author: BOOTH, Judge. ERVIN, Judge,

text:
    Louis E. FISCHER, Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. NN-306.
    District Court of Appeal of Florida, First District.
    June 23, 1980.
    Rehearing Denied July 18, 1980.
    Joseph Z. Fleming, Miami, for petitioner.
    Jim Smith, Atty. Gen., and Barbara Sta-ros Harmon, Asst. Atty. Gen., for respondent.
   BOOTH, Judge.

This cause is before us on appeal from final agency action by the Department of Revenue (Department) upholding a sales tax deficiency, delinquent penalty and interest assessed against Petitioner Fischer on account of his purchase of an airplane. The facts, as found by the hearing officer, are:

On November 24, 1976, petitioner purchased an airplane (the Corsair) in Florida from R. D. Whittington Aircraft Sales, Inc., for which he paid eighty thousand dollars ($80,000.00). Sales tax has never been paid on account of this transaction.
Before the purchase, petitioner asked George W. Sullivan, an airplane mechanic and test pilot, to evaluate the Corsair as an investment for resale. After petitioner acquired the Corsair, he caused three new cylinders to be installed and had the carburetor, the magneto and the propeller overhauled. Within three or four months of petitioner’s acquisition, several prospective purchasers had inspected the Corsair. In the spring of 1977, petitioner began displaying the Corsair. At various times, petitioner engaged other pilots to ferry the Corsair to aircraft shows at Cherry Point, North Carolina, Greenville-Spartanburg, South Carolina, and elsewhere. At the time of the hearing, the Corsair had been flown approximately 43 hours since petitioner had acquired it, ten to twelve hours of which petitioner flew himself, in the course of displaying the Corsair and checking out repairs.
Petitioner has traded in airplanes for the last several years and has been recognized as a dealer in aircraft by the Internal Revenue Service. Petitioner, who moved to Florida from California, applied to respondent for a dealer’s certificate promptly upon learning that he was required to do so. On November 24, 1976, however, petitioner was not registered as an aircraft dealer with respondent. After an unsuccessful attempt to register effective retroactively to July 1, 1972, petitioner registered as a dealer with respondent, effective October 1, 1977. According to respondent’s records, R. D. Whittington Aircraft Sales, Inc., was not registered as a dealer with respondent on November 24, 1976, and has not registered since.
Petitioner obtained an address for R. D. Whittington Aircraft Sales, Inc., from respondent and, on or about December 20, 1977, sent by certified mail a blanket resale and exemption certificate to the address respondent had furnished. A return receipt indicated that the certificate was delivered as addressed. In the past, respondent has treated sales to dealers as exempt from sales tax where the purchaser furnished the seller a resale and exemption certificate at the time of the sale and even when the certificate has been furnished afterwards, where the purchaser was registered as a dealer with respondent at the time of the transaction.

The facts as stated by the hearing officer and shown on the record establish that petitioner was (1) a dealer, and (2) purchased the Corsair aircraft for the purpose of resale. The Department, however, relies on its Rule 12A-1.38 F.A.C. to disqualify the transaction from exemption. The same rule was relied on by the Department and the hearing officer in disallowing the exemption as to boats purchased for rental purposes in Anderson v. Department of Revenue, 380 So.2d 1083 (Fla. 3d DCA 1980). That determination was reversed by the District Court of Appeal, Third District, holding:

The question of whether a taxpayer may avoid the assessment of a tax by showing that the use was for an exempt purpose when the taxpayer failed to file the required dealer’s certificate prior to the sale has not been determined in Florida, so far as we have been able to discover. In the situation reflected by the finding of the examiner in this case, we hold that it would be grossly unfair not to allow the taxpayer to show the true situation. It must be borne in mind that a tax has been collected from the user in many of the situations covered by this assessment. .
Additionally, the Department of Revenue, as found by the examiner, changed its position with regard to the necessity for the dealer’s certificate during the progress of its determination of the tax due from the sale of the appellants’ boats. This change of position seriously handicapped the appellants in their attempts to satisfy the Department concerning the taxable status of the sales. We hold that the appellants had a right to rely upon the interpretation of the statute as originally set forth. See the principle enunciated in Outdoor Advertising Art v. Florida Department of Transportation, 366 So.2d 114 (Fla. 1st DCA 1979).

In the Anderson case, the DOR sought to assess a deficiency against the seller of sailing vessels because the various purchasers of the boats were not registered dealers at the time of the sales. The evidence showed that the boats were in fact purchased for the exempt purpose of rental, but that Rule 12A-1.38 was not complied with, as stated by the hearing officer, and quoted by the District Court, in the Anderson case:

The basic question for determination is whether registration as a dealer and submission of a resale certificate some months after the date of sale, as was done in the transactions under consideration, can relate back and provide exemption for such sales. . . . Although it is apparent that the exempt status of the various boat purchases could have been established if the purchasers had been registered as dealers at the time of sale, no evidence has been submitted by Petitioner that they were then so registered or had otherwise complied with the above provisions of Rule 12A-1.38. In view of such failure of proof, relief cannot be granted from the proposed tax assessment with respect to the sales price of the vessels and the interest and penalties thereon.

The foregoing determination was reversed by the District Court in Anderson, and the court held that the tax exempt status could be established and certificates obtained subsequent to the sale in accord with the Department’s prior practices. We agree.

Accordingly, the order below is REVERSED and the cause REMANDED with directions that the assessment be vacated.

LARRY G. SMITH, J., concurs.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I understand neither the rationale of the Third District Court of Appeal’s decision in Anderson v. State, Dept. of Revenue, 380 So.2d 1083 (Fla. 3d DCA 1980), nor that of the majority here. The Anderson court’s reasoning was based upon three vague premises: (1) It would be grossly unfair not to allow the taxpayer (a dealer in sailing vessels) to show the “true situation”; (2) the imposition of both the sales and rental tax constituted double taxation, and (3) the tax should not be imposed because the department changed its position concerning the necessity for a dealer’s certificate during the pendency of the proposed assessment proceedings.

It is unclear from Anderson whether it based its reversal upon legal or equitable grounds. Unquestionably the department has the authority to adopt a rule requiring a dealer to either collect the tax or take a valid resale certificate from the purchaser at the time of the transaction. See, Section 212.02(3)(a), Florida Statutes (1977), providing that a resale must be in strict compliance with the department's rules. While it is true that Rule 12A-1.38 provides no time limitations for the dealer’s acceptance of the resale certificate, the agency’s interpretation of the rule is entirely consistent with Sections 212.06(l)(a), .06(3), and .11(1), variously requiring the dealer to collect the 4% sales tax at the moment of the sale from the purchaser, requiring him to pay the tax monthly on the first day of each month, and to make a return on or before the 20th day of the month to the department showing gross sales or purchases arising during the preceding month.

It has long been recognized that administrative rules of the Department of Revenue interpreting sales and use tax statutes are to be accorded considerable weight by the court. Klosters Rederi A/S v. State, etc., 348 So.2d 656, 660 (Fla. 3d DCA 1977); State ex rel. Szabo Food Services, Inc. of N. C. v. Dickinson, 286 So.2d 529 (Fla.1973). We recently rejected a challenge to Rule 12B-5.03, which urged that the rule imposes a tax for the failure to keep records and, as such, the rule exceeds the department’s rulemaking authority. In Pioneer Oil Co., Inc. v. State, etc., 381 So.2d 263 (Fla. 1st DCA 1980), Pioneer, a licensed dealer of fuels, complained that the department was without authority to require it to remit a tax from fuel sales merely because the purchaser failed to furnish it with a resale certificate. Even though we recognized the exempt nature of the transaction, we denied Pioneer’s claim for a refund stating: “[N]one of these [purchasers’] certificates contained a dealer’s license number and none of the purchasers were dealers when the fuel was sold. There being no valid certificates to transfer the obligation, Pioneer remained responsible for collecting and paying the tax.” Id. at 265. (e. s.) Accord, Belcher Oil Company v. State, Dept. of Revenue, 382 So.2d 793 (Fla.lst DCA 1980), where we observed that Rule 12B-5.-03 “merely implements the taxing statutes, and does not exceed the authority conferred by Section 206.59(1) to make rules and regulations having the force and effect of law governing reports and accounts by persons dealing with motor fuel in this state, . .” Clearly then the department’s policy, expressed in both rules 12A-1.38, and 12B-5.03, is consistent with the authority conferred to it by the taxing statutes, and the department was authorized to require the collection of the tax even though the seller later received a dealer’s resale certificate from the purchaser.

The Anderson court’s reference to double taxation is equally vague. In the absence of Rule 12A-1.71(2), providing that equipment purchased solely for rental purposes is exempt at the time of its acquisition, the department undoubtedly could levy a sales tax upon the sale of a boat, and then a rental tax upon the same boat. As was observed in Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822, 825 (Fla.1964), multiple taxes levied upon the same motor vehicle do not constitute pyramiding or a duplication of the tax since each is placed on a separate and distinct taxable privilege. In each case the tax is passed on by the taxpayer to his customer. If the department has the authority to require that a resale certificate be received on or about the time of the sales transaction — a subject not discussed in Anderson — then there would be no bar to its levy of both taxes upon the different activities of the same boat. Under the circumstances, I fail to see any element of double taxation either in Anderson or here.

Although the Anderson opinion does not expressly mention estoppel, but rather refers generally to gross unfairness and the department’s change of position, the elements of estoppel may have there been present. Still, before estoppel can be sustained as a basis for relief against the taxing authority, it, and all its elements, must be specifically alleged. Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979). Those elements include (1) a representation by the party estopped to the party claiming estoppel as to some material fact, (2) a reliance upon the representation by the party claiming the estoppel, and (3) a change in such party’s position, caused by his reliance to his detriment. Greenhut Construction Co., Inc. v. Knott, 247 So.2d 517 (Fla. 1st DCA 1971). In Anderson, a representation was made to the taxpayer by one of the department’s agents that a refund could be obtained from the dealer if the vessel he had purchased was solely for rental purposes, provided he forwarded a resale certificate to the seller. The taxpayer apparently relied upon this representation to his detriment in later sales of boats which were to be used exclusively for rental purposes by not collecting the tax from his purchasers. Cf. Davis and Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977).

