author: COWART, Judge. COBB, Judge,

text:
    C. C. TOMLIN, Jr., Appellant, v. Carolyn ANDERSON and Quail Hollow Investments, Inc., Appellees.
    No. 80-993.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.
    Rehearing Denied April 29, 1982.

      R. L. Russell of Van Den Berg, Gay & Burke, P. A., Orlando, for appellant.
    Daniel Joy of Johnson & Joy, P. A., Sarasota, for appellees.
   COWART, Judge.

In 1971 or 1972 when appellant and two other persons each owned one-third of the stock in the corporation Quail Hollow Investments, Inc., the stockholders by agreement made entries on the corporate books to reflect, on the asset side, $60,000 notes receivable from each stockholder and balanced those entries by showing an increase of $180,000 in paid-in capital. These were but book entries and were made to make the corporation’s balance sheet look stronger and to facilitate the distribution of anticipated corporate profits to the stockholders and its return to the corporation as capital with a minimum of tax burden, it being agreed and understood that the “notes” would be payable only from distributed corporate profits. No actual promissory notes were executed and no corporate stock or other evidence of a capital interest in the corporation was issued. However, the corporation did not profit, and sometime in the latter part of 1974 the bookkeeping entries were reversed, the notes receivable entries cancelled and the corporate capital likewise reduced, and those plans and actions were forgotten.

In 1978, appellee Anderson obtained a judgment against the corporation. A court appointed receiver for the corporation, examining the corporate records, discovered the tattletale bookkeeping entries and the judgment creditor, Anderson, garnished appellant, attempting to receive payment of appellant’s “note” obligation to Quail Hollow. Appellant’s answer to the writ of garnishment denied any indebtedness to the corporation and the matter was tried. The trial court held that the transaction cancel-ling appellant’s “note” obligation to the corporation was void as being in violation of section 608.55, Florida Statutes (1975), either because it constituted a transfer of corporate property to a stockholder for the payment of debt after the corporation had refused to pay an obligation due, or because it constituted a transfer with the intent of giving a preference to appellant as a creditor when the corporation was insolvent or its insolvency was imminent. Alternatively, the cancellation was held to be void because the cancellation transaction was a distribution to stockholders that reduced corporate capital assets below corporate liabilities contrary to section 608.18(6), Florida Statutes (1975). Final judgment against appellant was entered in favor of the judgment creditor and this appeal followed.

The first sentence in section 608.-55, Florida Statutes (1975), prohibits the transfer of property to an officer, director or stockholder by a corporation “which shall have refused to pay any of its notes or other obligations when due.” Evidence of this actual refusal by the corporation to pay its obligations is essential before a transaction may be voided under this statute. Headley v. Pelham, 366 So.2d 60 (Fla.1st DCA 1978); Venice East, Inc. v. Manno, 186 So.2d 71 (Fla.2d DCA 1966). There was no evidence that Quail Hollow had refused to pay any of its debts or obligations when due. The only evidence of the financial situation of the corporation was that, at the time of the cancellation transaction, the corporation’s liabilities exceeded its assets. Therefore, the cancellation transaction could not be voided under the first sentence of section 608.55.

The second sentence of section 608.55 prohibits conveyances, assignments or transfers of property which have the effect of creating a preference in a particular creditor by a corporation “when the corporation is insolvent or its insolvency is imminent.” Proof of the insolvency or imminent insolvency of the corporation is essential to void a transaction under this portion of the statute. James Talcott, Inc. v. Crown Industries, Inc., 323 So.2d 311 (Fla.2d DCA 1975); Williams v. American Crafts, Inc., 129 So.2d 165 (Fla.3d DCA 1961); accord, Ryder Truck Rental, Inc. v. Missouri Beef Packers, Inc., 358 So.2d 103 (Fla.3d DCA 1978). In this case, there was testimony from the court appointed receiver that at the time of the cancellation transaction the corporation’s liabilities exceeded its assets. Thus, insolvency in the strict bookkeeping sense was shown. However, this has been held insufficient, as the courts have interpreted “insolvency” to refer to insolvency in the equity sense, i.e., the inability of the corporation to meet its debts in the ordinary course of business. “The test of insolvency under this statute is not whether the books show an excess of liabilities over assets, but rather whether the corporation has a general inability to answer in the course of business the liabilities existing and capable of being enforced.” James Talcott, Inc., 323 So.2d at 314; accord, Williams v. American Crafts, Inc., 129 So.2d at 168.

