Meaher, 213 Ala. 466, 484, 105 So. 562; Burleson v. Town of Hamilton, 213 Ala. 198, 200, 104 So. 253; Smith v. City of Dothan, 211 Ala. 338, 340, 100 So. 501. ‘Dedication is an affirmative act, and must be shown by affirmative evidence or its equivalent. If the acts and declarations of the owner are equivocal, they are insufficient to establish a dedication. * * * [t]he intent to dedicate to the public use must be shown by unequivocal acts upon which the public has a right to rely.’ Burleson v. Town of Hamilton, supra [213 Ala. 198, 104 So. 254]. In Smith v. City of Dothan, supra [211 Ala. 338, 100 So. 502], the rule was recognized ‘that to establish a dedication the clearest intention on the part of the owner to that effect must be shown, and that the evidence must be clear and cogent and the acts of the owner relied on to establish a dedication must be unequivocal in their indication of the owner’s intention to create a public right exclusive of his own.’ ” Witherall v. Strane, 265 Ala. 218, 222-223, 90 So.2d 251, 255.

To the same effect are O’Rorke v. City of Homewood, 286 Ala. 99, 237 So.2d 487 (1970); Howard College v. McNabb, 288 Ala. 564, 263 So.2d 664 (1972).

We doubt that there is any evidence in the case that would support a finding that “third street” was a public way, but we are not required to make this determination, as the trial court did not hold that as a matter of law it was a private way. It left that inquiry as a' question of fact for the jury to decide. As to this, appellant has no ground for complaint. The ruling of the trial court to the effect that the decisive question as to whether the way was public or private was a factual one was as much as if not more than, that to which defendant was entitled. Although when all evidence bearing on the question is presented, such question often becomes one for the court to decide as a matter of law, it may under the circumstances in a particular case be one as to which reasonable people could reasonably draw contrary conclusions. Thus it was held by Mr. Justice McKenna in District of Columbia v. Robinson, 180 U.S. 92, 96, 21 S.Ct. 283, 284, 45 L.Ed. 440 (1901):

“There is an assignment of error which in effect, though in form an attack on instructions, questions the sufficiency of the evidence to justify any recovery, and which asserts that it was the duty of the court to have taken the case from the jury. In other words, it is claimed that the trial court should have decided, and not left it to the jury to decide, that the road was a public highway. It is not clear upon what the contention is rested; whether it is rested on the ground that the road was established by the levy court, or that evidence showed beyond reasonable dispute that the road had been acquired by adverse use, or had been dedicated by plaintiffs’ predecessors in the title. But the evidence did not establish either conclusion beyond reasonable dispute. Both conclusions were disputable and disputed, and whether they were or were not justifiable inferences from the evidence, which was conflicting, was for the jury to determine, not for the court; and the court properly declined to do so. What were within the functions of the court, and what were within the functions of the jury, are questions entirely aside from the distinction between public and private ways and the manner of acquiring either, — whether by grants or by acts in pais establishing title by dedication or prescription, the propositions which counsel have learnedly argued. “There is no evidence of a formal grant. The dedication of the road, or the prescriptive right of the public to it, was sought to be proved by the acts of the owners of the land and certain uses by the public. There was opposing evidence, or, rather, evidence of opposing tendency, which could be claimed to show that the use by the public was in subordination to the title, — was permissive, not adverse. The issue hence arising was properly submitted to the jury.”

In our opinion, the evidence as a whole, including all documentary evidence in the record and the testimony of all witnesses, was sufficient to justify a finding by the jury that the street referred to in the testimony as “third street” and on Defendant’s Exhibit 1 as “3rd St.” was not a public way. Although this conclusion is completely independent thereof, we note additionally that by agreement of parties in open court the jury was allowed to inspect as a body the locus in quo during the trial. The record shows:

“THE COURT: Ladies and Gentlemen, both sides of this case have agreed to allow you to view the roads that we are talking about for the proposition that it would help get yourselves oriented to the lay of the land and exactly what these witnesses have been discussing.
“With that, the court proceedings in this courtroom will be in recess until 1:30, at which time the jury will view the site and go to lunch.
“At 10:15 A.M. recess was had for the jury to view the property under discussion and also to have lunch.”

The court reconvened at 1:37 P.M., and the court said:

“THE COURT: Ladies and Gentlemen, when we recessed to view the scene, and we are now back, the State is still presenting witnesses in the case in chief.”

As neither party has raised the question and as a decision thereof is not necessary to a correct determination of this appeal, we do not attempt to decide whether the inspection by the jury of the locus in quo adds strength to the basis for its verdict. See Western Ry. of Alabama v. Still, Ala., 352 So.2d 1092 (1977); Pappas v. Alabama Power Co., 270 Ala. 472, 119 So.2d 899 (1960); State v. Carter, 267 Ala. 347, 101 So.2d 550 (1958). Certainly the facts shown do not weaken the verdict of the jury.

We are well impressed by the strong argument of counsel for appellant to the effect that the evidence is not so strong as to compel a conclusion that defendant intentionally acted in such a way as to “convert to his own use or to the use of another” liquid asphalt and stone as alleged in the indictment, which by Code 1975, § 13— 3-21 is denominated “embezzlement.” On his side of that argument is undisputed evidence that he did not know that his uncle was the owner of the property, and there was no positive testimony that defendant knew that “third street” was not a public way. On the other side of the argument, however, are the rather mysterious circumstances of an important contract executed by Commissioner Lake and Mack Hornsby of which no other commissioner of Russell County had any knowledge until nearly two years after the work on the contract was performed, the further fact that the sizeable and important work was performed on the order of Commissioner Lake without its ever being considered at a meeting of the County Commission and that no reference to it was ever found in the minutes of such meetings. Felonious intent, as distinguished from mere negligence, on the part of Commissioner Lake was a question for determination by the jury.

Appellant argues that the acceptance by Russell County of a check from Mr. Mack Hornsby for the amount agreed upon by the contract executed by him and Commissioner Lake, with knowledge of all the previous circumstances, constituted a ratification by the interested party, Russell County, of the conduct of Commissioner Lake. Appellant’s reliance upon Wilkinson v. Moseley, 30 Ala. 562 (1857), is misplaced. There the tort of conversion, a civil wrong, was involved; here there was a prosecution for the crime of conversion or embezzlement. As to the one, an accord and satisfaction constitutes a valid affirmative defense. As to the other, it is not a defense. Rogers v. State, 37 Ala.App. 8, 65 So.2d 525, cert. denied 259 Ala. 124, 65 So.2d 531 (1953); Troup v. State, 32 Ala.App. 309, 26 So.2d 611 (1946); 26 Am.Jur.2d, Embezzlement, § 47.

We find no error in the record prejudicial to defendant, and we conclude that the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this- Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex parte Howard LAKE. Re: Howard LAKE v. STATE.
    79-262.
    Supreme Court of Alabama.
    Jan. 25, 1980.
   SHORES, Justice.

Writ denied.

MADDOX, JONES, EMBRY and BEAT-TY, JJ., concur.


author: OVERTON, Justice.

text:
    WHITE EGRET CONDOMINIUM, INC., Appellant, Petitioner, v. Marvin FRANKLIN et al., Appellees, Respondents.
    No. 54519.
    Supreme Court of Florida.
    Dec. 13, 1979.
    Rehearing Denied Feb. 19, 1980.

      Welcom H. Watson, Jr., and Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellant, petitioner.
    James G. Kincaid, Fort Lauderdale, for appellees, respondents.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for Leisure Technology of Florida, Inc., amicus curiae.
    Ralph H. Haben, Jr., Palmetto, for Florida Apartment Ass’n, amicus curiae.
    Mark B. Schorr of Becker, Poliakoff & Streitfeld, Fort Lauderdale, for amicus curiae.
   OVERTON, Justice.

This case is before this Court on direct appeal and on petition for writ of certiorari from the decision of the Fourth District Court of Appeal reported at 358 So.2d 1084 (Fla. 4th DCA 1978). The district court construed provisions of the United States Constitution in determining the constitutionality of an express covenant in a condominium agreement which prohibited children under the age of twelve from residing in the condominium premises. In addition, the decision of the district court fails to harmonize with portions of Coquina Club, Inc. v. Mantz, 342 So.2d 112 (Fla. 2d DCA 1977), and Hidden Harbor Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975). We have jurisdiction.