The facts here are altogether different. The findings entered by the hearing officer reveal that no representation was made by the department to the taxpayer before his purchase of the aircraft. Estoppel then is clearly not a defense available to the taxpayer. Moreover, the hearing officer found that the department “treated sales to dealers as exempt from sales tax where the purchaser furnished the seller a resale and exemption certificate and when the certificate [was] furnished afterwards, where the purchaser was registered as a dealer with the respondent [the department] at the time of the transaction.” (e. s.) Here, Fischer did not register as a dealer with the department until approximately eleven months following the sales transaction, and did not furnish a resale certificate to the dealer until more than a year later. Consequently there was no change of department policy even remotely affecting Fischer.

The majority’s opinion represents little more than a judicially created exemption to the taxing statutes, and is an unwarranted deviation from the expressed legislative intent that all sales be taxed except those that are “specifically . . exempted by this chapter . . . .” Section 212.-21(2).

      . Rule 12A-1.38, F.A.C., in pertinent part:
      (1) It is the specific legislative intent that each and every sale, admission, use, storage, consumption or rental is taxable under Chapter 212, F.S., unless such sale, admission, use, storage, consumption or rental is specifically exempt. The exempt status of the transaction must be established by the dealer. Unless the dealer shall have taken from the purchaser a certificate to the effect that the property or service was purchased for resale and bearing the name and address of the purchaser and the number of his dealer’s certificate of registration or a certificate bearing the number of his consumer’s exemption certificate, the sale shall be deemed to be a taxable sale at retail.
      * * * * # *
      (3) A dealer shall refuse to accept a resale certificate, except as provided in Rule 12A-1.64(23), and shall collect the tax unless the purchaser has obtained a dealer’s certificate of registration from the Department of Revenue and the number of his dealer’s certificate of registration is stated on the resale certificate.

      . See, Belcher Oil Co. v. State, 382 So.2d 793 (Fla. 1st DCA 1980), wherein this court commented on Anderson, in part, as follows:
      It had apparently been the Department’s practice to allow a purchaser to register as a dealer and submit a resale certificate some months after the date of sale, thereby retroactively qualifying the sale as exempt. This change of position on the part of the Department was obviously a significant factor in the court’s decision reversing the tax assessment in that case.

      . While the burden is placed upon the seller to collect the sales tax, Section 212.06(3), the person who purchased the tangible personal property at retail may be liable for the payment of the tax if he cannot prove the tax was paid to the vendor. Section 212.07(9).

      . Rule 12B-5.03, adopted pursuant to Chapter 206, taxing fuels, requires precisely as does Rule 12A-1.38 that unless the buyer furnishes the dealer a resale certificate, the dealer is required to collect and remit the tax to the department.

      . Even if it were the law, which clearly it is not, that the taxing authority may be estopped by changing its position in other cases not involving the taxpayer, the facts as above noted are markedly different from those in Anderson. The department’s agents there permitted purchasers of rental equipment following the sales to register with the department as dealers and to furnish to the sellers resale certificates. The agents apparently considered their policy consistent with Rule 12A-1.71(2), which exempts sales of rental equipment from the sales tax. There is no showing either from this record or from the facts recited in Anderson that the department ever allowed a purchaser not registered as a dealer at the time of the sale to file, following the sale, a resale certificate with the seller — except in those instances when the property sold was rental equipment. The property sold here was not intended for rental purposes but purportedly for resale.


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    CITY OF JACKSONVILLE, Appellant, v. John ACKER, John Pialorsi, Malcolm Carmichael and Bobby Jackson, Appellees.
    No. 00-277.
    District Court of Appeal of Florida, First District.
    June 23, 1980.

      Dawson A. McQuaig, Gen. Counsel, William Lee Allen, Asst. Counsel, and David C. Carter, Asst. Counsel, Jacksonville, for appellant.
    No appearance for appellee.
   WENTWORTH, Judge.

The City of Jacksonville (City) appeals the trial court’s judgment construing the terms of a city ordinance to be ineffective to prevent police entitlement to a service pay increase provided by the ordinance, although the Fraternal Order of Police (FOP) had not bargained for the increase. We affirm.

On October 1, 1977, a collective bargaining agreement (agreement) between the FOP and the City became effective. At that time, Section 102.301, Municipal Code, provided for a $240 service increase to employees based on five year increments. The agreement did not specifically mention this ordinance or service pay increases but contained a savings clause which provided:

All matters pertaining to terms of employment and working conditions guaranteed by law to employees within the bargaining unit shall apply to the extent that they are not in conflict with the provisions of this agreement.

The plaintiffs, FOP members and negotiators, testified they had understood that service increases had been, and were in 1977, non-negotiable. The chief negotiator for the City agreed that the City’s previous position had been that service raises were non-negotiable.

After completing the contract negotiations with FOP and entering into the agreement, the City apparently changed its policy and negotiated with three other bargaining units an increase in the service raises to $300. This increase was effected by Ordinance 78-1202-571. FOP requested that its members receive the service increase and the City refused, contending they were not entitled to it since it had not been negotiated. The City then passed Ordinance 78-1400-713, after the proceeding before us had been initiated, purporting to clarify the intent of Ordinance 78-1202-571, and stating that it was prospective only and that, where bargaining agreements existed with savings clauses, those clauses referred only to the law as it existed on the date of the agreement. The City refused to pay FOP members the service pay increase and FOP’s class action for declaratory and other relief proceeded to judgment.

Although the question of jurisdiction was not raised by the parties, we have first considered whether the Public Employees Relations Commission (PERC) should be accorded exclusive jurisdiction of the issues raised. After examining the applicable law, we conclude that the cause is not within the exclusive jurisdiction of PERC. See Maxwell v. School Board of Broward County, 330 So.2d 177 (Fla. 4th DCA 1976). The action in both form and substance is one to determine the effect of the City’s ordinance. Relief was accorded by construing the provision of Ordinance 78-1202-571 granting a service raise “unless ‘a different amount of increase ... is provided in a collective bargaining agreement approved by the Council and in force and effect, then the terms of the agreement shall prevail . .’ ” That language in turn required interpretation of the collective bargaining agreement savings clause, supra. The effect of the final judgment is to hold that Ordinance 78-1202-571 grants the raise to plaintiffs because the above quoted exception in the ordinance does not apply to plaintiffs’ agreement, which preserved all non-negotiated benefits “guaranteed by law” without restriction to the terms of then existing law. The order does not refer to the later ordinance containing an attempted unilateral addendum to such agreements, but we conclude appellant has shown no error in this respect.

The savings clause in the agreement is susceptible of the interpretation that benefits under law are non-negotiable and not controlled by the agreement, and the evidence supports this conclusion reached by the trial court. The plaintiffs testified they believed the raises were non-negotiable pri- or to and at the 1977 session; the City’s chief negotiator agreed the raises had been non-negotiable prior to 1977. The evidence was conflicting regarding the status of the service raises at the 1977 bargaining sessions, but such evidentiary conflicts are for the trial court to resolve and its finding will not be disturbed on appeal unless clearly erroneous. Brune v. Kings Creek of Gainesville, Inc., 317 So.2d 848 (Fla. 1st DCA 1975).

Accordingly, the judgment of the trial court is affirmed.

McCORD and LARRY G. SMITH, JJ„ concur.


author: PER CURIAM.

text:
    James J. JAMES, Appellant, v. George DuBREUIL, Appellee.
    Nos. 79-1636, 79-1637.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied July 31, 1980.
    Greenfield & DuVal and Harvie S. Du-Val, North Miami, for appellant.
    Adams & Ward and Robert C. Ward, Miami, for appellee.
    Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment under review and the order denying Fla.R.Civ.P. 1.540 relief under review are affirmed upon a holding that: (1) there was competent substantial evidence in this record to support the trial court’s finding that the plaintiff had no right to an accounting based on the June 29, 1971 agreement between the parties [plaintiff’s exhibit no. 2], as prayed for in the amended complaint, because (a) such agreement was unenforceable as it was unsupported by good and valuable consideration, and (b) the consideration recited in such agreement was invalid as it was based on a transfer of stock which the plaintiff was already obligated to make by virtue of a valid July 7, 1966 option agreement between the parties; and (2) no fraud sufficient to vacate the final judgment under Fla.R.Civ.P. 1.540(b)(3) has been shown on this record. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); F. L. Stitt & Co. v. Powell, 94 Fla. 550, 114 So. 375 (1927); Slattery v. Wells Fargo Armored Service Corp., 366 So.2d 157, 159 (Fla. 3d DCA 1979); Cuna Mutual Insurance Society v. Adamides, 334 So.2d 75, 76 (Fla. 3d DCA 1976); Delallo v. Food Palace, Inc., 330 So.2d 835, 836-837 (Fla. 3d DCA 1976).

Affirmed.


author: HERSEY, Judge.

text:
    Mary TATE, Appellant, v. AETNA INSURANCE COMPANY, Appellee.
    No. 79-784.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    Ralph L. Flowers, Fort Pierce, for appellant.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for appellee.
   HERSEY, Judge.

This is an appeal from a final order dismissing appellant’s complaint against Aetna Insurance Company with prejudice. We will limit our discussion to those facts essential to determination of the single issue before us.