Section 608.18(6), Florida Statutes (1975), in effect provides that no reduction in capital involving any distribution among stockholders shall be made which reduces the assets of the corporation below the amount of its liabilities including capital as reduced. Since the court appointed receiver’s testimony was that, at the time of the cancellation transaction, the corporation’s liabilities had already exceeded the corporation’s assets, the cancellation transaction could not have been the event which reduced the assets of the corporation below . the amount of its liabilities.

However, even assuming the cancellation transaction was illegal under this statute, the transaction was merely voidable by creditors of the corporation and, until the cancellation was voided by judicial determination, it was effective to cancel the debt and appellant had no liability to the corporation. The garnishment statute, section 77.01, Florida Statutes (1979), allows garnishment only of “any debt due to defendant by a third person.” Under this statute, a debt, to be subject to garnishment, must be due absolute and without contingency. Cobb v. Walker, 144 Fla. 600, 198 So. 324 (1940). “If there is anything contingent or to be done by a person before the liability of another becomes fixed, there is not such an ‘indebtedness due’ as contemplated by the statute to which a writ of garnishment can apply.” West Florida Grocery Co. v. Teutonia Fire Insurance Co., 74 Fla. 220, 77 So. 209 (1917). See also 13 Fla.Jur.2d Creditors’ Rights and Remedies § 96 (1979). At the time of the service of the writ of garnishment, the cancellation transaction had not been voided; therefore, appellant did not then owe a debt that was due and that could be enforced by garnishment.

An additional basis for the result in this case is that the record shows without any dispute that the “note indebtedness” or “bookkeeping entries” were in fact “bogus” transactions. There was no consideration for them, and the garnishee (appellant) denied he owed the corporation anything. Clearly the garnishee (appellant) can raise in defending a garnishment suit, any defenses he has or would have against the principal debtor (Quail Hollow). Since appellant established in this case that the debt sought to be garnished was invalid or unenforceable by Quail Hollow because of lack of consideration, there was no “debt due” to Quail Hollow, and there was therefore nothing to be garnished.

In coming to our conclusion that this case must be reversed, we do not rely upon the affirmative defenses asserted by appellant relating to the statute of limitations, the fact that appellant’s indebtedness to the corporation was to be paid only from a distribution of corporate profits or appellant’s asserted rights of setoff against any obligation appellant may owe to the corporation. Accordingly, we are not required to determine whether such affirmative defenses were waived because they were not specifically pled as required by Florida Rule of Civil Procedure 1.110(d) or whether such affirmative defenses should have been considered, although not pleaded, because garnishment proceedings constitute “special statutory proceedings” to which the Florida Rules of Civil Procedure do not apply by virtue of Florida Rule of Civil Procedure 1.010.

For the reasons given above, the entry of the final judgment on the writ of garnishment was improper, the final judgment is accordingly reversed and the writ of garnishment is dismissed.

SHARP, J., concurs.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting.

In 1973, Quail Hollow sold some property that was jointly owned by Quail Hollow and Anderson, but Quail Hollow did not inform Anderson of the sale.

In 1974, Quail Hollow had liabilities that exceeded its assets and it still had not given Anderson her half of the proceeds from the 1973 property sale. While in that financial situation, Quail Hollow made some bookkeeping entries that discharged notes receivable from the three stockholders, including a $60,000 note from Tomlin.

In 1978, Anderson finally got a judgment against Quail Hollow. In the following garnishment proceeding, Anderson had the discharge of Tomlin’s note to Quail Hollow set aside pursuant to sections 608.55 and 608.18(6), Florida Statutes (1973), so that Anderson could garnish the debt.

With this evidence before it, the trial court had competent substantial evidence on which to base its decision that the bookkeeping transactions were done in violation of sections 608.55 and 608.18(6), Florida Statutes (1973), and were therefore void.

I would affirm.

      . The differing proof requirements between the first and second sentences of this statute were discussed in Alberts v. Schneiderman, 182 So.2d 50 (Fla. 3d DCA 1966).

      . See § 673.408, Fla.Stat. (1979).

      . Blatch v. Wesley, 238 So.2d 308 (Fla. 3d DCA 1970); see Thompson v. Commercial Union Ins. Co. of N. Y., 267 So.2d 18 (Fla. 1st DCA), cert. denied, 271 So.2d 461 (Fla.1972); 13 Fla.Jur.2d Creditors’ Rights and Remedies, §§ 82, 150 (1979).

      . § 77.01, Fla.Stat. (1979).