The principal issue is whether a condominium agreement containing a restriction against residency by children under the age of twelve violates a condominium purchaser’s constitutional rights to marriage, procreation, and association, and his right to equal protection of the laws. We find such a restriction is not constitutionally prohibited unless unreasonably or arbitrarily applied. We disagree with the district court’s holding that the restriction was unreasonable “per se” and unconstitutional. We do agree, however, that the condominium restriction in the instant case was arbitrarily and selectively applied, and therefore we approve the result.

The recency of the condominium concept, its dependency upon certain use and occupancy restrictions and rules, and the substantial development of retirement communities in this state necessitate a full discussion of this issue.

Two brothers, Marvin Franklin and Norman Franklin, sought to acquire a condominium apartment as a joint vacation home for their respective families when they visited Florida. Although they intended to have dual ownership of this condominium, only one brother’s family at a time would be using the apartment. Both brothers filed application for ownership, but only Marvin’s application had been approved at the time of the closing. The record reflects that at the closing Norman Franklin’s application could not be found. The apartment was conveyed to Marvin Franklin who then transferred one-half ownership to Norman. ’Ten months after the conveyance, White Egret Condominium, Inc., the condominium association, sought to set aside the transfer of the ownership interest from Marvin to Norman on the grounds that: (1) the defendant, Norman Franklin, had minor children in violation of the restriction which did not allow any children under twelve years of age to reside on the premises, and (2) permitting two brothers and their respective families to occupy and own the premises violated the restriction which did not permit the use of the apartment for any purpose other than as a “single family residence.”

The condominium agreement did not define the phrase “single family residence.” The agreement did provide that membership could be held in more than one owner’s name and that an apartment could be transferred to a member of the “immediate family.” In addition, the condominium association conceded that where other requirements and restrictions were satisfied, the owner did not need the association’s approval to convey a fee simple interest in the apartment to a brother. The record further reveals that six children under the age of twelve were residents of White Egret Condominium.

In entering its final judgment, the trial court directed Norman to reeonvey title of his one-half ownership interest to his brother, Marvin, because said conveyance from one brother to another brother was “void and contrary to the declaration of condominium and other documents related thereto which limit ownership in condominium apartments in White Egret Condominium to a single family.” This was the sole ground for the trial court’s judgment. The final judgment was not based on the fact that Norman had minor children under the age of twelve, contrary to the condominium declaration.

The district court reversed the trial court’s judgment, holding: (1) that the restriction against children under the age of twelve was an unconstitutional violation of the rights to marriage, procreation, and association, and of the right to equal protection of the laws; (2) that the restriction was unreasonable because the condominium association selectively and arbitrarily enforced its application; and (3) that the restriction against the use of the apartment for purposes other than as a single family residence was not violated because the two brothers and their families alternated their stays in the apartment.

Constitutionality of Age Restrictions or Limitations

In holding that the restriction violated an owner’s constitutional rights, the district court primarily relied upon three United States Supreme Court decisions: (1) Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (holding unconstitutional a statute prohibiting a white person from marrying anyone but a white person); (2) Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (holding unconstitutional a statute prohibiting use and distribution of contraceptives); and (3) Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (holding unconstitutional a statute requiring sterilization of habitual criminals). In our view, the district court’s reliance on these cases was misplaced and not a proper interpretation of them.

The limitation on use of property by requiring single dwelling units and single family use has received constitutional support. In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), the United States Supreme Court considered the constitutionality of a zoning ordinance which restricted land use to one family dwellings. Family was defined to mean any number of persons related by blood, adoption, or marriage, or not more than two unrelated persons living as a single housekeeping unit. The majority opinion held that this restriction violated no fundamental right, such as the right of association or privacy. The court found the restriction reasonable and rationally related to a permissible state objective, and therefore held it did not violate equal protection. Referring to this ordinance having an appropriate purpose, the court stated:

A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land-use project addressed to family needs. This goal is a permissible one within Berman v. Parker, [348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27] supra. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.

Id. at 9, 94 S.Ct. at 1541.

On the other hand, there have been cases holding that property and family limitations in zoning ordinances violate constitutional rights. In Moore v. City of East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977), Mrs. Moore lived in her home with her son and two grandsons who were cousins rather than brothers. A housing ordinance selected categories of relatives who may live together and others who may not, making failure to comply a criminal penalty. Mrs. Moore received a notice of violation from the city stating that one grandson was “an illegal occupant” and directing her to comply with the ordinance. When she failed to remove her grandson from her home, the city filed a criminal charge. A motion to dismiss was denied, and Mrs. Moore was convicted and sentenced to five days in jail and a $25 fine. The United States Supreme Court held that the ordinance could not be justified as serving the city’s interests of preventing overcrowding and minimizing traffic and parking congestion. The court further held that the substantive due process right to live together as a family was not confined to the nuclear family, since the constitution’s protection of the sanctity of the family was deeply rooted in the nation’s history and tradition and since such tradition was not limited to respect for the bonds uniting the members of the nuclear family but extended as well to the sharing of their household with uncles, aunts, cousins, and especially grandparents. A concurring opinion by Justice Stevens, whose vote was necessary for a decision, stated: “The city has failed to totally explain the need for a rule which would allow a homeowner to have two grandchildren live with her if they are brothers, but not if they are cousins.” In Molino v. Mayor and Council of Glassboro, 116 N.J.Super. 195, 281 A.2d 401 (1971), a zoning ordinance had the effect of keeping children out of the city for the admitted purpose of avoiding taxes and more schools. The court held the ordinance violative of the equal protection clause. A review of the facts in both Moore and Molino clearly establishes an unreasonable and arbitrary application of the governmental police power.

In the instant case, the restriction is not a zoning ordinance adopted under the police power but‘rather a mutual agreement entered into by all condominium apartment owners of the complex. With this type of land use restriction, an individual can choose at the time of purchase whether to sign an agreement with these restrictions or limitations. Reasonable restrictions concerning use, occupancy, and transfer of condominium units are necessary for the operation and protection of the owners in the condominium concept.

In Hidden Harbor Estates, Inc. v. Norman, 309 So.2d 180, 181-82 (Fla. 4th DCA 1975), Judge Downey explained the necessity for restrictions on condominium living:

It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.

In addition, the legislature of this state has expressly approved the allowance of reasonable restrictions on use and occupancy. See § 718.112(3), Fla.Stat. (1977). Therefore, it is our view that a condominium restriction or limitation does not inherently violate a fundamental right and may be enforced if it serves a legitimate purpose and is reasonably applied.

The issue of age restrictions in condominiums and housing developments is a new legal issue although it has recently been addressed by courts in other jurisdictions and referred to in two decisions of our district courts. In Hidden Harbor Estates, Inc. v. Norman, the condominium association adopted a rule prohibiting the use of alcoholic beverages in certain areas of the common elements. A unit owner sought to enjoin the enforcement of the rule. The district court held that this was a reasonable rule, citing examples of other restrictions on individual rights which are necessary for the condominium concept: “[N]o sale may be effectuated without approval; no minors may be permanent residents; no pets are allowed.” 309 So.2d at 182. The limitation on minors being permanent residents was quoted with apparent approval although it was not an issue in the cause. In Coquina Club v. Mantz, 342 So.2d 112 (Fla. 2d DCA 1977), the condominium board denied an application for the purchase of a unit by a family with two children under twelve years of age. Because of this denial, the unit owner sought to require the condominium to either purchase the unit or provide a purchaser for the apartment at his price. The district court noted that the condominium legislation in this state specifically allowed reasonable restrictions, and that age restrictions had withstood constitutional attack in other jurisdictions, citing Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747 (1974). See Annot., 68 A.L.R.3d 1239 (1976).

In Riley the court upheld a covenant in a deed restricting occupancy in a mobile home subdivision to persons twenty-one years or older. The court stated: “The obvious purpose is to create a quiet, peaceful neighborhood by eliminating noise associated with children at play or otherwise.” Id. at 228, 526 P.2d at 752. The court noted there were other areas in the mobile home park for families with children. The court therefore found this restriction reasonably related to a legitimate purpose and declined to hold that its enforcement violated the defendant’s right to equal protection.

In Ritchey v. Villa Nueva Condominium Ass’n., 81 Cal.App.3d 688, 146 Cal.Rptr. 695 (Ct.App.1978), the issue before the court was the validity of a condominium bylaw restricting occupancy of condominium units to persons eighteen years of age or older. The court held that age restrictions in condominium documents were not unreasonable “per se,” and that it was a reasonable restriction upon an owner’s right to sell or lease his condominium unit.