In 1977, appellant obtained a judgment against Custom Harvestors, Inc. in a replev-in action. Appellee, Aetna, was the surety on the replevin bond issued to Custom Harvestors in that action. Subsequently, Custom Harvestors changed its corporate name and rearranged its corporate assets in a manner not clearly specified in the record. As a result, appellant brought an action for declaratory relief against the corporation, two of its principals and Aetna for a determination of the parties’ respective rights and liabilities under the 1977 judgment.

After the parties had exchanged numerous pleadings, a third amended complaint was dismissed with prejudice; preserving, however, appellant’s right to file a fourth amended complaint against appellee, Aetna, only. Subsequently, the trial court dismissed the fourth amended complaint with prejudice, finding:

. that the plaintiff and her attorney have prejudiced the rights of the surety and in effect released the security for the bond by their actions in bringing about the Order of November 7, 1978 in which the Third Amended Complaint was dismissed as to all principals in this action. By thus impairing the surety for the bond, Plaintiff has released the surety from any further liability in this matter.

Underlying this order is a determination by the trial court that appellant’s failure to appeal the order dismissing the third amended complaint with prejudice resulted in that order becoming an adjudication on the merits as to appellant’s claim against Custom Harvestors. The trial court apparently reasoned that this inaction by appellant had the effect of prejudicing Aetna’s eventual right to indemnity from Custom Harvestors and therefore, Aetna was no longer liable since a surety’s liability is measured by that of the principal and cannot exceed it. The trial court followed the rule that if the principal is released, even inadvertently, then the surety is released.

The order from which no appeal was taken is res judicata as to those causes of action contemplated by the third amended complaint. However, the record does not convince us that no cause of action could be stated in a suit brought by appellant against Custom Harvestors based upon the existing final judgment in replevin. Custom Harvestors was not, as a matter of law, discharged from liability on that judgment by virtue of the dismissal of the third amended complaint. Therefore, Aetna’s right to indemnity was not substantially and finally prejudiced.

Although the trial court dismissed five complaints, only one dismissal was on the basis that appellant failed to state a cause of action against Aetna.

The order dismissing the original complaint made no disposition of the motion to dismiss filed by Aetna. The order dismissing the first amended complaint again did not determine that no cause of action was stated against Aetna. A second amended complaint was filed, followed by defensive motions, whereupon leave was given to file a third amended complaint to which those responsive motions were deemed to apply. Thus, there was no determination that the second amended complaint failed to state a cause of action against Aetna.

The third amended complaint was then dismissed for failure “to state any cause of action against any of the Defendant parties.”

A fourth amended complaint was dismissed as to Aetna based upon the finding that plaintiff had prejudiced Aetna’s indemnity rights. Accordingly, we reject ap-pellee’s argument that the trial court’s decision should be affirmed on the alternative basis that in five complaints appellant failed to state a cause of action against Aetna.

We hold that Aetna’s indemnity rights were not prejudiced by any meaningful and relevant action of appellant. In fact, it is not clear from the pleadings whether those rights have been prejudiced at all. Further, if the allegations that Custom Harvesters, the principal, has been looted of all its assets are taken as true, there is no showing that Aetna’s indemnity rights were worth anything in the first instance. This is precisely the reason for requiring a bond in replevin actions, to ensure that the party from whom possession is wrongfully taken will have recourse whether or not the wrongdoer remains solvent. To refuse to permit appellant to file an amended complaint under these circumstances was an abuse of discretion.

We therefore reverse the order dismissing the fourth amended complaint with prejudice and remand this cause with directions that appellant be permitted to file a fifth amended complaint and for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

DOWNEY and HURLEY, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    SOUTHERN STEEL INDUSTRIES, INC., a Florida Corporation, Appellant, v. VACATION PLANS, INC., a Delaware Corporation, et al., Appellees.
    No. 78-1423.
    District Court of Appeal of Florida, Fourth District.
    June 25, 1980.
    Michael P. Smodish of Reed & Smodish, P. A., Boynton Beach, for appellant.
    Harold A. Lassman of Shafmaster & Katz, Miami, for appellee Tappan Zee Corp.
    No appearance for Vacation Plans, Inc.
   PER CURIAM.

AFFIRMED.

MOORE and HURLEY, JJ., concur.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

The appellant’s action was dismissed for lack of prosecution. At issue is whether a party’s failure to respond to a request for admissions constitutes activity under the provisions of Florida Rule of Civil Procedure 1.420(e).

On April 11, 1977, the appellant filed of record a detailed set of requests for admission to the then only party defendant in the action, Vacation Plans, Inc. By letter of June 1, 1977, appellant’s counsel notified the defendant’s counsel that no response had been received and further stated that if a response was not received by June 13, 1977, a motion for summary judgment would be filed predicated on the admissions secured by the defendant’s failure to respond.

Nothing further occurred until April 12, 1978, when the appellee, Tappan Zee Corporation, appeared specially in the action and filed a motion to dismiss alleging a lack of prosecution for one year under Florida Rule of Civil Procedure 1.420(e), which provides:

Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing, at least five days before the hearing on the motion, why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.

The trial court granted the motion over appellant’s written objections that the motion was premature due to the filing of the request for admissions and that counsel’s June 1, 1977, letter, extending the time to answer the request, constituted good cause for allowing the action to remain pending. In his order the trial court cited the case of Shalabey v. Memorial Hospital, 253 So.2d 712 (Fla. 4th DCA 1974) as authority for the dismissal. That case stands for the proposition that a trial court has the inherent authority to dismiss an action which is not diligently prosecuted, regardless of the one year provision of Rule 1.420(e).

It is generally recognized that the purpose of Florida Rule of Civil Procedure 1.420(e) is to expedite litigation and keep the court dockets as current as possible. American Eastern Corporation v. Henry Blanton, Inc., 382 So.2d 863 (Fla. 2d DCA 1980). The rule has been characterized as a penalty to “those who would allow their litigation to become stagnant.” However, keeping in mind the fact that the rule permits the dismissal of an action without any determination of the merits of the cause, I believe application of the rule should be strictly limited to cases falling clearly within its provisions. The rule itself now provides that mere inaction for a period of less than one year cannot constitute grounds for dismissal. I believe this provision bars a trial court from dismissing a case if there has been activity within the year and supersedes such cases as Shalabey, supra, relied on by the trial court here.

The discovery process, when shown on the docket, is sufficient to toll the running of the year. Fleming v. Florida Power Corporation, 254 So.2d 546 (Fla. 2d DCA 1971), cert. denied 262 So.2d 447 (Fla.1972). For example, the mere filing of a deposition by a court reporter has been held to be sufficient record activity to preclude a dismissal. Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla.1972). The act of a trial court in taking a motion under advisement pending disposition thereof has been deemed sufficient activity to bar dismissal despite the lack of any record entries over a one year period. Strader v. Morrill, 360 So.2d 1137 (Fla. 1st DCA 1978).

Florida Rule of Civil Procedure 1.370 provides that requests for admissions must be answered or objected to within 30 days or the matters set out therein shall thereafter be deemed admitted and conclusively established “unless the court on motion permits withdrawal or amendment of the admission.” In this case virtually all of the factual issues could be decided upon the basis of the admissions made by the defendant. The failure of defendant to respond operated as an admission without any action on the part of appellant. This is true regardless of whether the effective date of the admission is construed to be 30 days from the filing of the requests or June 13, as set out in appellant’s letter.

Clearly, had the defendant responded and denied all of the requests, such would have constituted sufficient activity to preclude dismissal. Similarly, because of the affirmative legal effect of the defendant’s failure to respond to the requests for admission, I believe there was activity of record within the year prior to the filing of the motion to dismiss so as to preclude the dismissal of appellant’s action. Since the requests are a matter of record, the legal effect of a failure to respond within 30 days is also a matter of record. Certainly, the detailed admissions secured here constitute greater “activity” in moving a cause to conclusion than the filing of a copy of a deposition. Musselman, supra.

I would reverse the order of dismissal.

      . Sudduth Realty Co. v. Wright, 55 So.2d 189, 190 (Fla.1951).

      . The dismissal is not with prejudice.

      . Unlike a defendant’s failure to answer a complaint which may entitle a plaintiff to a default.


author: SCHEB, Judge.

text:
    BORRELL-BIGBY ELECTRIC COMPANY, INC., Appellant, v. UNITED NATIONS, INC., Appellee.
    No. 79-371.
    District Court of Appeal of Florida, Second District.
    June 27, 1980.
    Benjamin H. Hill, III, Charles P. Schropp and James R. Freeman of Shackleford, Far-rior, Stallings & Evans, Tampa, for appellant.
    Lynn H. Groseclose of Sprott & Grosec-lose, Lakeland, for appellee.
   SCHEB, Judge.

Plaintiff sued defendant company for breach of implied warranty in installing a fire alarm system in a storage warehouse. The jury returned a verdict for plaintiff for the loss sustained when its goods were destroyed by fire. The evidence, however, failed to establish either a breach of warranty or, assuming such a breach, that it was the proximate cause of plaintiff’s loss. We reverse.

Borrell-Bigby Electric Company, Inc., designed and installed a fire alarm system in a storage warehouse pursuant to an oral contract negotiated by Anthony Borrell and Robert Vetzel, owner of the warehouse. The system was designed to telephone an alarm to a local fire station in case of fire. Vetzel had the system installed to qualify the warehouse for the storage of items belonging to transient military personnel. After installation of the system, United Nations, Inc., a local contractor, stored its goods in Vetzel’s warehouse. Subsequently, a fire consumed both the warehouse and United Nations’ goods. Apparently, the alarm system did not telephone an alarm to the local fire station, and firemen did not respond until an individual reported a fire in the vicinity of the warehouse.

United Nations sued Vetzel, Borrell-Big-by and Borrell-Bigby’s insurance carrier, Aetna Insurance Company. It alleged that it was a third-party beneficiary of an implied warranty of merchantability running from Borrell-Bigby to Vetzel, and that Bor-rell-Bigby had breached the warranty in that it did not design the system to include an independent power source or a supervisory circuit to warn of a power loss to the system.