      . Section 608.18(6), Florida Statutes (1973), provides:
      Every reduction in capital involving any distribution among stockholders shall specify the method of such distribution and said distribution shall be made in accordance with the provisions of the certificate of incorporation designating the rights, preferences and restrictions of the respective kinds, classes or series of stock. No such distribution shall be made which would reduce the assets of the corporation below the amount of its liabilities including capital as reduced.
      Section 608.55, Florida Statutes (1973), provides:
      Prohibited transfers to officers or stockholders; transfers after or in contemplation of insolvency. — No corporation which shall have refused to pay any of its notes or other obligations when due, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid, except as to any rights or interests which may be acquired thereunder by any person for a valuable consideration and without notice or reasonable cause to believe that such conveyance, assignment, transfer, payment, judgment, lien or security would effect a preference. Every person receiving by means of any such prohibited act or deed any property of a corporation shall be bound to account therefor to its creditors or stockholders. No holder of stock not fully paid in any corporation shall transfer it to any person in contemplation of the corporation’s insolvency. Every transfer or assignment or other act done in violation of the foregoing provision of this section shall be void except as herein before provided. The directors or officers of a corporation who shall violate or be concerned in violating any provision of this section shall be personally liable to the creditors and stockholders of the corporation of which they shall be directors or officers to the full extent of any loss such creditors and stockholders may respectively sustain by such violation.


source: Caselaw Access Project

author: SHARP, Judge.

license: Public Domain

text:
    CITY OF WINTER SPRINGS, a Municipal Corporation, Appellant, v. FLORIDA LAND COMPANY, Appellee.
    No. 80-1461.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.
    Rehearing Denied April 29, 1982.
    Wallace F. Stalnaker, Jr., of Jones, Morrison & Stalnaker, P. A., Altamonte Springs, for appellant.
    Ernest R. Drosdick of Lowndes, Drosdick, Doster & Kantor, P. A., Orlando, for appel-lee.
   SHARP, Judge.

Appellant, the City of Winter Springs, seeks reversal of a final summary judgment in favor of appellee, Florida Land Company, so that a referendum election pertaining to zoning may proceed. We reverse the summary judgment.

The summary judgment sets out the following findings of fact:

1. That Florida Land is the fee simple owner of real property which is the subject matter of this cause (hereinafter “Property”) situate within the boundaries of the City.
2. That at the time Florida Land became the fee simple owner of the property it had a zoning classification of R-U “Rural Urban Development.”
3. That Florida Land subsequently filed an application with the City to rezone the property from the R-U classification to a classification of R-1A, One Story Family Dwelling.
4. That on or about April 22, 1980, the City adopted Ordinance No. 210, which changed the zoning of the property from the R-U classification to R-1A and R-1AA.
5. That subsequent to the adoption of Ordinance No. 210 a citizens committee was formed for the purpose of commencing referendum proceedings under Article X, section 10.01(b) of the City Charter to require the City Council to reconsider Ordinance No. 210, and to require the submission of Ordinance No. 210 to a vote of the electorate of the City should the City Council decline to repeal said ordinance.
6. That the City Clerk determined that the referendum petitions submitted by the citizens’ committee contained the requisite number of signatures required under the referendum procedure to cause the reconsideration by the City Council and holding of a referendum election.
7. That as a result of the initiation of the referendum proceeding Ordinance No. 210 has been suspended and Florida Land cannot develop its property in a manner consistent with R-1A and R-1AA zoning classifications.
8. That the City Council has voted not to repeal Ordinance No. 210.
9. That the referendum process of the City as applied to allow the voters of the City to consider whether to repeal a zoning ordinance has the effect of granting to the voters the authority to rezone real property outside of the procedures established for that purpose in the statutes of the State of Florida and the City’s Zoning Code.
10.That the County and Municipal Planning for Future Development Act, Chapter 163, Florida Statutes, (1979) [sic] confers upon the City the responsibility and power to adopt comprehensive land use plans and comprehensive zoning ordinances, and additionally delegates the authority to the City to change the zoning classifications on individual parcels of property within the guidelines established in said chapter.
11. That pursuant to authority granted by Chapter 163, the City did adopt a Comprehensive Development Plan in September, 1977.
12. That the City has enacted a Zoning Code, Chapter 44 of the City Code, under authority granted by the Legislature which code sets forth the procedures for rezoning and delineates the responsibility of the City Council to determine whether to rezone individual parcels of real property.

Appellee sought to enjoin the referendum election to prevent a vote on whether Zoning Ordinance Number 210 should be repealed. The trial court found and declared the referendum procedure unconstitutional and invalid because it denied appellee notice and the opportunity to be heard, and because the referendum process constituted an improper delegation of the City’s legislative authority by failing to impose adequate guidelines or standards to determine the suitability of a proposed change in a zoning classification. The court enjoined the City of Winter Springs from holding a referendum election on the question of whether to repeal Ordinance Number 210, and it reinstated the Ordinance.