We agree with these courts that age limitations or restrictions are reasonable means to accomplish the lawful purpose of providing appropriate facilities for the differing housing needs and desires of the varying age groups. We reject the view that Moore v. City of East Cleveland absolutely prohibits this type of limitation. We note that Congress has established age limitations in recognizing the need for senior citizen housing by including an age minimum of sixty-two years for occupancy of certain housing developments. See 12 U.S.C. § 1701, et seq. (1969); 42 U.S.C. § 3001, et seq. (1973); 12 U.S.C. § 1701q(d)(4) (Supp.1979) (minimum age); and 42 U.S.C. § 1485(a)(3) (1978).

The urbanization of this country requiring substantial portions of our population to live closer together coupled with the desire for varying types of family units and recreational activities have brought about new concepts in living accommodations. There are residential units designed specifically for young adults, for families with young children, and for senior citizens. The desires and demands of each category are different. Young adult units are predominantly one-bedroom units with extensive recreational facilities designed for the young, including tennis and racquet ball courts, weight rooms, saunas, and even disco rooms. The units designed principally for families are two- to four-bedroom units with recreational facilities geared for children, including playgrounds and small children’s swimming pools. Senior citizen units are limited to one- and two-bedroom units designed to provide the quiet atmosphere that most of our senior citizens desire. These units may provide extra wide doors throughout the complex to allow sufficient clearance for wheelchairs and walkers and recreational facilities such as card rooms and shuffleboard courts. Although tennis courts and playgrounds may be desirable for younger tenants and owners, such facilities would be a waste of funds and be largely unused in a development which housed a substantial number of senior citizens. We cannot ignore the fact that some housing complexes are specifically designed,. for certain age groups. In our view, age restrictions are a reasonable means to identify and categorize the varying desires of our population. The law is now clear that a restriction on individual rights on the basis of age need not pass the “strict scrutiny” test, and therefore age is not a suspect classification. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). We do recognize, however, that these age restrictions cannot be used to unreasonably or arbitrarily restrict certain classes of individuals from obtaining desirable housing. Whenever an age restriction is attacked on due process or equal protection grounds, we find the test is: (1) whether the restriction under the particular circumstances of the case is reasonable, and (2) whether it is discriminatory, arbitrary, or oppressive in its application.

The totality of an age or family limitation in its application as it occurred in Morino v. New Jersey and Moore v. City of East Cleveland is clearly not present in the instant case. We further reject the view that Moore mandates that all related relatives must be allowed to live in whatever single family facilities they desire. Such an absolute rule would inversely prohibit those who desire to live in a facility without children from doing so.

In the instant case the subject premises were admittedly to be used as a vacation retreat rather than as a family’s primary residential home. Regardless of that fact, however, we find the restriction against children under the age of twelve reasonably related to a lawful objective, but under the circumstances of this case the selective and arbitrary manner of enforcement is another issue.

Selective and Arbitrary Enforcement

At the time Marvin Franklin purchased his condominium apartment, at least six other children under the age of twelve were living in this condominium complex. Further, the record reveals that the six children were in two separate households and that some of the children were substantially under the age of twelve. We agree with the district court’s finding that this constituted unequal and arbitrary enforcement of the restriction. Although this restriction was reasonably related to a lawful objective, the appellant is estopped from selectively enforcing the age restriction. See Fifty-Six Sixty Collins Avenue Condominium, Inc. v. Dawson, 354 So.2d 432 (Fla. 3d DCA 1978), and Plaza Del Prado Condominium Ass'n., Inc. v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977).

Single Family Use of the Condominium

The condominium agreement prohibited use of the condominium apartment for any purpose other than as a single family residence. The agreement, however, failed to define the term “single family residence” and expressly permitted ownership of an apartment by more than one individual. The district court found that when this undefined “single family residence" provision was read together with the joint ownership provision, the two sections were inconsistent and inherently ambiguous. As a result, the doubt must be resolved against the person claiming the right to enforce the covenant. Moore v. Stevens, 90 Fla. 879, 885, 106 So. 901, 904 (1925). The district court further noted that even assuming the two brothers and their respective families constitute two separate families, they used the apartment in a single family manner by alternating their visits to Florida. Only one brother and his family actually occupied the apartment at any given time, and this was in fact a single family use. We agree with these conclusions of the district court.

In addressing the issue of what constitutes a “single family,” the district court cited Moore v. City of East Cleveland which held that the right to live together as a family may not be limited to only a few categories of related individuals by a housing ordinance with criminal penalties. For the reasons expressed previously in this opinion, we find Moore not applicable to the instant case.

Conclusion

We conclude that age limitations and restrictions may be enforced if reasonably related to a lawful objective and not applied in an arbitrary or discriminatory manner. In the instant case we find that the premises were in fact used as a single family residence and the age restriction was selectively and arbitrarily applied. Consequently, neither the age nor the single family restrictions may in this circumstance be judicially enforced, and we agree with the result reached by the district court.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and SUNDBERG, JJ., concur.

      . Art. V, § 3(b)(1), (3), Fla.Const.

      . See generally 7 Stetson Intramural L.Rev. 193 (Spring 1978).


author: ALDERMAN, Justice. McDONALD, Justice,

text:
    Ruth RAISEN, Petitioner, v. Philip RAISEN and Insurance Company of North America, Respondents.
    No. 54838.
    Supreme Court of Florida.
    Dec. 20, 1979.
    Rehearing Denied Feb. 21, 1980.

      Lawrence B. Friedman of Friedman & Robbins, North Miami Beach, for petitioner.
    Joseph S. Kashi of Grimmett, Scherer & James, Fort Lauderdale, for respondents.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   ALDERMAN, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, in Raisen v. Raisen, 370 So.2d 1148 (Fla. 4th DCA 1978). The district court has certified the following question for our consideration:

Does the doctrine of interspousal immunity preclude a tort action between husband and wife in all cases or will such an action lie if it is alleged and proven that none of the traditional reasons supporting interspousal immunity are applicable?

Material to the disposition of this cause is the broader question posed by the parties of whether this court should abrogate the doctrine of interspousal immunity in Florida. We conclude that valid policy reasons justifying the retention of the doctrine still exist.

Mrs. Raisen sued her husband and his insurer for damages arising out of his operation of an automobile in an allegedly negligent manner so as to cause her injury. She alleged that this suit would not disturb the domestic peace of her home and marriage and that she and her husband have not conspired to promote a fraudulent or collusive lawsuit. The trial court dismissed the complaint on the basis of interspousal immunity and entered judgment for Mr. Raisen and his insurer. The district court affirmed.

Mrs. Raisen urges that we abrogate the common law doctrine of interspousal immunity because the reasons for this rule have ceased to exist. In response, Mr. Raisen and his insurance carrier argue that the underlying justifications for this doctrine retain their vitality. They contend that with widespread insurance coverage, the probability of collusion and fraud is increased and that, unquestionably, an adversary tort contest between spouses will have an upsetting effect on domestic tranquility.

Originally a part of the common law of England, interspousal tort immunity was adopted into the law of Florida in 1829 by the enactment of what is now section 2.01, Florida Statutes (1977). Corren v. Corren, 47 So.2d 774 (Fla.1950). As a general rule, that part of the common law codified by section 2.01 should be changed through legislative enactment and not by judicial derasion. Only in very few instances and with great hesitation has this Court modified or abrogated any part of the common law enacted by section 2.01, and then only where there was a compelling need for change and the reason for the law no longer existed. E. g., Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

In Corren v. Corren, we considered the changes that had occurred since 1829 and concluded that the legislature had not intended by any of its enactments to abrogate interspousal tort immunity. At that time, we admonished the legislature that it would be assuming a grave responsibility if it were, by legislative enactment, to allow each spouse to treat the other as a stranger so far as legal rights are concerned, and we advised that if it should do so, the language proclaiming this revolutionary change should be positive and unambiguous. 47 So.2d at 776. Since our decision in Corren, the legislature has not spoken in positive and unambiguous language to abrogate in-terspousal tort immunity.

Convincing arguments for the continued validity of this law are found in various decisions of this Court over the last thirty years. In Corren, we rejected the argument that the Married Women’s Property Act destroyed the unity of marriage and explained:

[T]he so-called emancipation act did not so affect the marriage relationship that the husband and wife were thenceforward permitted to go their separate ways, but instead were still mates residing in a common home, each making in his own way a contribution to the marriage venture.
As we have already commented, this fundamental relationship does not seem directly affected by the provisions of organic and statutory law with reference to the woman’s dominion over her own property, and we feel that we would have to resort to the illogic to hold that there can be found in any of them the implication even that she might sue her spouse for injuries resulting from the negligent operation of his automobile.