Borrell-Bigby made four contentions in defense. First, it asserted that the fire was an independent, intervening cause of United Nations’ loss. Second, it maintained that United Nations was only an incidental beneficiary of any implied warranty. Third, it contended that, even assuming United Nations was an intended beneficiary of a warranty running to Vetzel, it had not breached the warranty because the warranty did not extend to the matters alleged. Finally, it argued that any alleged breach was not the proximate cause of United Nations’ loss. Both at the close of United Nations’ case and again at the close of its case, Borrell-Bigby moved for a directed verdict on these grounds. The trial court denied the motions and the jury returned a verdict for United Nations against Borrell-Bigby and Aetna. Borrell-Bigby now appeals the denials of its motions.

United Nations attempts to sustain the judgment on the same grounds it asserted at trial. It contends that it was an intended beneficiary of a warranty of merchantability running to Vetzel and that Borrell-Bigby breached the warranty. It alleges that the system was not reasonably fit for the purpose for which such systems are used, that is, to transmit an alarm in case of fire. It contends that the system did not do so because it did not include an external or emergency power source. Borrell-Bigby breached the warranty, it argues, by failing to include this type of power source as well as a supervisory circuit to warn of a power loss.

Our views on the issues of breach and proximate cause preclude the need to determine whether the fire was an independent, intervening cause, or whether United Nations was an intended beneficiary of the contract.

With regard to the alleged breach, Robert Vetzel testified that Anthony Bor-rell told him during contract negotiations that more elaborate and expensive fire alarm systems were available. Presumably these would have provided the sophisticated safety features United Nations claims were improperly omitted from the system installed. Nevertheless, Vetzel did not seek Bor-rell-Bigby’s advice on a general fire alarm system. Moreover, Vetzel acknowledged that the system he wanted was one which would satisfy minimum military requirements and, after installation, military authorities inspected and approved the system. Further, while there were more sophisticated protection devices available, the system did contain two indicator lights on its warehouse control panel designed to warn of a power loss or malfunction such as a loose connection. As stated by this court in Wisner v. Goodyear Tire & Rubber Co., 167 So.2d 254, 255 (Fla.2d D.C.A. 1964), “[a]n implied warranty of fitness does not extend beyond the obligation to supply an article reasonably fit for the purpose intended, and does not impose a duty to furnish the best article of its kind or an article equal to any other similar or competing article.” Accord, Fletcher Co. v. Melroe Manufacturing Co., 238 So.2d 142 (Fla.1st D.C.A. 1970).

There was also expert testimony that the lack of evidence of electrical distress in the system indicated that it was not energized at the time of the fire. The expert testified that his examination of the system following the fire indicated nothing that would have prevented the system from transmitting a signal had it been energized. Consequently, Borrell-Bigby did not breach any implied warranty by failing to include the two safety devices.

In addition, Borrell-Bigby contends that United Nations failed to show proximate cause between its loss and the alleged breach of warranty. A plaintiff may establish proximate cause by circumstantial evidence. Dehon v. Heidt, 38 So.2d 39 (Fla.1948); Majeske v. Palm Beach Kennel Club, 117 So.2d 531 (Fla.2d D.C.A. 1959). But in so doing, it must show that the alleged breach was the most probable cause of its losses. See Voelker v. Combined Insurance Co. of America, 73 So.2d 403 (Fla.1954); Food Fair Stores of Florida, Inc. v. Moroni, 113 So.2d 275 (Fla.2d D.C.A. 1958). Since United Nations relied on circumstantial evidence to prove proximate cause, it had to establish that the allegedly faulty design of the fire alarm system was the most probable cause of its losses. As noted above, an expert witness testified that the system was not energized at the time of the fire. The same expert also testified that he found evidence that the fire had burned hotter in the northeast corner of the warehouse which indicated that accelerants were present. This raised an inference that an arsonist had sabotaged the system. United Nations did not rebut this testimony. Consequently, the evidence did not establish that the alleged breach of warranty of the system was the most probable cause of United Nations’ loss. Therefore, United Nations failed to establish proximate cause.

Since no view of the evidence could sustain a judgment for United Nations, the trial court erred in failing to direct a verdict for Borrell-Bigby.

REVERSED.

GRIMES, C. J., and DANAHY, J., concur.

      . Prior to the time the fire station should have received an alarm from the warehouse, the firemen responded to an alarm which took them in the opposite direction of the warehouse. The sixteen-year-old son of a fireman stayed in the station to answer the radio and phones, and made notes concerning calls received during the absence of the firemen. Subsequently, one of the firemen typed information contained in the notes into the station’s log book. The log book did not indicate a call from the warehouse. At trial Borrell-Bigby objected to United Nations’ introduction of the fire log because United Nations did not first call the maker of the notes or introduce them into evidence, and the fireman who made the log did not have personal knowledge as to the information recorded.

      . In Nicholas v. Miami Burglar Alarm Co., 266 So.2d 64, 65-66 (Fla.3d D.C.A. 1972), the Third District accepted the general rule that “a company which negligently installs or maintains a burglar alarm system pursuant to a contractual arrangement is not liable to a customer for an ensuing burglary . ..” The Florida Supreme Court, however, found the principle not applicable and reversed. Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976). We perceive no reason to distinguish between a burglar alarm system and a fire alarm system with regard to this principle. Nevertheless, in view of our decision, we do not reach the merits of the principle. For a case holding that burglary is foreseeable during the malfunction, see Liggon v. Chas. P. Davis Hardware, Inc., 492 S.W.2d 374 (Tex.Civ.App. 1973).

      . The testimony, however, does not indicate what safety features the more elaborate and expensive systems would have contained.

      . Electrical distress occurs when energized electrical wires touch and arc. The expert testified that the result will be “something like a weld bead or a copper splatter.” Apparently, electrical distress could happen when a fire burns the insulation from the wires and causes them to come into contact.

      .The trial court permitted United Nations, over Borrell-Bigby’s objection, to introduce portions of the National Fire Protection Association Code. These portions stated that fire alarm systems should have external or emergency power sources and supervisory circuits. Borrell-Bigby argues that admission of the Code was error. In view of our decision, we do not address this issue. Even if the Code was properly admitted, however, it did not prove that there was only one type of acceptable system.


author: COBB, Judge.

text:
    LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 517, Appellant, v. The GREATER ORLANDO AVIATION AUTHORITY and the City of Orlando, Appellees.
    No. 79-1237/T4-584.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.
    Joseph H. Williams of Troutman, Parrish & Kanar, P.A., Winter Park, for appellant.
    John G. DeLancett and Frederick J. Ward of Giles, Hedrick & Robinson, Orlando, for Greater Orlando Aviation Authority.
    Norman F. Burke of Van Den Berg, Gay & Burke, P.A., Orlando, for appellee City of Orlando.
   COBB, Judge.

The Laborers’ International Union of North America, Local 517 (Laborers) appeals from the circuit court’s dismissal of the Laborers’ complaint for declaratory relief against appellees, The Greater Orlando Aviation Authority (GOAA) and the City of Orlando, for lack of jurisdiction.

In May of 1977 the Laborers were certified by the Florida Public Employees Relations Commission (PERC) as the exclusive bargaining agent for certain employees of the GOAA. During negotiations, the GOAA refused to bargain with the Laborers based on section 10 of chapter 75-464, Laws of Florida, the act creating the GOAA and defining its authority. The GOAA’s position was that this section deprived it of authority to bargain.

The Laborers’ complaint for declaratory relief alleged the foregoing facts and sought a judgment declaring the authority of the GOAA to bargain collectively, the right of the GOAA to refuse to bargain collectively, and the immunity of the GOAA or its agents from prosecution for executing a contract with the Laborers independent of the prescriptions of chapter 75-464. The Laborers alleged that the Authority was not barred from bargaining, either because the section was unconstitutional in light of article I, section 6, Florida Constitution, or that the designation of the Laborers by PERC as the exclusive bargaining agent constituted “unusual circumstances” under section 10 of chapter 75-464. The City of Orlando was added as a defendant on the basis that the City had taken the same position with regard to the application of chapter 75 — 464 that the GOAA had taken.

The trial court read the complaint to be seeking a declaration that the GOAA had committed an unfair labor practice by refusing or failing to bargain collectively. If this were all the plaintiff were seeking, then the matter would have been within the scope of PERC’s regulatory control. The trial court would have properly exercised its discretion by declining jurisdiction because no justiciable issue was presented, and because the plaintiff had made no effort to exhaust his administrative remedies. See Morrison v. Plotkin, 77 So.2d 254 (Fla.1955). It is a matter of justiciability and not jurisdiction. As the Florida Supreme Court has said:

The determination of whether the circumstances of a particular controversy warrant judicial intervention, then, is ultimately one of policy rather than power

Gulf Pines Memorial Park, Inc. v. Oak Lawn Memorial Park, Inc., 361 So.2d 695, 699 (Fla.1978).

However, the complaint sub judice is seeking a declaration concerning the authority of the GOAA to bargain. An issue of authority to bargain and authority to provide compensation to GOAA employees in excess of compensation provided to City of Orlando employees is separate and distinct from an issue of whether the GOAA has indeed committed an unfair labor practice. It is appropriate for the circuit court, and not an administrative agency, to consider whether chapter 75-464 deprives the GOAA of the authority to collectively bargain, and whether chapter 75-464 places an unconstitutional upper limit on GOAA employees’ compensation, thereby abridging the public employees’ right to bargain collectively. Challenges to the constitutionality of acts of the Legislature are for the courts alone to determine. Adams Packing Ass’n, Inc., 352 So.2d 569, 571 (Fla. 2d DCA 1977). The situation here is similar to that in the Gulf Pines Memorial Park case. The Laborers are not attempting to avoid administrative remedies, but are merely seeking a judicial declaration of rights that could not be obtained administratively. See also Pinellas County Police Benevolent Ass’n v. Hillsborough County Aviation Authority, 347 So.2d 801 (Fla. 2d DCA 1979). Cases where parties sought a judicial declaration of whether a particular activity was an unfair labor practice are distinguishable. The circuit court in this case can limit its declaratory judgment to determining the authority of the GOAA to bargain, and whether chapter 75-464 places an unconstitutional upper limit on employee compensation, without having to invade the province of PERC. The Laborers should pursue their administrative remedy concerning whether there has been an unfair labor practice.