In its Order denying the motion for rehearing the trial court noted that the “decision to find for the plaintiff was and continues to be complicated by a division of authority in this state.” The cases upon which the trial court based this conclusion are City of Coral Gables v. Carmichael, 256 So.2d 404 (Fla. 3d DCA 1972) and Andover Development Corporation v. City of New Smyrna Beach, 328 So.2d 231 (Fla. 1st DCA 1976).

In City of Coral Gables the City enacted an ordinance rezoning certain property later involved in the suit. A referendum procedure provided by the City’s Charter was invoked to submit the ordinance to a vote of electors for approval or rejection. Ultimately a permanent injunction against the referendum was issued and an appeal followed. The Third District Court of Appeal held that the record showed nothing illegal concerning the referendum proceeding itself, and it reversed the injunctions restraining the progress of the referendum.

In Andover Development Corporation the appellant sought to require a city to issue it a building permit to build a condominium apartment development on a parcel of land. The condominium could have been built under the original zoning when appellant acquired the land, but through the procedure of initiative and referendum the zoning ordinance applicable to the subject property was changed and, at the time of suit, it severely restricted the density of buildings. The district court observed that the rezoning was “in substantial part motivated and directed” at Andover’s tract of land. 328 So.2d at 235. The district court held that the City was equitably estopped from denying Andover a building permit, and the record showed in that case that the “initiative and referendum action was arbitrary and capricious.” It reversed the decision of the trial court.

We think that the City of Coral Gables controls this case, rather than Andover. Andover is distinguishable from this case because in Andover the appellant had an equitable estoppel defense to the repeal of the original zoning ordinance. There is no such argument available in this case because the appellees owned and acquired their property while it was subject to the earlier zoning.

Andover can be further distinguished from the instant case because Andover involved the challenge of a zoning ordinance, enacted by initiative and referendum, rather than the initiative and referendum process itself. The Andover court held the zoning ordinance was arbitrary and capricious as applied to the appellant’s land. This is the classical method of attacking zoning ordinances. Presumably, any zoning ordinance can be challenged under the arbitrary and capricious standard, whether it is established by referendum or by city council, but, the present case does not present (as yet) that issue because the challenged zoning has not yet occurred.

Furthermore, the Andover court disapproved the City of Coral Gables decision stating that City of Coral Gables is based on a California case (Dwyer v. City Council of Berkeley, 200 Cal. 505, 253 P. 932 (1927)), which recent California courts have rejected. The trial court in the instant case also relied on this reasoning in following And-over. However, Andover does not cite any California case which rejects the reasoning of Dwyer; nor has appellee cited for our benefit any such case. To the contrary, the California Supreme Court cited Dwyer with approval in Associated Home Builders v. City of Livermore, 135 Cal.Rptr. 41, 557 P.2d 473 (Ct.App.1976). Andover also relied on an Ohio Supreme Court opinion, Forest City Enterprises, Inc. v. City of East Lake, 41 Ohio St.2d 187, 324 N.E.2d 740 (1975), which was later reversed in City of East Lake v. Forest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976). The rationale of the United States Supreme Court supports our decision in the instant case.

The issue in City of East Lake was whether a city charter provision requiring proposed land use changes to be ratified by a fifty-five percent vote of the electorate would violate the due process rights of a landowner who applies for a zoning change. The Supreme Court held that a referendum cannot be characterized as a delegation of power. It reasoned that all power derives from the people, and they can delegate it to the representative instruments they create. “In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the Legislature.” 426 U.S. at 672, 96 S.Ct. at 2361. The Court noted that the Ohio Constitution specifically reserves the referendum power in Article II, Section If. 426 U.S. at 673, 96 S.Ct. at 2362.

The Court held that the constitutional doctrine, that a delegation of power to a regulatory entity must be accompanied by discernible standards so the delegatee’s actions can be measured for their fidelity to the legislative will, is not applicable to a reservation of power by the people to themselves.

A referendum ... is the city itself legislating through its voters — an exercise by the voters of their traditional right through direct legislation to override the views of their elected representatives as to what serves the public interest. ... As a basic instrument of democratic government, the referendum process does not, in itself, violate the Due Process Clause of the Fourteenth Amendment when applied to a rezoning ordinance.