47 So.2d at 775. Additionally, referring to the marital discord that could result from an embittering and distressing interspousal tort action, we said:

When one ponders the effect upon the marriage relationship were each spouse free to sue the other for every real or fancied wrong springing even from pique or inconsequential domestic squabbles, one can imagine what the havoc would be to the tranquility of the home. Certainly the success of the sacred institution of marriage must depend in large degree upon harmony between the spouses, and the relationship could easily be disrupted and the lives of offspring blighted if bick-erings blossomed into law suits and conjugal disputes into vexatious, if not expensive, litigation.

47 So.2d at 776.

Subsequently, in Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967), we acknowledged the continued validity and soundness of the doctrine, reiterated the justification for its existence, and reaffirmed that, in the absence of a constitutional or statutory provision changing the common law, a wife could not maintain an action against her husband for a personal tort. In Gaston v. Pittman, 224 So.2d 326 (Fla.1969), we recognized the validity of the public policy arguments supporting the doctrine: that interspousal tort actions disturb domestic tranquility; cause marital discord and divorce; cause fictitious, collusive, and fraudulent claims; cause a rise in liability insurance; and promote trivial actions. Again, in Orefice v. Albert, 237 So.2d 142 (Fla.1970), we acknowledged as the established policy of this state that suits will not be allowed among members of a family unit for tort, and we said “[t]he purpose of this policy is to protect family harmony and resources.” 237 So.2d at 145. Our recent decision in Shor v. Paoli, 353 So.2d 825 (Fla.1977), although holding that interspousal tort immunity did not control over the Uniform Contribution Among Joint Tortfeasor’s Act, did not affect the continued vitality of the doctrine. The continuing validity of this doctrine has also been recognized by.a number of recent decisions of the district courts of appeal. Vinci v. Gensler, 269 So.2d 20 (Fla. 2d DCA 1972); Mims v. Mims, 305 So.2d 787 (Fla. 4th DCA 1974); Heaton v. Heaton, 304 So.2d 516 (Fla. 4th DCA 1975); Blanton v. Blanton, 354 So.2d 430 (Fla. 4th DCA 1978); Horton v. Unigard Insurance Co., 355 So.2d 154 (Fla. 4th DCA 1978), cert. dismissed, 373 So.2d 459 (Fla.1979).

There is a reciprocal and often antagonistic relationship between promotion of peace and harmony in the marital relationship and avoidance of fraudulent or collusive claims. A truly adversary tort lawsuit between husband and wife, by its very nature, would have an upsetting and embittering effect upon domestic tranquility. In such cases, there is little likelihood of fraud and collusion, but there is a great probability that the marriage relationship will be adversely affected. On the other hand, if the lawsuit is not adversary and there is no real conflict of interest between the spouses, the peace and harmony of the marriage is not threatened, but there is a great probability of fraudulent or collusive claims. This is particularly true where the defendant spouse is insured and both spouses will benefit if the plaintiff spouse wins the lawsuit and enforces the claim against the insurance company. Under such circumstances, it is unrealistic to think that the defendant spouse will do all within his or her power to defeat the claim of the plaintiff spouse. We expect too much of human nature if we believe that a husband .and wife who sleep in the same bed, eat at the same table, and spend money from the same purse can be truly adversary to each other in a lawsuit when any judgment obtained by the plaintiff spouse will be paid by an insurance company and will ultimately benefit both spouses.

Adversary tort lawsuits between spouses have an upsetting and embittering effect upon domestic tranquility and the marital relationship. But non-adversary lawsuits that do not disturb the peace and harmony of the marriage encourage fraudulent and collusive claims, particularly where a third-party insurance company must pay any judgment awarded. Florida’s solution to this dilemma since 1829 has been inter-spousal tort immunity. This is still a viable solution. There have been many changes in Florida since 1829, but the policy reasons justifying interspousal tort immunity still exist.

Accordingly, we hold that the common law doctrine of interspousal tort immunity is still viable in Florida and that it precludes a tort action between husband and wife in all cases. The decision of the district court affirming the trial court’s dismissal of the complaint is therefore approved.

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

McDONALD, j., concurs specially with an opinion.

ENGLAND, C. J., and ADKINS and SUNDBERG, JJ., dissent with an opinion.

McDONALD, Justice,

specially concurring.

I concur in the conclusion that this Court should not abolish the doctrine of inter-spousal immunity. I am not greatly concerned with the specter of fraudulent and collusive claims against insurance companies, since I feel that our judicial system could ferret those out. I am much more concerned by any intrusion which may adversely affect the marriage relationship. Litigation between spouses would be such an intrusion.

It has been suggested that if the doctrine of interspousal immunity is retained, the application thereof should be relaxed to allow an action for tort when the tortious conduct is covered by liability insurance. The real party in interest, it is urged, is not the spouse but the insurance carrier. Reasonable men may agree that this is a viable alternative — but I agree that should this distinction be made, it should be done by the legislature rather than this Court.

ENGLAND, Chief Justice, and ADKINS and SUNDBERG, Justices, dissenting.

We dissent.

• At least twenty-eight jurisdictions have recognized the need to make a change in permitting one spouse to maintain an action against the other. Alabama, Bennett v. Bennett, 224 Ala. 335, 140 So. 378 (1932); Bonner v. Williams, 370 F.2d 301 (5th Cir. 1966); Alaska, Armstrong v. Armstrong, 441 P.2d 699 (Alaska 1968); Arkansas, Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957); California, Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (1962); Colorado, Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935); McSwain v. United States, 291 F.Supp. 386 (E.D.Pa.1968) (applying Colorado law); Connecticut, Menczer v. Menczer, 160 Conn. 563, 280 A.2d 875 (1971); Idaho, Rogers v. Yellowstone Park Co., 97 Idaho 14, 539 P.2d 566 (1974); Indiana, Brooks v. Robinson, 259 Ind. 16, 284 N.E.2d 794 (1972); Kentucky, Arnett v. Thompson, 433 S.W.2d 109 (Ky.1968); Layne v. Layne, 433 S.W.2d 116 (Ky.1968); Massachusetts, Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526 (1971); Michigan, Hosko v. Hosko, 385 Mich. 39, 187 N.W.2d 236 (1971); Minnesota, Beaudette v. Frana, 285 Minn. 366, 173 N.W.2d 416 (1969); Nevada, Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); New Hampshire, Thompson v. Thompson, 105 N.H. 86, 193 A.2d 439 (1963); Schneider v. Schneider, 110 N.H. 70, 260 A.2d 97 (1969); Taylor v. Bullock, 111 N.H. 214, 279 A.2d 585 (1971); New Jersey, Immer v. Risko, 56 N.J. 482, 267 A.2d 481 (1970); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978); New Mexico, Maestas v. Overton, 87 N.M. 213, 531 P.2d 947 (1975) (intentional tort); New York, Jacobs v. United States Fidelity & Guaranty Co., 2 Misc.2d 428, 152 N.Y.S.2d 128 (Sup.Ct.1956); Keller v. Greyhound Corp., 41 Misc.2d 255, 244 N.Y.S.2d 882 (Sup.Ct.1963); North Carolina, La Chance v. Service Trucking Co., 215 F.Supp. 162 (D.Md.1963) (applying North Carolina Law); North Dakota, Fitzmaurice v. Fitzmaurice, 62 N.D. 191, 242 N.W. 526 (1932); Oklahoma, Courtney v. Courtney, 184 Okl. 395, 87 P.2d 660 (1938); Rhode Island, Digby v. Digby, 388 A.2d 1 (R.I.1978); South Carolina, Oshiek v. Oshiek, 244 S.C. 249, 136 S.E.2d 303 (1964); Algie v. Algie, 261 S.C. 103, 198 S.E.2d 529 (1973); South Dakota, Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266 (1941); Virginia, Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971); Vermont, Richard v. Richard, 131 Vt. 98, 300 A.2d 637 (1973); Washington, Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771 (1972); West Virginia, Coffindaffer v. Coffindaffer, 244 S.E.2d 338 (W.Va.1978); and Wisconsin, Haumschild v. Continental Casualty Co., 7 Wis.2d 1301, 95 N.W.2d 814 (1959).