As to the issue of the trial court’s dismissal of the City of Orlando, appellee suggests the trial court may be upheld on the ground that the Laborers’ complaint failed to sufficiently allege the City’s interest. The dismissal was not with prejudice. An amended pleading could readily bring to the trial court’s attention the following language from the GOAA enabling act which should provide the requisite interest for the purposes of joinder as a party in an action for declaratory judgment:

Section 3. Greater Orlando Aviation Authority. There is hereby created a board or commission to be known as the ‘Greater Orlando Aviation Authority,’ and by that name the authority may sue and be sued, plead and be impleaded, contract and be contracted with, and have an official seal. The authority is hereby constituted an agency of the city, and exercise by the authority of the powers conferred by this act shall be deemed and held to be an essential municipal function of the city, (emphasis added). Ch. 75-464, § 6, Laws of Florida (which amended Ch. 57-1658, § 3, as amended by Ch. 57-1834, Laws of Florida).

The Laborers should be given an opportunity to amend their complaint to sufficiently allege the interests of the City of Orlando in this litigation.

Accordingly, the order granting the GOAA’s motion to dismiss the complaint for lack of jurisdiction is reversed, and the cause remanded.

REVERSED and REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . The critical language:
      The authority may also employ such other officers, agents and employees under such terms and conditions as it shall consider necessary and appropriate to effectuate its purposes under this act; provided, that the authority shall, except in unusual circumstances where clear justification exists, compensate its officers, agents, and employees at rates not in excess of those paid by the City of Orlando to its employees engaged in similar duties. Ch. 75—464, § 10, Laws of Florida (which amended Ch. 57-1658, § 8(g), as amended by Ch. 67-1834, Laws of Florida).

      . Compare Local Union No. 2135 Int'l. Ass’n. of Firefighters v. City of Ocala, 371 So.2d 583 (Fla. 1st DCA 1979); Seitz v. Duval County School Board, 346 So.2d 644 (Fla. 1st DCA 1977); Public Employees Relations Commission v. Fraternal Order of Police, Local Lodge

        No. 38, 327 So.2d 43 (Fla. 2d DCA 1976). In Maxwell v. School Board of Broward County, 330 So.2d 177 (Fla. 4th DCA 1976), the trial court’s dismissal was reversed where the action concerned cancellation of an incentives award program which was held not to be arguably embraced in Part II, Chapter 447, Public Employees Relations Act.

      . The circuit court may wish to harmonize Section 447.309, and especially Section 447.309(3), Florida Statutes (1977), with Chapter 75-464. Compare Pinellas County Police Benevolent Ass’n v. Hillsborough County Aviation Authority, 347 So.2d 801 (Fla. 2d DCA 1979).

      . Section 86.091, Florida Statutes (1977), provides in part:

        Parties. — When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration, (emphasis added).


author: ORFINGER, Judge.

text:
    Maone B. GUERARD et al., Appellants, v. Waldron ROPER, et ux., Appellees.
    No. 79-1322/T2-44.
    District Court of Appeal of Florida, Fifth District.
    June 27, 1980.

      Frank McClung, Brooksville, for appellants.
    Joseph E. Johnston, Jr., Brooksville, for appellees.
   ORFINGER, Judge.

We review a final judgment awarding to appellee a prescriptive easement over a 25-foot strip of appellant’s land. Appellant claims error in the award. We agree and reverse.

Appellant and appellee own adjoining parcels of land. The disputed 25-foot strip is owned by appellant and she pays taxes on it. It is used by appellant for ingress and egress to her property from the paved road. Appellant operates a dairy business on her property. Appellee also uses the disputed strip for ingress and egress to his property where he now lives and operates a citrus grove, although he has another, though less convenient, access. Early in 1978, appellant complained of the way appellee was using the roadway so appellee modified his use. Still not satisfied, and contending that this still interfered with her use of the roadway, appellant closed off appellee’s access to the road. Appellee thereupon requested the County Commission to declare it a public road.

Ultimately unsuccessful in this quest, ap-pellee then filed the instant action, contending alternatively that the road was public, that he was entitled to a prescriptive easement or a statutory way of necessity. The trial court found that the roadway was not public, and denied appellee’s request for a statutory way of necessity. These findings are not questioned on this appeal. Without stating any findings of fact, the trial court held that appellee was entitled to a prescriptive easement over the described strip of land, and enjoined appellant from further interference with appellee’s use thereof. Appellant takes exception to this portion of the final judgment.

Neither appellant nor appellee have owned their respective parcels for the prescriptive period, but based on the evidence, it is clear that the roadway in question has been on appellant’s property for more than twenty years. It is also clear that appellee and his predecessors in title have used the roadway in common with appellant and her predecessors in title during that period. If that use alone established the prescriptive right, then the trial court would have correctly determined the issue, but in order to establish a prescriptive right, more than use for the prescribed period is required.

In the leading case of Downing v. Bird, 100 So.2d 57 (Fla.1958), the Supreme Court made it clear that mere continuous and uninterrupted use of land alone, even for the prescribed period, would not establish a prescriptive right, without adversity, and the Court receded from Zetrouer v. Zetrouer, 89 Fla. 253, 103 So. 625 (1925) to the extent that decision might have indicated otherwise. In Downing, the Supreme Court said:

In either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition, the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. In both rights the use or possession must be inconsistent with the owner’s use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner has a right to a legal action to stop it, such as an action for trespass or ejectment, (emphasis added)
Further, in either prescription or adverse possession, the use or possession is presumed to be in subordination to the title of the true owner, and with his permission and the burden is on the claimant to prove that the use or possession is adverse. This essential element as well as all others must be proved by clear and positive proof, and cannot be established by loose, uncertain testimony which necessitates resort to mere conjecture. Horton v. Smith-Richardson Inv. Co., 1921, 81 Fla. 255, 87 So. 905; J. C. Vereen & Sons v. Houser, 1936, 123 Fla. 641, 167 So. 45.
* * * * * *
Acquisition of rights by one in the lands of another, based on possession or use, is not favored in the law and the acquisition of such rights will be restricted. Irion v. Nelson, 1952, 207 Okl. 243, 249 P.2d 107; 28 C.J.S. Easements § 10, p. 645. Any doubts as to the creation of the right must be resolved in favor of the owner. While there are slight differences in the essentials of the two actions, they are not great. In acquiring title by adverse possession, there must of course be “possession”. In acquiring a prescriptive right this element is use of the privilege, without actual possession. Further, to acquire title the possession must be exclusive, while with a prescriptive right the use may be in common with the owner, or the public.

What is missing from the proofs in this case is the element of adversity. There is nothing in the evidence to show that appellee’s use of the roadway was inconsistent with appellant’s use thereof, at least until early 1978 when appellant complained. If the use is not exclusive and is not inconsistent with the rights of the owner of the land to its use and enjoyment, the presumption is that such use is permissive, rather than adverse. J. C. Vereen & Sons, Inc. v. Houser, 1936, 123 Fla. 641, 167 So. 45.

“One circumstance always considered is whether the use is against the interest of the party suffering it, or injurious to him. There must be an invasion of the party’s right, for, unless one loses something, the other gains nothing.” Id. 123 Fla. 641, 167 So. at 47.

These principles were reiterated in City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla.1974), where the Supreme Court held that the public had not acquired a proscriptive easement in the beachfront property of the owner, notwithstanding continuous and long-term open use thereof by the public, because

“. . . neither the trial court, nor the District Court, reached the other requirement for prescription to be properly effective — adverse possession inconsistent with the owner’s use and enjoyment of the land.” Id. at 77.

The court there found that the public use was not injurious to the owner and there was no invasion of the owner’s right to the property. It thus held as a matter of law that no prescriptive easement had been established.

There is nothing in this record to reflect the required adversity or hostility. The record is clear that neither appellee or his predecessors nor other members of the public ever asked for or received permission to use the roadway. The use in common with the owner is presumed to be in subordination of the owner’s title and with her permission, and the burden is on the claimant to prove that the use is adverse. Downing v. Bird, supra. We recognize that as used in the cases the word “hostility” is a word of art and does not mean belligerent or bellicose behavior. Still, there is nothing to show that the use made by the appellee was inconsistent with the rights of the owner to her use and enjoyment of the land, which supports rather than overcomes the presumption that any such use is permissive.

Other jurisdictions which have considered the question before us have concluded that when a right of way is opened or maintained by the owner for his own benefit, and the claimant’s use of it appears to have been in common with him, the presumption arises that the use is in subordination and not adverse to the true title. As pointed out by the Supreme Court of Missouri in Anthony v. Kennard Building Company, 188 Mo. 705, 87 S.W. 921 (1905):

But if the owner of the land opens a road across it for his own use and uses it and keeps it open for his own use, the fact that he sees his neighbor also making use of it, under circumstances that in no way injures the road or interferes with his own use of it, does not justify the inference that he is yielding to his neighbor’s claim of right or that his neighbor is asserting any right; it signifies only that he is permitting his neighbor to use the road . “in a neighborly way.” (emphasis added.)

See also: Howard v. Wright, 38 Nev. 25, 143 P. 1184 (1914).

There is no evidence of adversity prior to 1978, a time frame far too recent to create prescriptive rights. The judgment for ap-pellee is, therefore,

REVERSED.