426 U.S. at 678-79, 96 S.Ct. at 2364-65. If the referendum result is itself unreasonable,

the zoning restriction is open to challenge in state court, where the scope of the state remedy available to the respondent would be determined as a matter of state law, as well as under Fourteenth Amendment standards.

426 U.S. at 677, 96 S.Ct. at 2364.

Following the principals enunciated in City of East Lake, we conclude that the reservation of zoning power by referendum does not violate federal due process. In Florida, as in Ohio, the referendum power has been reserved to the people. The Florida Constitution provides that “[a]ll political power is inherent in the people,” and the enunciation therein “of certain rights shall not be construed to deny or impair others retained by the people.” Another section expressly states: “Special elections and ref-erenda shall be held as provided by law.” There is no limitation in the Florida Constitution as to subject matter in the legislative realm which is inappropriate for referenda.

The Charter of the City of Winter Springs clearly provides for holding the referendum election in this case. The record shows that in adopting the ordinance by which the zoning was changed on the subject property, the City complied with all procedural requirements of section 166.-041(3)(c)(l), Florida Statutes (1979), pertaining to zoning and rezoning. Only after those statutorily required proceedings took place did the citizens of Winter Springs seek a referendum on the question of the Council’s action in approving the rezoning request. The record also shows this procedure commenced in conformity with the City’s Charter. At that point no further 'rezoning procedures were required. When the people of Winter Springs sought to review the change by referendum, they removed the issue from the forum of the Council to the forum of the electorate. Such a referendum procedure does not grant the landowner any statutory or constitutional rights to notice and hearing.

The trial court was in error in holding the referendum procedure under the Charter of the City of Winter Springs was unconstitutional and invalid. The Summary Judgment in favor of appellee Florida Land Company is’reversed.

REVERSED AND REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

      . The court based the appellee’s right to notice and opportunity to be heard on Article I, Section 6 of the Florida Constitution, Chapter 163 of the Florida Statutes, and Chapter 44 of the Winter Springs Code.

      . U.S.Const. amend. XIV.

      . Town of Indialantic v. McNulty, 400 So.2d 1227 (Fla. 5th DCA 1981).

      . The Ohio Constitution also provides: “The legislative power of the State shall be vested in a General Assembly ... but the people reserve to themselves the power to propose to the General Assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote ..,” Art. II, § 1, Ohio Const.

      . Art. I, § 1, Fla.Const.

      . Art. VI, § 5, Fla.Const.

      . The State Legislature, which authored the charter of the City of Winter Springs in Special Acts, Chapter 72-718, specifically enumerated the powers of initiative and referendum:
      The qualified voters of this city shall have the power to require reconsideration by the council of any adopted ordinance and, if the council fails to repeal an ordinance so reconsidered, to approve or reject it at a city election, provided that such challenge shall not extend to the budget or capital programs or any emergency ordinance or ordinance relating to appropriations of money or levy of taxes.
      Article X, Section 10.01(b) Charter of the City of Winter Springs. The referendum, as provided for in the City’s charter, cannot be called into operation until the City Council has promulgated an ordinance.


author: SHAW, Judge.

text:
    Thomas G. GRICE and Lilia Grice, Personal Representatives of the Estate of Debbie Diane Grice, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, FLORIDA, and Tallahassee Memorial Regional Medical Center, Inc., Appellees.
    No. XX-156.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    Rehearing Denied May 11, 1982.
    Wilmer H. Mitchell of Wilmer H. Mitchell, P. A., Pensacola, for appellants.
    Dominic M. Caparello of Messer, Rhodes & Vickers, Tallahassee, for appellees.
   SHAW, Judge.

Appellants sued the Board of County Commissioners of Madison County, Florida, and Tallahassee Memorial Hospital for negligence in transporting their daughter, by ambulance, from Tallahassee, Florida, to Gainesville, Florida, for emergency care. The ambulance owned and operated by Tallahassee Memorial Hospital broke down in Madison County, necessitating transfer to an ambulance owned by Madison County. The second ambulance also failed, and the child was transferred to a third ambulance. Appellants filed suit in the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, alleging that the defective vehicles delayed the trip by three hours, during which time the child took a turn for the worse and eventually died.

When appellants sued in Leon County, Madison County asserted its home venue privilege, which allows the state or one of its agencies or subdivisions, absent waiver or exception, to be sued in the county where the state, agency, or subdivision maintains its principal headquarters. The trial judge recognized the privilege and dismissed the portion of the suit against Madison County without prejudice to refiling in that county. Appellants argue that the cause is not sev-erable and therefore should constitute an exception to the home venue privilege. Ap-pellees answer that the only exception is the “sword-wielder” doctrine which does not apply here.