These decisions recognize that the reasons for the common law rule no longer exist. Chief among the reasons traditionally assigned as justification for the doctrine of interspousal immunity are: (1) the legal unity of the husband and wife recognized at common law; (2) the promotion of peace and harmony in the home; and (3) the avoidance of fraudulent or collusive claims. Respondents argue that these justifications are still valid. They say, in fact, that with widespread insurance coverage, the fear of collusion and fraud is intensified. Respondents also correctly point out that the doctrine of interspousal immunity is well established in this state and has been upheld in our recent holdings. See Orefice v. Albert, 237 So.2d 142 (Fla.1970); Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967).

I. UNITY

Petitioner first urges that the common law unity concept which prohibited suits between spouses is no longer viable. We agree. Since 1943, with the passage of the Married Women’s Property Act, now chapter 708, Florida Statutes (1977), a married woman in Florida has been empowered to manage and control her separate property and to enter into agreements and contracts with her husband. She may also enforce her contract and property claims by suing her husband. Dodson v. National Title Insurance Co., 159 Fla. 371, 31 So.2d 402 (1947). The legal unity concept prohibiting suits between spouses was seriously eroded by the passage of this statute permitting interspousal suits in a wide range of cases. With the passage of chapter 708, and in view of the expanded legal status of women, the common law unity concept is no longer a valid justification for the doctrine of interspousal tort immunity. By rejecting the common law unity concept we do not disparage the spiritual and emotional unity which has been held to exist by virtue of the marriage bond. As noted by the Washington Supreme Court in a case abrogating the doctrine of interspousal immunity in that state:

The “supposed unity” of husband and wife, which serves as the traditional basis of interspousal disability, is not a reference to the common nature or loving oneness achieved in a marriage of two free individuals. Rather, this traditional premise had reference to a situation, coming on from antiquity, in which a woman’s marriage for most purposes rendered her a chattel of her husband.

Freehe v. Freehe, 81 Wash.2d 183, 500 P.2d 771, 773 (1972). It is the common law concept of legal unity which rendered the wife a chattel of her husband, which can no longer operate to preclude one spouse from suing the other for tortious injury.

II. PEACE AND HARMONY

We also agree with petitioner that domestic tranquility is no longer realistically served by the existence of the doctrine. As we initially noted, in this state spouses are free to sue each other for breach of contractual obligations and to protect separate property rights, but may not bring inter-spousal actions for tortious injury. Bencomo v. Bencomo; Dodson v. National Title Insurance Co.; sections 708.08 and 708.09, Florida Statutes, (1977). The inconsistency in this approach was identified in a dissent to an opinion of the United States Supreme Court construing a District of Columbia women’s property act to permit interspousal actions in tort only for the recovery of property. Justice Harlan dissented, noting that such a construction would allow:

[A] married woman to sue her husband separately, in tort, for the recovery of her property, but deny . . . her the right or privilege to sue him separately, in tort, for damages arising from his brutal assaults upon her person.

Thompson v. Thompson, 218 U.S. 611, 623, 31 S.Ct. 111, 114, 54 L.Ed. 1180 (1910). It is not logical to permit one and not the other. If marital tranquility is preserved when lawsuits are permitted between spouses over property and contract rights, we see no reason to conclude that tort actions between spouses should destroy it. We find support for this view in Dean Prosser’s criticism of the doctrine. He writes:

The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy — and this even though she has left him or divorced him for that very ground, and although the same courts refuse to find any disruption of domestic tranquility if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it.

Prosser, Law of Torts, section 122, page 863 (4th Ed. 1971). We agree, and conclude that the doctrine of interspousal tort immunity cannot be validly justified on grounds that it serves to maintain marital peace and harmony.

III. FRAUD

A third argument often urged in support of the doctrine is that to permit suits between spouses would encourage fraudulent claims against insurers. Recognizing that the possibility of fraud exists in any lawsuit, we reject the contention as a valid justification for denying one spouse compensation for injuries negligently inflicted by the other. Support for our position is found in the responses of other states to the same argument.

In rejecting the common law immunity rule, the Supreme Court of California noted:

It would be a sad commentary on the law if we were to admit that the judicial processes are so ineffective that we must deny relief to a person otherwise entitled simply because in some future case a litigant may be guilty of fraud or collusion. Once that concept were accepted, then all causes of action should be abolished. Our legal system is not that ineffectual.

Klein v. Klein, 58 Cal.2d 692, 26 Cal.Rptr. 102, 376 P.2d 70 (1962).

In a decision abolishing the common law interspousal tort immunity in Indiana, the Supreme Court of that state first noted that, “[t]he possibility of fraud and collusion exists in all litigation.” Brooks v. Robinson, 284 N.E.2d 794, 797 (Ind.1972). The court continued:

However, we are not convinced that the danger is so great when the plaintiff and defendant are also husband and wife that judicial relief should be summarily denied. Furthermore, it should not be overlooked that the testimony of both parties will be extremely vulnerable to impeachment at trial on the grounds of bias, interest and prejudice. The trial court’s responsibility, indeed, its duty, to properly instruct the jury on the credibility of witnesses and the rules governing the weight of evidence will remain unchanged, and, as was stated in United States v. Freeman (2d Cir. 1966), 357 F.2d 606, 620, “. . it cannot be presumed that juries will check their common sense at the courtroom door.”

Id., at 797.

The Washington Supreme Court rejected the same argument with this reasoning:

[T]he fact that there may be greater opportunity for fraud or collusion in one class of cases than another does not warrant courts of law in closing the door to all cases of that class. . . Courts will not immunize tort feasors from liability in a whole class of cases because of the possibility of fraud, but will depend upon the legislature to deal with the problem as a question of public policy.

Freehe v. Freehe, 500 P.2d at 775 (quoting Borst v. Borst, 41 Wash.2d 642, 251 P.2d 149, 155 (1952)).

Judge Liles, dissenting in Vinci v. Gensler, 269 So.2d 20 (Fla.2d DCA 1972), summarizes our response to the concern over fraud in interspousal tort litigation. He writes:

Some cases, in addition to maintaining family unity and harmony, rely on the danger of fraud and collusion. This, I think, denies the fact that judges are able to detect collusion and fraud when they see it.’ It also overlooks the fact that lawyers are officers of the court and practice pursuant to an oath against bringing such suits and a canon of ethics which prohibits such action.
I further believe that the courts are capable of distinguishing between a fraudulent raid on a treasury of an insurance company and legitimate claims of a wife or child where the benefit of liability protection has been purchased by the husband and father. I cannot believe that the father purchased this insurance policy to protect all other wives and children but not his own.

Id. at 21-22.

These arguments persuade us that the fear of fraud and collusion in interspousal suits for tort damages is not well founded. We reject that consideration as a legitimate justification for preserving the interspousal immunity doctrine.

Having concluded that the traditional reasons for the doctrine are not sufficiently persuasive to justify its continued operation, we would join the many other states that have totally or partially abrogated the doctrine.

In our opinion Bencomo v. Bencomo, 200 So.2d 171 (Fla.1967) and Corren v. Corren, 47 So.2d 774 (Fla.1950) should be overruled and the doctrine of interspousal tort immunity should be abrogated so as to permit a married person to sue his or her spouse for any torts committed by the marital partner.

      . Section 2.01, Florida Statutes (1977), provides:
      Common law and certain statutes declared in force. — The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the fourth day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the constitution and laws of the United States and the acts of the legislature of this state.

      . § 708.08, Fla.Stat. (1977) provides:
      (1) Every married woman is empowered to take charge of and manage and control her separate property, to contract and to be contracted with, to sue and be sued, to sell, convey, transfer, mortgage, use, and pledge her real and personal property and to make, execute, and deliver instruments of every character without the joinder or consent of her husband in all respects as fully as if she were unmarried. Every married woman has and may exercise all rights and powers with respect to her separate property, income, and earnings and may enter into, obligate herself to perform, and enforce contracts or undertakings to the same extent and in like manner as if she were unmarried and without the joinder or consent of her husband. Any claim or judgment against a married woman shall not be a claim or lien against her inchoate right of dower in her husband’s separate property. All conveyances, contracts, transfers, or mortgages of real property or any interest in it, executed by a married woman without the joinder of her husband after the effective date of the 1968 Constitution of Florida, are as valid and effective as though the husband had joined.
      (2) Any married woman having a right of dower in real property may relinquish it by joining in a conveyance or mortgage of the property or by a separate instrument without the joinder of her husband, executed in the same manner as conveyances.
      § 708.09, Fla.Stat. (1977), provides:
      Every married woman may enter into agreements and contracts with her husband, may become the partner of her husband or others, may give a power of attorney to her husband, and may execute powers conferred upon her by her husband, including the power to execute and acknowledge all instruments, including re-linquishments of dower, conveying, transferring, or encumbering property, or any interest in it, owned by her, or by herself and her husband as tenants by the entirety, or by her husband. All powers of attorney heretofore executed by a wife to her husband and vice versa, and the execution of all documents executed thereunder, are hereby validated and confirmed.


author: SUNDBERG, Judge.

text:
    Michael J. SATZ, etc., Petitioner, v. Abe PERLMUTTER, Respondent.
    No. 55178.
    Supreme Court of Florida.
    Jan. 17, 1980.
    Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, and Patti Englander, Asst. States Atty., Fort Lauderdale, for petitioner.
    David A. Hoines, Anthony N. Brimo, Jr., Fort Lauderdale, Walter G. Campbell, Jr., and Richard A. Barnett of Krupnick & Campbell, Fort Lauderdale, for respondent.
   SUNDBERG, Judge.