COBB, J., and WATSON, RICHARD 0., Associate Judge, concur.


author: HENDRY, Judge.

text:
    Frank CUNNINGHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1628.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.

      Bernard S. Yedlin, Miami, for appellant.
    Jim Smith, Atty. Gen., and Susan Minor, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

The appellant was convicted of manslaughter, in a trial by jury. At the close of all the evidence, motion was made for judgment of acquittal. Appeal is made to this court from the denial of that motion.

“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). The purpose of a motion for judgment of acquittal is to challenge the legal sufficiency of the evidence, and where the state has brought forth competent evidence to support its claim that each element of the crime has been performed, a judgment of acquittal will not lie. Downer v. State, 375 So.2d 840, 845 (Fla.1979). The question is: “[C]ould the jury as reasonable men find the defendant guilty beyond and to the exclusion of a reasonable doubt? If his answer is affirmative, the trial judge must deny the motion; if it is negative, he must grant the motion.” Weinshenker v. State, 223 So.2d 561, 563 (Fla. 3d DCA 1969). We find that the evidence adduced at trial was legally sufficient to support the jury’s verdict; thus, we affirm.

Manslaughter is “[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification . . and in cases in which such killing shall not be excusable homicide or murder . . . .” § 782.07, Fla.Stat. (1980). Thus the two affirmative elements of the offense are (1) the killing; and (2) a causative link between the death of the victim and the act, procurement, or culpable negligence of another. It is the latter ingredient of the crime that appellant claims is missing in the facts sub judice.

On the day the victim met his death, appellant had joined a neighborhood convocation devoted to dice and hard liquor. After some hours, some money and some liquor had passed, appellant sustained what he rightly regarded as an insult. He left on foot, shortly to return in his automobile, having retrieved from his home a shotgun, with which he intended to disperse the assemblage. Still sitting at the wheel, appellant directed a blast into the air. The thunderous report, contained as it was in the metal cannister of the car’s interior, further loosened appellant’s already tenuous hold on the situation.

The victim had joined the congeries of gamesters in appellant’s absence; however, evidently, he had independently reached the same mood, and the same state, as they. In short, he was not to be trifled with.

To the victim, the gun was an irritant— nothing more. Stolidly indifferent to the danger, he decided to take the weapon from appellant. Approaching appellant’s automobile, the victim grasped the barrel of the shotgun, which protruded through the open window, and sought to extract it. Appellant, though dazed, remained firmly attached to the other end. The comments with which the victim accompanied his efforts were completely inaudible to appellant, whose ears still rung with the reverberation of the earlier blast; however, he imagined them to be threats, and his grip tightened. The victim tugged one last time; the gun fired; the victim died.

In logic, all the antecedents which coalesce in the occurrence of an event are its causes; the concern of the law is more immediate. At civil law, fault is the question, and the notion of “proximate cause” is designed to shade out all but those antecedents most immediately responsible for an event.

This court has twice employed the doctrine of proximate cause in cases of criminal homicide. In Karl v. State, 144 So.2d 869 (Fla. 3d DCA 1962), the appellant’s conviction for the manslaughter of his young step-son was affirmed, on the basis that a reasonable jury could have found that the beating the step-father administered “was the proximate cause of the death”.

In J. A. G. v. State, 374 So.2d 606 (Fla. 3d DCA 1979), we reversed the vehicular homicide conviction of a participant in a fatal drag race, on the ground that the intervening act of the passenger-decedent, which was the cause-in-fact of the fatal accident, was sufficiently unrelated to the appellant’s wrongful act as to render the latter a remote cause: The legal causation necessary to convict the appellant was missing; the proximate cause of death was the superseding act of the passenger.

Appellant sub judice claims that the act of the victim was an intervening cause in his death. We agree; the victim’s initiation of the struggle over possession of the shotgun was the sine qua non of his demise. However, the fact of the victim’s fatal role does not necessarily negate appellant’s responsibility for the homicide. Rather, the dispositive question is whether the decedent’s act was the superseding cause, so devoid of relation to the culpable negligence of appellant that appellant should not be assessed with the blame for what ultimately transpired.

We find that the act of the decedent was not a superseding cause as a matter of law. It is true that the decedent had not yet arrived when appellant left to get his gun; nevertheless, the death, occasioned in a drunken struggle over a lethal weapon appellant recklessly brought, in anger, to a drunken and angry scene, was more than mere happenstance in a situation of appellant’s making. In such an instance, a jury might properly impute guilt. Therefore, we confirm the conviction obtained in the circuit court.

We must reverse with regard to the trial court’s imposition of a sentence of 10 years’ probation conditioned upon confinement in the state penitentiary for three years. We have recently noted that, “Probation is a matter of grace and its underlying concept is rehabilitation.” Freeman v. State, 382 So.2d 1307 (Fla. 3d DCA 1980), citing Russell v. State, 342 So.2d 96 (Fla. 3d DCA 1977). Consistent with that premise, we have stated that rehabilitation, rather than punishment, is the proper criterion for confinement under a conditional sentence. Freeman, supra, Geter v. Wainwright, 380 So.2d 1203 (Fla. 3d DCA 1980); Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979). A “long” underlying prison sentence, i. e., one not reasonably related to the rehabilitative purpose of probation, Olcott v. State, 378 So.2d 303 (Fla. 2d DCA 1979); Shead, supra, 367 So.2d at 267, 68, is fundamental error, Hamm v. State, 380 So.2d 1101 (Fla. 2d DCA 1980), and thus is amenable to appellate remedy sua sponte.

We remand for resentencing by the trial court of an appropriate lesser period of rehabilitative incarceration.

Affirmed in part, reversed in part, and remanded.

      . Fla.R.Crim.P. 3.380(a).

      . § 948.01 (4), Fla.Stat. (1979).


text:
    David A. McKIBBIN, Esquire, as Personal Representative of the Estate of Wilfred H. Higbie, Deceased, and Liberty Mutual Insurance Company, a Foreign Corporation, Petitioners, v. Michael E. FUJAREK and Marilyn Fujarek, Individually and as husband and wife, Respondents.
    No. 79-2375.
    District Court of Appeal of Florida, Fourth District.
    July 2, 1980.
    Mark A. Dresnick of Leesfield & Blackburn, Miami, for petitioners.
    James B. Denman of Bunnell, Graham & Denman, P. A., Fort Lauderdale, for respondents.
   PER CURIAM.

In our discussion on this petition for writ of common law certiorari the parties will be referred to as they appeared in the trial court. The defendants seek our writ of certiorari to quash an order of the trial court which allowed the plaintiffs to file an amended notice of voluntary dismissal more than one year after the entry of the original notice of dismissal. We find that the court departed from the essential requirements of law and quash the order.

The plaintiffs commenced two suits on the same cause of action against the defendants for personal injuries, one in Bro-ward County Circuit Court and one in Dade County Circuit Court. Pursuant to an alleged agreement with opposing counsel the plaintiffs filed a notice of voluntary dismissal in the Broward County action; however, they contend the notice inadvertently contained the words with prejudice. Fifteen months later the defendants filed motions to dismiss, for summary judgment, for directed verdict, and for leave to add the affirmative defense of res judicata, in the Dade County action. Thereupon, pursuant to Fla.R.Civ.P. 1.540(a), the plaintiffs sought, and were granted, leave to amend their notice of dismissal in the Broward County action to exclude the words “with prejudice”, thereby avoiding the res judica-ta effect of the dismissal in the Broward County action. The issue is whether Rule 1.540(a) can be employed to correct substantive errors of counsel. We hold that it cannot.

We initially reject defendants’ (petitioners’) argument that the trial court exceeded its jurisdiction because the original dismissal divested the court of jurisdiction. Although there is no doubt that a voluntary dismissal under Rule 1.420(a), Fla.R.Civ.P., divests the court of jurisdiction to entertain a later request for reinstatement of a cause of action, Sun First National Bank of Delray Beach v. Green Crane & Concrete Services, 371 So.2d 492 (Fla. 4th DCA 1979); Randall-Eastern Ambulance Services v. Vasta, 360 So.2d 68 (Fla.1978); Rich Motors, Inc. v. Loyd Cole Produce Express, Inc., 244 So.2d 526 (Fla. 4th DCA 1971), Rule 1.540(a) allows the court to correct clerical mistakes, and errors from oversight or omission, in any part of the record at any time. The Rule provides:

Rule 1.540. Relief from Judgment, Decrees or Orders
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal such mistakes may be so corrected before the record on appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

Thus, we are not concerned with the court’s jurisdiction, but rather the extent to which this Rule may be applied.

The Rule limits relief to those seeking to correct errors or misprisions that result from an accidental slip or omission. When a trial court’s order under the Rule goes beyond the correction of a technical error and actually modifies the substance of a record the court has acted in excess of the power conferred upon it by the rule. Town of Hialeah Gardens v. Hendry, 376 So.2d 1162 (Fla.1979); De Baun v. Michael, 333 So.2d 106 (Fla. 2nd DCA 1976). By allowing the amended notice of voluntary dismissal to eliminate the words “with prejudice” the court obviously changed the substantive effect of the dismissal from one with finality to one without. We find this to be a departure from the essential requirements of the law. Furthermore, the record does not indicate that the original notice of dismissal was the product of a technical, clerical error or omission. If anything, it would seem to have been the product of “mistake, inadvertence, or excusable neglect” which may be remedied by employment of Fla.R.Civ.P. 1.540(b).

Accordingly, certiorari is granted and the trial court’s order allowing an amended notice of dismissal is quashed.

MOORE, GLICKSTEIN and HURLEY, JJ., concur.


text:
    MOBIL OIL CORPORATION, Appellant, v. W. A. THOSS, etc., et al., Appellees.
    No. 79-306/T4-397.
    District Court of Appeal of Florida, Fifth District.
    July 2, 1980.
    John D. Mahaffey, Jr., P. A., Ofelia E. Galindo, Orlando, and Irving Nathanson, Cocoa, for appellant.
    Patrick A. Raley, and Jed Berman of Felder & Berman, Winter Park, for appel-lees.
   PER CURIAM.