In cases where a cause is severable and a county asserts its home venue privilege, the courts have either transferred or dismissed without prejudice that portion of the action to which the privilege attaches. See County of Volusia v. Atlantic International Investment Corp., 394 So.2d 477 (Fla. 1st DCA 1981), and Southern Gulf Utilities v. Mayo, 239 So.2d 146 (Fla. 1st DCA 1969). Appellants claim that this case is not severable, because mechanical defects in both ambulances combined to delay arrival in Gaines-ville by three hours. During that time, the child suffered convulsions and other complications which required care unavailable in an ambulance. It is appellants’ theory that the total delay contributed to the death, and it is impossible to separate the effect of the first delay from that of the second. When alleged joint liability arises from a continuous sequence of events in separate counties, it would be highly impractical for the plaintiff and the court if separate law suits were maintained in each county.

The issue presented is whether a governmental entity may exercise its home county venue privilege when it is made a co-defendant in a suit predicated upon alleged unseverable joint tortious activity involving governmental entities from different counties, each enjoying the home venue privilege. We find no Florida case precedent on point. Our sister court, in addressing an analogous but distinguishable situation, held that eliminating the home venue privilege when co-defendants are separate counties is within the province of the legislature, not the courts. Lake County v. Friedel, 387 So.2d 514 (Fla. 5th DCA 1980). We have no quarrel with this reasoning, but in this instance the elimination of the home venue privilege is not at issue. The Florida Supreme Court in Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1978), cites with approval 34 Florida Jurisprudence Venue Section 27 which reads as follows:

It is the policy of this state to require that its officials and boards be sued in the county of their official residence, unless this privilege is waived. . . . Under exceptional circumstances, a complainant may be entitled to sue a public official or board in a county other than that of his or its official residence. One recognized exception to the rule exists where an unlawful invasion of a lawful right secured to the plaintiff by the constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. Parties seeking relief from alleged threats to their personal and property rights by the operation of constitutional acts of an agency of the state may bring suit in the county where the alleged wrongs are threatened or are alleged to have been committed. But in the absence of waiver on the part of a state agency of its right, and in the absence of action bringing it within the exceptions to the rule, an action brought against a state agency in a county other than that of its official residence is subject to dismissal.

The Carlile. opinion thus recognizes that there may exist exceptional circumstances under which the local venue privilege must yield. In the opinion of this court, the instant case is such an exception. The appellants allege injury flowing from the un-severable joint tortious actions of two governmental entities, each enjoying local venue privilege. The cause of action is not properly severable under the usual rules, and strict adherence to the venue privilege would result in forcing the plaintiffs (appellants) to file identical suits in separate counties involving the same facts and issues. Such blind adherence to the privilege is counterproductive and contrary to the legislative purpose of promoting orderly and uniform handling of state litigation and minimizing expenditure of public funds and manpower. We therefore REVERSE the dismissal of the appellants’ case against Madison County with directions to reinstate the cause in Leon County.

Due to the possible implications of this decision, and because we feel this appeal involves an issue of great public importance that will affect the administration of justice throughout the state, we certify the following question to the Florida Supreme Court:

IS AN EXCEPTION TO THE HOME VENUE PRIVILEGE CREATED WHEN A PLAINTIFF STATES AN UNSEVERABLE CAUSE OF ACTION AGAINST JOINT TORTFEASORS WHICH ARE GOVERNMENTAL ENTITIES IN SEPARATE COUNTIES? REVERSED AND REMANDED.

McCORD and ERVIN, JJ., concur.


author: SCHOONOVER, Judge.

text:
    William BOWMAN, Jr., Appellant, v. C. Allen PEELE, Appellee.
    No. 81-1408.
    District Court of Appeal of Florida, Second District.
    April 2, 1982.
    Rehearing Denied April 28, 1982.
    J. Patrick McElroy of Greene, Mann, Rowe, Stanton, Mastry & Burton, Clear-water, for appellant.
    Wm. Newt Hudson of Louis E. Stolba, P. A., St. Petersburg, for appellee.
   SCHOONOVER, Judge.

This is an appeal from a final judgment dismissing the appellant’s complaint against the appellee, C. Allen Peele, for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). We reverse.

In 1976, the appellant filed a complaint against the appellee, John M. Dickey, and the St. Petersburg Beach Motor Inn, Inc. Bankruptcy proceedings were subsequently filed by John M. Dickey and the St. Peters-burg Beach Motor Inn, Inc. The proceeding was accordingly stayed as to those two defendants, but not as to the appellee. After the appellant conducted no record activity for more than one year, the appellee filed a motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). The lower court granted the motion and dismissed the appellant’s complaint.