This case is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, reported at 362 So.2d 160. Because the decision of the district court directly affects the rights and duties of a class of constitutional officers — state attorneys — we have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. See Spradley v. State, 293 So.2d 697 (Fla.1974); Taylor v. Tampa Electric Co., 356 So.2d 260 (Fla.1978).

The question presented is whether a competent adult patient, with no minor dependents, suffering from a terminal illness has the constitutional right to refuse or discontinue extraordinary medical treatment where all affected family members consent. For the reasons expressed and based on the authorities cited by the trial court and the district court of appeal below, we answer the question in the affirmative and thereby approve the decision of the district court of appeal. Because of the clarity of reasoning and articulation of the applicable principles of law contained therein, little could be added by our reformulation of the matters set forth in the opinion below. Accordingly, we adopt the opinion of the district court as our own with the caveat that the reach of this decision does not extend beyond the particular facts presented in the case before us.

Ordinarily, this would end the matter. However, because of certain policy positions urged upon this Court by the respective parties, we deem it appropriate to clarify our action today.

The state urges initially that Mr. Perl-mutter enjoyed no constitutional right of privacy as recognized by the decision of the district court of appeal. More importantly, it is asserted that the question of “death with dignity” is a matter so complex that it should be left to the legislature, and the judiciary should abdicate to that process. We are told that the many variations of the problem and multiple issues subsumed under the general issue make it inadvisable at best for the Court to address the issue. On the other hand, counsel for the decedent and for the physician maintain that it is an issue which cries out for judicial resolution in a comprehensive manner so that physicians, public officials, hospitals and other citizens of the state may be guided in their future conduct.

As always seems to be the case, there is some merit in each assertion, but for that very reason we can fully embrace neither. Because the issue with all its ramifications is fraught with complexity and encompasses the interests of the law, both civil and criminal, medical ethics and social morality, it is not one which is well-suited for resolution in ail adversary judicial proceeding. It is the type issue which is more suitably addressed in the legislative forum, where fact finding can be less confined and the viewpoints of all interested institutions and disciplines can be presented and synthesized. In this manner only can the subject be dealt with comprehensively and the interests of all institutions and individuals be properly accommodated.

Nevertheless, preference for legislative treatment cannot shackle the courts when legally protected interests are at stake. As people seek to vindicate their constitutional rights, the courts have no alternative but to respond. Legislative inaction cannot serve to close the doors of the courtrooms of this state to its citizens who assert cognizable constitutional rights. As was observed by former Justice B. K. Roberts in an opinion of this Court concerning implementation of article I, section 6 of the Florida Constitution (guaranteeing public employees the right to collective bargaining) in the face of legislative inaction:

We think it is appropriate to observe here that one of the exceptions to the separation-of-powers doctrine is in the area of constitutionally guaranteed or protected rights. The judiciary is in a lofty sense the guardian of the law of the land and the Constitution is the highest law. A constitution would be a meaningless instrument without some responsible agency of government having authority to enforce it. . . When the people have spoken through their organic law concerning their basic rights, it is primarily the duty of the legislative body to provide the ways and means of enforcing such rights; however, in the absence of appropriate legislative action, it is the responsibility of the courts to. do so.

Dade County Classroom Teachers Ass’n v. Legislature, 269 So.2d 684, 686 (Fla.1972).

Consequently, although we recognize the limitations on the ability of the courts to address comprehensively the issue before us, at the same time, absent a response by the legislature, we will be obliged to proceed on a case by case method to meet an inscrutable problem fostered by advances in medical science.

The petition for writ of certiorari is granted, and the decision of the District Court of Appeal, Fourth District, is approved.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.

ADKINS, J., concurs in result only.


author: PER CURIAM.

text:
    Faye Louise PINKNEY, Appellant, v. Lenwood James HARLEY, Appellee.
    No. 56702.
    Supreme Court of Florida.
    Jan. 17, 1980.
    Joseph W. Howard, Asst. Court Commissioner, Jacksonville, and Joseph R. Boyd of Boyd, Harris & Smith, Tallahassee, for appellant.
    Jeffery B. Morris, Jacksonville, for appel-lee.
   PER CURIAM.

Reversed. State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979).

ENGLAND, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, J., dissents.


text:
    Clarence MOSS, Jr., Petitioner, v. Linda Gale RUSSELL, Respondent.
    No. 57013.
    Supreme Court of Florida.
    Jan. 17, 1980.
    Edward A. Dion of Feuer, Rockman & Joks, Miami, for petitioner.
    Joseph R. Boyd of Boyd, Harris & Smith, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979).

ENGLAND, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, J., dissents.


text:
    Nadine ALLEN et al., Appellants, v. Charles WILKERSON, Jr., Appellee.
    No. 57217.
    Supreme Court of Florida.
    Jan. 17, 1980.
    Charles L. Carlton and Geraldyne H. Carlton of Carlton & Carlton, Lakeland, and Joseph R. Boyd of Boyd, Harris & Smith, Tallahassee, for appellants.
    E. C. Watkins, Jr. of Watkins & Williams, Plant City, for appellee.
   PER CURIAM.

Reversed. State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979).

ENGLAND, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, J., dissents.


text:
    Roberto ROMERO, Petitioner, v. Marian YBARZ, Respondent.
    No. 57250.
    Supreme Court of Florida.
    Jan. 17, 1980.
    Stanley Jay Bartel and Robert A. Kanziger of Bartel & Shuford, Miami, for petitioner.
    Joseph R. Boyd of Boyd, Harris & Smith, Tallahassee, for respondent.
   PER CURIAM.

Affirmed. State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979).

ENGLAND, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Louis C. ROSETTI, Jr., Respondent.
    No. 57629.
    Supreme Court of Florida.
    Jan. 17, 1980.

      Claudos G. Spears, Bar Counsel, St. Pe-tersburg, and Michael C. Whittington, Asst. Staff Counsel, Tampa, for complainant.
    Richard T. Earle, Jr., St. Petersburg, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Louis C. Rosetti, Jr., 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(9)(b) 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.

Having considered the pleadings and evidence, the referee found Respondent guilty of:

1. Violating Rule 11.02(2), (3)(a), (b), of the Integration Rule of the Florida Bar;

2. Violating Disciplinary Rule 1-102A(3), (6) of the Florida Code of Professional Responsibility;

3. Violating Disciplinary Rule 6-101(A)(3) of the Florida Code of Professional Responsibility;

4. Violating Disciplinary Rule 1-102(A)(4), (5), (6) of the Code of Professional Responsibility; and

5. Violating Rule 11.02(3)(a) of the Integration Rule of the Florida Bar.

In addition to the referee’s recommendation of disciplinary measures, he made the following observations:

In recommending disciplinary measures, your Referee calls attention to Case No. 6C75-7, File No. 1914, in which this Respondent was cited for similar violations, some of which are commingled in time and substance with the charges brought here.
It is recalled that Respondent was cautioned in that case that his conditional plea, of guilty may well have been an unwise decision, considering circumstances in which the Respondent then found himself. Therefore, in making these recommendations, I wish to consider the violations here as a continuation of those to which Respondent entered a plea of guilty, at least to the extent that it is permitted under the Rules.
In hearing testimony and observing the Respondent, his personal, financial and emotional state, which lead to the previous charges, continued throughout the time that the present occasions of misconduct occurred. While it can be speculated that Respondent voluntarily should have ceased practice during these periods of instability, his dilemma in making such a decision, can readily be understood. His only tool to support his family is practicing law, and his pride prevented him from confiding in colleagues and seeking assistance.
All the charges are based on inexcusable neglect, and totally absent is any evidence that this Respondent is guilty of anything other than his past demonstrated inability to cope with the rigors attendant to the practice of law. Such demonstrated incompetence cannot be permitted to continue unchecked. It is the responsibility of every practitioner to uphold the Rules set by the Supreme Court, which are designed to preserve the integrity and reputation of the lawyer who daily encounters the arduous tasks in his profession.
The issue simply is whether, and if, the Respondent shall be given the opportunity to prove that he, as he vehemently contends, is now equipped to handle his office law practice. Obviously, even if we are satisfied that such is the case, complete freedom to practice law without further and periodic checks on his ability to perform such duties, cannot be granted.
Having heard and observed this witness, your Referee is convinced of Respondent’s sincerity and conviction that, given an opportunity he can now function as a practicing lawyer. The improyement in his demeanor and appearance is no less than dramatic.
In making the recommendations for discipline below, cognizance of the previous charges and disciplinary measures, was not taken lightly. Your Referee, however, has the advantage to have been Referee in that proceeding, and reiterates the belief that a conditional plea was unwise. A full hearing would, in all probability, have produced a difference [sic] decision. Equity and common sense, then, compel a recommendation based on consideration of both cases as one.