The issue raised by this appeal is whether W. A. Thoss, as president of a dissolved and subsequently reinstated corporation, can be held personally liable for the actions of the ongoing business during the interval between dissolution and reinstatement.

W. A. Thoss, Inc., was incorporated in the State of Florida in mid-1971 and was involuntarily dissolved by the Secretary of State in mid-1973 for nonpayment of taxes. It was reinstated on December 1, 1977.

W. A. Thoss has been the president of W. A. Thoss, Inc. from its incorporation to the present. During the time W. A. Thoss, Inc. was dissolved, W. A. Thoss continued to operate the business as though it still existed. Between February 1, 1977 and March 22, 1977, W. A. Thoss purchased $63,000.00 of fuel oil from Mobil Oil Corporation in the name of W. A. Thoss, Inc. The fuel oil was not paid for and Mobil Oil filed suit to collect, payment. That action is what prompted the reinstatement of W. A. Thoss, Inc.

In 1975, Florida updated and consolidated its corporate law by enacting Florida’s General Corporation Act. Part of that act provides that all persons who assume to act as a corporation without authority to do so shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof. § 607.397, Pla.Stat. (1979). Another part of that act provides that the reinstatement of an involuntarily dissolved corporation shall have no effect upon any personal liability of the directors, officers, or agents of the corporation on account of actions taken during the period between dissolution and reinstatement. § 607.271(5), Fla.Stat. (1979). We think that the intent of these statutes is to impose personal liability upon those directors, officers, or agents who have control of the operation of the business and management over the actions in question. However, we do not think the Legislature intended to impose liability on every director or agent of a dissolved corporation who does not act or who has no knowledge of the dissolution. We find it significant that section 607.397 is worded, “[a]ll persons who assume to act . .” (Emphasis added.) It does not impose liability on all persons who act, only those who assume to act. We conclude that the use of this language reflects an intent to limit the statute’s application to those persons who knew or, because of their position, should have known of the dissolution.

We are aware that one of our sister courts has held that directors, officers, and agents of a dissolved corporation are not personally liable in the absence of a showing that the creditor relied upon the individual assets of the persons acting as a corporation. Futch v. Southern Stores, Inc., 380 So.2d 444 (Fla. 1st DCA 1979). We disagree with this interpretation because we find no support for it in the language of the statute. However, the same result would have been achieved under our interpretation because in Futch the person whose personal liability was asserted was an inactive officer and director and the contract in question was entered into by another officer.

That portion of the final judgment denying recovery against W. A. Thoss, individually, is REVERSED.

ORFINGER, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Although rehearing was then pending, Futch was followed in Panax of Florida, Inc. v. Publishers Service Corp., 472 F.Supp. 444 (S.D.Fla. 1979).

      . We have also considered Spector v. Hart, 139 So.2d 923 (Fla. 2d DCA 1962), but note that it was rendered prior to the 1975 statutory changes in Florida’s corporate law, and therefore did not construe those provisions we find determinative of this case.


text:
    Clifford L. CURRY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1486.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Bennett H. Brummer, Public Defender, and Mark King Leban, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. State v. Stevens, 354 So.2d 1244, 1246-1247 (Fla. 4th DCA 1978).


text:
    TRUSTEES OF CAMERON-BROWN INVESTMENT GROUP, Appellants, v. Jeanette E. TAVORMINA and Justin P. Havee, as Trustees for D. Mitchell Investments, Inc., a Florida Corporation and Harriet P. Mitchell, Appellees.
    No. 79-895.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Bailey & Dawes and Jesse C. Jones, Miami, for appellants.
    Greenfield & DuVal and Harvie S. Du-Val, Coral Gables, for appellees.

      Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   HENDRY, Judge.

Beginning in 1972, appellees obtained a series of construction loans from appellants and others, ultimately totalling three and one-quarter million dollars. The loans were evidenced by promissory notes, and secured by various mortgage instruments. In 1976, appellants were forced to foreclose. In that foreclosure action, the loans were found to be usurious, and appellants’ award was limited by the statutory penalty to somewhat over half the amount of the principal indebtedness. The trial court found, however, that appellants were contractually entitled to attorneys’ fees, and awarded same, “exclusive of the hours expended on the usury issue. . . . ”

Appellants contend that the fee award should reflect the undivided whole of their attorneys’ efforts; however, we agree with the trial court that appellants are not entitled to reimbursement for their attempt to enforce usurious loan provisions.

We refer to Wilson v. Conner, 106 Fla. 6, 142 So. 606 (Fla.1932), wherein the Supreme Court said, on similar facts:

The allowance of an attorney’s fee should . . . have eliminated therefrom any measure of compensation for services rendered in this case in support of the attempted collection of usury on behalf of the creditor; that is, no indemnity for attorney’s fees should be allowed to complainant for any legal services rendered in connection with efforts to enforce the usury, as distinguished from foreclosing the mortgage for the legally enforeible amount of the debt.

142 So. at 609; cited in Feemster v. Schurkman, 291 So.2d 622, 630 (Fla. 3d DCA 1974).

We affirm that portion of the decision excluding from appellants’ fee award that amount representing effort expended on the usury issue.

The second prong of appellants’ challenge to the order of the trial court presents greater difficulty.

Appellants’ award below was computed with reference to the hourly fee contract entered into between the appellants and their attorneys. It is urged, however, that appellants contracted with appellees for “all costs of collection, including a reasonable attorney’s fee” (as evidenced by the appearance of that language in the promissory notes issued by appellees), and that appel-lees are thus obligated to pay a “reasonable” fee, rather than the amount appellants actually owe. Since appellants’ actual fee expense is less than $25,000, and testimony adduced at trial suggests that a “reasonable” fee might exceed $100,000, the issue is of some moment to both parties.

The trial court limited appellants’ fee award to their actual expense, feeling constrained to do so by 1930’s Florida Supreme Court caselaw. Appellants argue that those cases, although not explicitly overruled or disavowed, are moribund; they point to a series of more recent cases in which awards by the court were made on the basis of “reasonability”, and in contravention of the terms of fee agreements between parties and their counsel. Moreover, appellants argue, allowing appellees to profit by appellants’ advantageous fee arrangement violates the collateral source rule.

This last proposition may be briefly dispatched. As appellees note in response, the collateral source rule is an ingredient of the law of torts. It was developed to prevent a tortfeasor’s avoidance of the civil punishment meted out for his wrongdoing. Conversely, it is basic to the law of contracts that the measure of damages is the plaintiff’s injury, rather than the defendant’s culpability. Although sharp distinctions blend where the breach of a contract has some personal or emotional effect on another party, the laborious formulation of a multimillion dollar loan agreement between businesspeople is hardly such an instance. We are not aware of an instance in which the collateral source rule has been applied to penalize a breaching party, and we are not disposed to so apply it.

We now turn to appellant’s contention that modern caselaw demonstrates their right to “reasonable” fees irrespective of their arrangement with counsel. They argue that this more recent treatment supersedes the older cases relied on by the trial court, which are adverse to their position. We affirm, nonetheless, the decision of the court below that the earlier authority has not been eviscerated by more recent doctrine, and that it indeed controls in favor of appellees.

It is necessary to briefly review the case-law relied upon by the circuit court.

In 1935, the Florida Supreme Court considered a “reasonable fee” provision in a two-thousand dollar note from Daisy Mallard to Charles Ewing:

This subject has been discussed by this court sufficiently to clearly establish the rule by which the trial courts of this state should be guided in such matters. The rule, to again restate it, is: “Fees allowed mortgagee for his solicitor’s services in foreclosure proceedings being intended as indemnity for expenditures necessarily made or incurred to protect his interest, he can recover from mortgagor only usual and customary fees which he has paid or obligated himself to pay solicitor.” (Italics supplied.) Brett v. First [National] Bank [of Marianna], 97 Fla. 284, 120 So. 554, 555 [(Fla.1929)].

Mallard v. Ewing, 121 Fla. 654, 164 So. 674, 678-79 (Fla.1935).

That reference is to the court’s 1929 decision, wherein they refused to award attorney’s fees payable under a deed stipulation, because the mortgagee neglected to supply evidence of his obligation to pay counsel.

In foreclosure proceedings in our state, the fee allowed the mortgagee for the services of his solicitor in the proceedings is intended as an indemnity to the mortgagee for expenditures necessarily made or incurred to protect his interest. United States Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567 [, 572 (Fla.1920)].

Brett, supra, 120 So. 554.

In Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 775, 124 So. 41 (Fla.1929), the holder of a delinquent note sought a “reasonable attorney’s fee”, as provided for in the note, without a showing of fee obligation to his attorney.

It appears by the record that suit has been brought on the note after maturity and that plaintiff sues by an attorney. There is evidence that $1,000 is a reasonable fee for the services of the attorney. But that is not enough. Non constat but that plaintiff’s attorney has agreed to accept as compensation for his services a sum less than that provided for in the note, in which event no more than the amount agreed upon between the plaintiff and his attorney could be recovered from the maker of the note, as the debt- or’s contract to pay the fee is one of indemnity.

Blount, supra, 124 So. at 42.

The foregoing authority clearly supports the judgment of the trial court that the proper measure of appellants’ award is their fee expense or indebtedness; nevertheless, appellants contend that courts will not be bound, in assessing reasonable attorneys’ fees pursuant to contract, by the fee agreement between a successful party and his attorney.