The appellant contends that the rule applies to actions, and not to parties, and therefore the trial court erred in dismissing the appellee. The Third District Court of Appeal in the case of Phillips Petroleum Co. v. Heimer, 339 So.2d 284 (Fla. 3d DCA 1976), held that the rule is directed towards dismissal of causes of action rather than particular parties to an action, and based upon that decision, we agree with the appellant’s contention.

The appellee’s reliance on the supreme court’s holding in the case of Koppers Co., Inc. v. Victoire Development Corp., 284 So.2d 193 (Fla.1973), is misplaced. A review of that case indicates the court had not acquired jurisdiction over the party who filed the motion to dismiss for failure to prosecute. In the case sub judiee, jurisdiction had been obtained over all of the parties.

Where the court has acquired jurisdiction over all of the parties, a motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e) will not lie as to an individual party. Accordingly, if an action is stayed as to one or more of the parties either by court order or by an automatic stay invoked because of the federal bankruptcy act, it will not be dismissed for failure to prosecute. To hold otherwise would frustrate the purpose of the rule which is to expedite and simplify litigation, not to cause additional litigation through no fault of the one moved against. It is true that the appellant could have proceeded against the appellee individually, but to do so, without severing the cause of action, would not have expedited the litigation. Action against the appellee would not have affected the other defendants and accordingly would not have advanced the entire case toward its ultimate disposition.

We accordingly reverse and remand for proceedings consistent herewith.

GRIMES, A. C. J., and OTT, J., concur.


author: PER CURIAM.

text:
    Robert Lee BROWN, Appellant, v. RACE & RACE and Fidelity & Casualty Co. of New York, Appellees.
    No. AC-395.
    District Court of Appeal of Florida, First District.
    April 5, 1982.

      Susan R. Whaley of MacFarlane, Ferguson, Allison & Kelly, Tampa, and W. James Kelly, Lakeland, for appellant.
    Ellen H. Lorenzen, Tampa, for appellees.
   PER CURIAM.

The claimant Brown appeals an order of the deputy commissioner assigning a 35% permanent partial disability (PPD) rating based on loss of wage earning capacity. Claimant contends that the evidence compels a finding that he is permanently and totally disabled (PTD) based on his loss of wage earning capacity. From the record before us we are unable to determine the basis for the order which rejects that contention and concludes that claimant, due to “impairment, . . . age, education, work history, and marketable skills,” is now “capable of obtaining and holding . . . sedentary minimum wage level employment.” We therefore reverse and remand for reconsideration of that issue.

In support of his position, claimant points to his extensive work search and correctly argues that such evidence has been found sufficient to shift the burden to the employer/carrier (E/C) to demonstrate that there is work available which the claimant is capable of doing. Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975). Since no such evidence was produced by the E/C, claimant asserts that he is entitled to PTD benefits.

However, in this case the evidence in support of the claim for total loss of earning capacity clearly required the deputy to evaluate the credibility of claimant’s testimony. Even though that testimony as to subjective symptoms as well as inability to get employment was uncontroverted, the deputy could of course reject it in whole or in part. Tatum v. Leon Moss Dairy, 339 So.2d 639 (Fla.1976). If the record or order contained any indication that the deputy doubted the good faith of claimant’s evidence of unemployability and the debilitating effects of his injuries, we would be inclined to affirm the award. John Caves Land Development Co. v. Suggs, 352 So.2d 44 (Fla.1977). Absent any such finding or inference, the case is remanded with instructions to the deputy to clarify or reconsider the denial of compensation for permanent disability in excess of 35% based on the existing record.

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    Kevin T. STATA, Appellant, v. STATE of Florida, Appellee.
    No. AF-39.
    District Court of Appeal of Florida, First District.
    April 5, 1982.
    Rehearing Denied May 11, 1982.
    William W. Corry, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed on authority of Zeigler v. State, 402 So.2d 365 (Fla.1981); Tremain v. State, 336 So.2d 705 (Fla. 4th DCA 1976).

MILLS, LARRY G. SMITH and SHAW, JJ., concur.


author: ROBERT P. SMITH, Chief Judge.

text:
    Ina Chiquita STEWART, Appellant, v. Douglas Earl COLEMAN, Appellee.
    No. AI-88.
    District Court of Appeal of Florida, First District.
    April 5, 1982.
    Rehearing Denied May 11, 1982.
    Bill A. Corbin, Blountstown, for appellant.
    C. Edwin Rude, Jr. and J. Lawrence Johnston of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellee.
   ROBERT P. SMITH, Chief Judge.