The referee recommends the following:

1. That the Respondent receive a public reprimand;

2. That Respondent be placed on supervised probation for a period of three (3) years, the conditions of which shall be:

(a) The filing by Respondent with the Clerk of the Supreme Court, with a copy to The Florida Bar, at three month intervals, (1) the names of clients for whom legal work has been completed during that period, with a statement of its nature; (2) a statement that all legal services, for which Respondent has been engaged by clients, has been performed to the extent that due diligence requires; and (3) a statement by Respondent’s counsel, Richard T. Earle, Jr., that he has met with Respondent periodically, reviewed his performance and work product, and that it is satisfactory; and

(b) Failure to observe the conditions of the probation, or a finding of probable cause as to conduct of the respondent committed during the period of probation, shall terminate the probation. In such event, even though such finding of probable cause shall be made after the expiration of the period of probation the judgment shall be reconsidered and an appropriate judgment shall be entered. On termination of probation for failure to observe the conditions of probation or on a finding of probable cause for misconduct committed during the period of probation the attorney may be punished for contempt or suspended from the practice of law on petition by The Florida Bar and any such suspension shall continue until the respondent may be reinstated to the practice of law as provided elsewhere in these rules. Fla.Bar Integr.Rule Art. XI, Rule 11.10(1).

Having carefully reviewed the record, we approve the findings and recommendations of the referee.

Accordingly, respondent, Louis C. Rosetti, Jr., is hereby publicly reprimanded and placed on supervised probation for a period of three (3) years. The publication of this order and judgment shall constitute a public reprimand.

Costs in the amount of $346.86 are hereby taxed against the respondent.

It is so ordered.

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


text:
    THE FLORIDA BAR, Complainant, v. Norman D. ZIMMERMAN, Respondent.
    No. 58201.
    Supreme Court of Florida.
    Jan. 17, 1980.

      Lance J. Thibideau, Asst. Staff Counsel, Fort Lauderdale, for complainant.
    Norman D. Zimmerman, Pompano Beach, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea to Public Reprimand.

On December 3, 1979, The Florida Bar filed its Petition alleging:

1. The Respondent, Norman D. Zimmerman, has been a member of The Florida Bar since 1957.
2. In early July, 1978, the Respondent' was attorney for the purchaser and seller of a piece of real property.
3. The Respondent charged the purchaser a fee for his representation as well as an additional amount for title insurance.
4. The Respondent allowed the real estate transaction to close prior to reviewing the abstract of title.
5. The abstract of title was delivered to the Respondent sometime in July, 1978 but was misplaced in the Respondent’s office for approximately three to four months.
6. Prior to the Respondent delivering title insurance to the purchase, the purchaser was advised by a lending institution that there was a mortgage on the piece of property which mortgage was in default.
7. Respondent took until May 17, 1979 to have the mortgage released from the Complainant’s property.
8. The Respondent after succeeding in having the mortgage released, issued title insurance to the Complainant.
9. The Board of Governors of The Florida Bar directed that a consent judgment to public reprimand be tendered to the Respondent.
10. On November 5, 1979, the Respondent accepted the plea to a public reprimand tendered by The Florida Bar.
11. By accepting the tendered plea to a public reprimand, the Respondent pleads guilty to violating Disciplinary Rules 5-105(A), 6-101(A)(3) and 7-101(A)(1) and (3) of the Code of Professional Responsibility of The Florida Bar.

The Petition for Approval of Conditional Guilty Plea to Public Reprimand is granted, and Respondent, Norman D. Zimmerman, is hereby disciplined by public reprimand to be published in Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $420.00 are hereby taxed against the Respondent.

It is so ordered.

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


text:
    Roosevelt WILSON et al., Petitioners, v. Jessie M. KIRKSEY et al., Respondents.
    No. 53701.
    Supreme Court of Florida.
    Jan. 17, 1980.
    Jim Smith, Atty. Gen., and Pamela L. Lutton, Asst. Atty. Gen., Tallahassee, and Daniel H. Thompson of Legal Services of North Florida, Inc., Tallahassee, for petitioners.
    Joseph R. Boyd of the Law Firm of Boyd, Harris & Smith, Tallahassee, for respondents.
   On Rehearing

PER CURIAM.

Affirmed. State of Florida, Department of Health and Rehabilitative Services v. West, 378 So.2d 1220 (Fla.1979).

ENGLAND, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, J., dissents.


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

text:
    John A. DRAGSTREM and Janet K. Dragstrem, his wife, Appellants, v. Willis N. BUTTS and Elizabeth L. Butts, his wife, Appellees.
    No. LL-458.
    District Court of Appeal of Florida, First District.
    Oct. 25, 1979.
    On Rehearing Jan. 24, 1980.
    John A. Dragstrem, in pro. per.
    William H. Maness of Maness & Kacher-gus, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Dragstrem appeals from a final summary judgment of foreclosure, holding that the purchase money mortgage held by Butts, the seller and mortgagee, is a lien on Drag-strem’s land to the extent of unpaid principal and interest, together with fees and costs, due under the mortgage note, and ordering the property sold' to satisfy the lien. This property was the subject of related fraud litigation, ended adversely to Dragstrem, by Butts v. Dragstrem, 349 So.2d 1205 (Fla. 1st DCA 1977), cert. den., 361 So.2d 831 (1978).

The court did not err in considering the motion for summary judgment while Drag-strem’s motion to dismiss was pending and before he answered. Fla.R.Civ.P. 1.510(a). But it appears from the irregular “response” and affidavit filed by Dragstrem opposing the summary judgment motion that Dragstrem may have, and be able to plead and prove, a right to set off against the mortgage note indebtedness the damages he says he sustained as the result of Butts’ breach of a warranty of title, in the deed of conveyance, as a result of which Dragstrem was disabled to consummate a sale of the land to a third party buyer. While a breach of a warranty of title by the seller-mortgagee is not as such a complete defense to foreclosure, absent eviction of the mortgagor or actionable fraud by the mortgagee, the damages sustained by the mortgagor resulting from the breach may be set off against or recouped from the outstanding mortgage debt. Adams v. Fry, 29 Fla. 318, 10 So. 559 (1892); Johnson v. Green, 54 So.2d 44 (Fla.1951); Coy v. Downie, 14 Fla. 544 (1874); Etter v. State Bank of Florida, 76 Fla. 203, 79 So. 724 (1918); 3 Jones, Mortgages, Section 1906 (8th ed. 1928); Hendricks v. Stark, 99 Fla. 277, 126 So. 293 (1930). In keeping with the usual strictures against summary judgments, none should have been entered unless and until Butts demonstrated that there was no genuine issue as to the material facts asserted by Dragstrem on the record and that Butts was entitled to judgment as a matter of law. Dragstrem should have been allowed to attempt a pleading of his partial defense, or set-off, for breach of a warranty of title.

REVERSED.

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

ON PETITION FOR REHEARING

ROBERT P. SMITH, Jr., Judge.