Appellants are correct: When a court determines a “reasonable fee”, it does so on the basis of quantum meruit; the fee arrangement between a successful party and his counsel is not dispositive of which fee best approximates that standard. Were the rule otherwise, courts would find themselves as the instruments of enforcement, as against third parties, of excessive fee contracts. The power of the trial court is attended by the responsibility of its judicious exercise, and it will not exercise its authority blindly.

The juxtaposition of the two standards— fee award as indemnity, and “reasonable” fee award — raises conflict. We are aware of no instance in which the seemingly contradictory standards have been reconciled, and indeed find that they have been used in tandem on occasion. See Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967 (Fla. 1st DCA), cert. denied 353 So.2d 678 (Fla.1977). We find, however, that the language commonly used in the first district decisions is helpful. See, e. g., Borg-Warner Acceptance Corp. v. Philco Finance Corp., 356 So.2d 830 (Fla. 1st DCA 1978): “A fee money award is payable by one party to another as an indemnity for fees reasonably contracted or incurred . . . .” 356 So.2d at 832 (emphasis supplied).

The first question a trial court must answer when faced with a demand for attorneys’ fees is not what a reasonable fee might be in the absence of any fee contract between the claiming party and his attorney, but whether the actual fee agreement against which the claimant seeks indemnity is unreasonable: Specifically, whether the agreement is excessive, under the terms of the Fla.Bar Code Prof.Resp., D.R. 2-106(B). If the fee is not excessive, and it is enforci-ble by both parties thereto, that fee should be awarded. If the fee is excessive, then the court should proceed to the determination of a “reasonable” fee, i. e., a quantum meruit fee, based on the same factors it considered when it evaluated the fee contract.

With very limited exception, Florida case-law on this subject regards contingent fee contracts between winning parties and counsel.

The amount which a person may agree to pay as a contingent fee ordinarily is not a fair measure of the value of the legal services involved. This is true because, in the case of a contingent fee where nothing will be payable in the absence of recovery, the fee to be paid in the event of recovery usually is set higher than would be a flat fee for the services actually performed. Also, if a party to a contract such as the one involved in this case could require the defaulting party to pay any fee which the former might arrange with his attorney, he would be inclined to be liberal in contracting with his attorney. It must be kept in mind that the defendant . . . was not a party to the fee contract which the (plaintiff) made with its attorneys, and is not bound thereby. Therefore, the question . . was the reasonable value of the services of plaintiff’s counsel.

Ronlee, Inc. v. P.M. Walker Co., 129 So.2d 175, 176-77 (Fla. 3d DCA 1961) (footnote omitted).

An exception to the contingent fee cases is found in Federal Insurance Co. v. Sarasohn & Co., 281 So.2d 408 (Fla. 3d DCA 1973). Below, an insured’s assignee had been awarded attorney’s fees under § 627.-428, Fla.Stat. (1973). Although its fee agreement was for $1,746, or $60 per hour, the trial court awarded fees of $2,500. This court reduced the award to the lower amount, “since the fee thus contracted for was by no means inadequate.” 281 So.2d at 410.

We expressly limit our holding to those instances in which two contracts exist: One between the parties, and one between a party and his counsel. We exempt from our consideration the awarding of fees by statutory authority which embodies public policy considerations not pertinent hereto. Cf. Bosem v. Bosem, 279 So.2d 863 (Fla.1973), rev’g 269 So.2d 758 (Fla. 3d DCA 1972).

Contractual provision for reasonable attorney’s fees is enforcible as an agreement for indemnification; an award based on such a provision is properly limited to the reasonable (read: non-excessive) expense actually incurred by the obligee thereunder: A party contractually entitled to his attorney’s fees may recover the amount he must pay his lawyer, or a reasonable fee, whichever is lower.

We affirm the final order of the trial court.

Affirmed.

      . See, e. g., Travelers Ins. Co. v. Davis, 411 F.2d 244 (5th Cir. 1969); Kaufman & Broad Home Syss., Inc. v. Sebring Airport Auth., 366 So.2d 1230 (Fla. 2d DCA 1979); Universal Underwriters Ins. Co. v. Gorgei Enterprises, Inc., 345 So.2d 412 (Fla. 2d DCA 1977); Ins. Co. of N. America v. Welch, 266 So.2d 164 (Fla. 4th DCA 1972); Old Colony Ins. Co. v. Bunts, 250 So.2d 291 (Fla. 3d DCA 1971); Ronlee, Inc. v. P.M. Walker Co., 129 So.2d 175 (Fla. 3d DCA 1961).


text:
    GEORGE HUNT, INC., et al., Appellant/Cross Appellee/Third Party Defendant, v. DORSEY YOUNG CONSTRUCTION, INC., Appellee/Cross Appellant/Plaintiff.
    No. 79-469.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Michael G. Widoff, of Michael G. Widoff, P.A., Fort Lauderdale, for appellant/cross appellee/third party defendant.
    No appearance for appellee/cross appellant/plaintiff.
   HERSEY, Judge.

Appellant, Hunt, for purposes of this litigation is in the position of General Contractor for the construction of a two building shopping center. Appellee, as a subcontractor, was to supply concrete slabs, foundations, concrete block and masonry work for the project. Upon completion of its contract appellee was unable to obtain final payment and filed suit, whereupon a jury returned a verdict awarding appellee damages in the amount of $12,500.

Appellant’s defenses were that the work was faulty and inadequate and that appel-lee refused to certify that its suppliers and laborers had been paid.

During the trial appellee was permitted to introduce testimony to the effect that (1) the reason for non-payment was that the General Contractor was short of funds; (2) an agent of the General Contractor agreed that $20,000 was owed to appel-lee; and (3) the design of certain aspects of the building rather than appellee’s workmanship caused leaking and attendant problems. In each instance the testimony was hearsay, unsupported by any other competent evidence in the record and, inasmuch as these statements go to the very heart of appellant’s defenses it cannot be said that admission of this testimony constituted harmless error. On the contrary, it seems most reasonable to suppose that the jury gave at least some, and perhaps considerable, credence to the theories supported by this hearsay evidence.

Accordingly, we reverse and remand for a new trial on that basis.

The cross appeal has been abandoned and is hereby dismissed, sua sponte.

Because the matter may be retried, we will comment briefly on two additional matters disclosed by our examination of the record in order to forestall repetition of what we perceive to be potentially harmful errors.

Appellant complains of appellee’s failure to provide the customary affidavit and general release as a condition precedent to final payment. The trial court’s refusal to give an instruction in this regard is urged as reversible error. Obviously, appel-lee would not be entitled to collect for work done or materials supplied by others unless appellee has paid for or has become legally obligated to pay for that work or those materials. In addition, the contract specifically required appellee to furnish an affidavit and general release. Consequently, ap-pellee was required both by law and by contract to provide these two documents. An instruction to that effect would be an essential aspect of the court’s explanation to the jury of the law applicable to these facts.

In addition, the evidence as to the amount of damages cannot be based on speculation or conjecture, but must be proven with certainty. Hodges v. Fries, 34 Fla. 63, 15 So. 682 (Fla.1894). The evidence on damages in this record is somewhat sketchy, vague and inconclusive. We point out that it may not be legally sufficient to support the award of damages represented by the jury verdict notwithstanding that the jury is the sole judge of such factual issues as the amount of damages. Sunrise Point, Inc. v. Reliance Realty, Inc., 371 So.2d 674 (Fla. 3rd DCA 1979). We suggest that more emphasis needs to be concentrated on this issue if the case is retried.

REVERSED AND REMANDED FOR NEW TRIAL.

LETTS, C. J., and BERANEK, J., concur.


author: SCHEB, Chief Judge.

text:
    Dorothy M. KIRKHAM, Appellant, v. Fred R. KIRKHAM, Appellee.
    No. 79-1640.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.

      Jerry R. Hussey, Bradenton, for appellant.
    Harry G. Goodheart, III, of Goodheart & Logan, Bradenton, for appellee.
   SCHEB, Chief Judge.

The husband sued to annul his marriage to the wife who counterpetitioned for dissolution. The case was assigned to Judge Grissim H. Walker who presided at the final hearing and entered final judgment on June 13, 1979, granting the annulment and directing disposition of some joint assets. The wife timely moved for rehearing alleging the final judgment contained clerical errors and failed to dispose of some issues raised by the parties. She requested Judge Walker’s office to set a hearing on her motion.

On July 1, under a plan established by the judges of the Twelfth Judicial Circuit, Judge Walker rotated to a different division. The circuit court then assigned the wife’s motion for rehearing to Judge Schaub, Judge Walker’s successor, who corrected the clerical errors but otherwise denied the motion. The wife argues that it was error for a successor judge to rule on her motion for rehearing. We agree.

Unless the original trial judge is unable by reason of death, disability or other equivalent event, or is unwilling by reason of recusation to consider a motion for rehearing, that judge should review and determine the motion. Epperson v. Epperson, 101 So.2d 367 (Fla.1958). Here, even though the circuit court assigned Judge Walker to another division, his jurisdiction to hear a motion for rehearing continued. See Mason v. Martino, 336 So.2d 396 (Fla.3d DCA 1976). Under these circumstances Judge Walker should have heard the motion. Balfe v. Gulf Oil Co., 279 So.2d 94 (Fla.3d DCA 1973).

Accordingly, we vacate the order denying rehearing and remand to the trial court for further proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.


text:
    James Alexander HARLOW, Appellant, v. STATE of Florida, Appellee.
    No. 79-2314.
    District Court of Appeal of Florida, Second District.
    July 9, 1980.
    Jack 0. Johnson, Public Defender, Bar-tow, and Samuel Robert Mandelbaum, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Hearsay testimony was all that supported the violation of the monthly support condition. Also, there was no specific finding that appellant’s financial condition would allow him to pay the supervisory fee condition. Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). Therefore, we remand for the deletion of both those violated conditions on the order of revocation of probation. In all other respects, we affirm.

HOBSON, Acting C. J., and OTT and CAMPBELL, JJ., concur.