Appellees, by their petition for rehearing, have called to our attention that Dragstrem’s potential cause of action for breach of warranties of title, described in my opinion filed October 25, 1979, was pleaded as such by count II of Dragstrem’s amended complaint, filed February 6, 1976, and was tried before a jury in the proceedings which led to the judgment considered and reversed by our decision in Butts v. Dragstrem, 349 So.2d 1205 (Fla.1st DCA 1977), cert. den., 361 So.2d 831 (Fla.1978). Dragstem’s count II, alleging damages sustained as a result of a breach of warranties of title, was withdrawn from the jury’s consideration by a directed verdict for Butts, for failure of proof by Dragstrem. The trial court judgment therefore terminated Dragstrem’s alleged cause of action as described in my opinion for the court filed October 25, 1979, and Dragstrem did not cross-appeal that adverse ruling when we considered and vacated his fraud judgment more than two years ago. The termination of that warranty claim on the merits, for failure of proof, is conclusive against Dragstrem on principles of res judicata. Gordon v. Gordon, 59 So.2d 40 (Fla.1952); Cole v. First Development Corp. of America, 339 So.2d 1130 (Fla.2d DCA 1976).

We have considered whether Drag-strem failed in proving “purely technical” or preliminary matters essential to his claim, rather than its essential merits, so avoiding the res judicata effect of prior litigation. E. g., Kent v. Sutker, 40 So.2d 145, 147 (Fla.1949). It appears he did not introduce the warranty deed into evidence, so he failed to prove the alleged warranties. He also failed to prove the title defects which allegedly gave rise to the breach of warranties of title. The directed verdict rested on those grounds. However readily the missing evidence might have been adduced, it was central to the merits of Drag-strem’s claim, and the ruling against Drag-strem was on the merits. Res judicata bars Dragstrem’s warranty claim.

The petition for rehearing is GRANTED and the judgment of the circuit court is AFFIRMED.

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


text:
    Douglas POLK, Petitioner, v. Maurice CROCKETT, Respondent.
    No. SS-407.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1979.

      Douglas Polk, pro se.
   PER CURIAM.

This cause is before us upon an unsigned petition for a writ of habeas corpus. While such a petition does not require a meticulous observation of the rules of pleading, Sneed v. Mayo, 66 So.2d 865 (Fla.1953), it is nevertheless a general rule that the petition must be verified. 39A C.J.S. Habeas Corpus § 168(c) (1976). And § 79.01, Fla.Stat., requires that such a petition shall be granted only upon “affidavit or evidence. . . ”

Accordingly, said petition is denied, without prejudice to the right of the petitioner to refile a verified petition.

MILLS, C. J., and LARRY G. SMITH and WENTWORTH, JJ., concur.


text:
    Douglas POLK, Petitioner, v. Maurice CROCKETT, Respondent.
    No. TT-187.
    District Court of Appeal of Florida, First District.
    Jan. 28, 1980.
    Douglas Polk, pro se.
    No appearance by respondent.
   PER CURIAM.

The Petition for Habeas Corpus asserts arbitrary and erroneous application of parole release guidelines. Factual matters are alleged, but no record is provided, nor does the petition show that administrative remedies under Section 947.173, Florida Statutes (1979), have been exhausted. The petition is denied. See Richmond v. Wainwright, 378 So.2d 890, 1979, and cases therein cited.

McCORD, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    John Bruce WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. MM-134.
    District Court of Appeal of Florida, First District.
    Dec. 27, 1979.
    Rehearing Denied Feb. 25, 1980.
    Stephen H. Donohoe, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appel-lee.
   PER CURIAM.

Appellant was informed against in 1975 for assault to murder in the first degree, sexual battery, and kidnapping. He filed a petition to have himself declared a mentally disordered sex offender and was examined by two psychiatrists. In August 1975, pursuant to plea negotiations, appellant entered a plea of guilty to sexual battery in return for which he would receive a life sentence and commitment for treatment as a mentally disordered sex offender. The trial court approved the negotiated plea and sentence.

Subsequent to those proceedings, the Florida Supreme Court reversed a conviction in a case wherein the defendant was sentenced to 35 years in prison and institutionalized as a mentally disordered sex offender pursuant to Section 917.19, Florida Statutes (1975). Gammill v. Wainwright, 357 So.2d 714 (Fla.1978). Because of the holding in that case, Williamson filed a motion under Rule 3.850, Florida Rules of Criminal Procedure, alleging that his sentence was illegal. The trial judge, after a hearing, denied Williamson’s motion. Williamson appealed.

We affirm. The circumstances in Gam-mill, supra, are distinguishable from those in this case. In Gammill the defendant had merely pled guilty and then requested to be examined to determine whether he would qualify for treatment as a mentally disordered sex offender. The trial judge determined that Gammill was a mentally disordered sex offender and then sentenced him to prison as well as institutionalizing him at a state hospital. The Supreme Court found, at 716, that Gammill’s rights were prejudiced by the trial judge’s actions.

In this case, however, it is difficult to see how appellant was prejudiced. He had been charged with three very serious crimes. He then, on advice of counsel, agreed to a sentence, which resulted from negotiations, that allowed two of the charges against him to be dropped in exchange for the sentence he received- and the declaration that he was a mentally disordered sex offender. Because the trial judge’s sentence reflected what Williamson apparently found to be in his best interests, it is too late for him to complain.

AFFIRMED.

McCORD, LARRY G. SMITH and SHIVERS, JJ., concur.


author: SHIVERS, Judge.

text:
    Alice R. GILBERT, Appellant, v. TRAVELERS INDEMNITY COMPANY and State Farm Fire and Casualty Company, an insurance corporation, Appellees.
    No. NN-264.
    District Court of Appeal of Florida, First District.
    Dec. 27, 1979.
    Rehearing Denied Feb. 25, 1980.
    David M. Wiesenfeld of Dawson, Galant, Maddox, Sulik & Nichols, P.A., Jacksonville, for appellant.
    Earl M. Barker of Marks, Gray, Conroy & Gibbs, and John M. McNatt, Jr., Jacksonville, for appellees.
   SHIVERS, Judge.

Appellant’s real property was partially destroyed by fire on June 23, 1977. At the time of the fire, appellant owned a homeowner’s policy issued by Travelers with limits of $20,000 for the insured dwelling, $10,-000 for unscheduled personal property, and $4,000 for additional living expenses. The Travelers’ policy contained the following provisions:

“This company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved, whether collectible or not.”
“The company shall not be liable for a greater proportion of any loss from any peril or perils included in this policy than (1) the applicable limit of liability under this policy bears to the whole amount of fire insurance covering the property, or which would have covered the property except for the existence of this insurance, whether collectible or not, and whether or not such other fire insurance covers against the additional peril or perils insured hereunder. . . . ”

On June 8, 1977, appellant was notified •by Travelers that her Travelers policy would be cancelled effective July 8, 1977. On June 16, 1977, appellant purchased a homeowners policy on the same premises from State Farm Fire and Casualty Company which contained limits of $29,000 for the insured dwelling, $14,500 for unscheduled personal property, and $5,800 for additional living expenses. Appellant misstated on the application for the State Farm policy that she had never received a notice that insurance on the premises would be can-celled.

Appellant applied for benefits under both policies. State Farm refused to pay benefits under its policy on the grounds of the misstatement in the application, and returned the premium. Travelers refused to pay the full claim, but did pay prorated benefits pursuant to the provisions quoted above.

Appellant brought suit against Travelers and State Farm to collect benefits under the respective policies. State Farm counterclaimed to rescind its policy. The trial court granted State Farm’s motion for summary judgment which had the effect of ruling that the policy was void from the date of issuance because of the misrepresentation. Travelers thereafter moved for summary judgment alleging that it was liable only for prorated benefits and that those benefits had been paid. The trial court granted Travelers’ motion for summary judgment. This appeal is from the summary jüdgment entered in favor of Travelers. The- summary judgment entered in favor of State Farm is not involved.

There is no Florida decision that is dispos-itive of this matter, and there is a division of authority from other jurisdictions. We recognize the general validity of pro rata contribution clauses. Such provisions take away any motive the property owner might have to destroy his property or to fail to take all reasonable steps to save his property. Additionally, insurance companies are relieved of the burden of litigating the col-lectibility of other policies covering the property.

Whether the pro rata contribution provisions of the Travelers policy encompass the State Farm policy that was void from the time of issuance depends on the construction given these provisions. Ambiguous provisions in insurance contracts are liberally construed and enforced so as to protect the insured. Here the insured paid a full premium to Travelers and suffered a loss. The State Farm policy was declared void upon the pleading and proof of State Farm. There is no evidence of fraud. We construe the pro rata provisions as applying only to other valid insurance policies, “whether collectible or not.” Travelers is not entitled to prorate benefits under the facts of this case.

Reversed and remanded for proceedings consistent with this opinion.

McCORD and LARRY G. SMITH, JJ., concur.