We affirm the circuit court’s order changing the venue of this paternity suit from Liberty County, where the plaintiff mother filed the action, to Leon County. By virtue of Section 742.021, Florida Statutes (1979), plaintiff was entitled to select venue as between “the county in which the woman resides or the county in which the alleged father resides.” Because venue was properly laid in Liberty County, where the mother lived at the time of filing, the defendant father was not entitled as of right to venue in Leon County, notwithstanding that other litigation affecting another child of the parties was already pending there. But for the convenience of the parties or witnesses and in the interest of justice, the court was empowered to change venue, Section 47.122, and here the court did so to consolidate the related litigation and because both parties resided, at the time of the transfer, in Leon County. That Section 742.021 grants the woman the initial choice of venue in paternity proceedings does not compromise the court’s power, in these as in other civil cases, to change venue upon a proper showing. See Paulet v. Hickey, 206 So.2d 29, 30 (Fla.2d DCA 1968).

AFFIRMED.

McCORD and BOOTH, JJ., concur.


author: BASKIN, Judge.

text:
    Aaron HOLLOWAY, Appellant, v. The STATE of Florida, Appellee.
    No. 80-2516.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied May 10, 1982.
    Bennett H. Brummer, Public Defender and Harold T. Smith, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John F. Ro-benalt, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

We reverse defendant Holloway’s convictions of burglary and grand theft because the record discloses that defense counsel was denied the right to exercise remaining peremptory challenges prior to the swearing of the jury.

[T]he right of a prisoner to challenge any juror peremptorily is absolute at any time before the juror is sworn, and ... no circumstances can bring that right within the discretion of the court so long as it is confined to the number of peremptory challenges allowed by law.

O’Connor v. State, 9 Fla. 215, 228-29 (1860); Ellis v. State, 25 Fla. 702, 6 So. 768 (1889); Walden v. State, 319 So.2d 51 (Fla. 1st DCA 1975); Shelby v. State, 301 So.2d 461 (Fla. 1st DCA 1974); Knee v. State, 294 So.2d 411 (Fla. 4th DCA 1974); Kennick v. State, 107 So.2d 59 (Fla. 1st DCA 1958); Fla.R.Crim.P. 3.350; Fla.R.Crim.P. 3.310.

Reversed and remanded for a new trial.


author:
PER CURIAM.
      BASKIN, Judge

text:
    Eduardo QUINONES and Maria Quinones, his wife, Appellants, v. NATIONAL AIRLINES, INC., etc., Appellee.
    No. 81-198.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Rehearing Denied May 10, 1982.
    Neil Carver, Coral Gables, Greene & Cooper and Sharon L. Wolfe, Miami, for appellants.
    Barwick, Caldwell & Currie, Miami Shores, and Shelley H. Leinicke, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed.

BASKIN, Judge

(dissenting).

I would reverse and remand for jury trial because, in my opinion, genuine issues of material fact exist concerning whether National Airlines negligently breached its assumed obligation to supply adequate equipment, resulting in injury to appellant.


text:
    James E. WHITE and Kathleen E. White, Appellants, v. CITY OF JACKSONVILLE, Appellee.
    No. AC-97.
    District Court of Appeal of Florida, First District.
    April 8, 1982.
    Robert M. Sharp and W. Douglas Childs of Bullock, Sharp, Childs, Mickler & Cohen, Jacksonville, for appellants.
    Dawson A. McQuaig, Gen. Counsel, William Lee Allen and Grady W. Martin, Asst. Counsels, Jacksonville, for appellee.
   PER CURIAM.

White appeals the trial court’s order for equitable distribution entered subsequent to a workers’ compensation order granting benefits and to the settlement of a personal injury suit. Section 440.39(3)(a), Fla.Stat. (1977). Appellant asserts as error the trial court’s failure to reduce to present value the amount to which the employer is entitled as repayment for the payment of future benefits to the employee. We reverse and remand with instructions to the trial court to determine the value of future compensation and to enter an order reducing the carrier’s award to reflect the present value of future compensation to be paid.

White was injured in November, 1978, while in the course and scope of his employment with the City of Jacksonville. Jacksonville began paying workers’ compensation benefits. Appellant then sued a third party and Jacksonville moved for equitable distribution pursuant to Section 440.39, Florida Statutes (1977). The employee recovered damages from the third party. Subsequently, the trial court calculated the amount payable to Jacksonville for benefits already paid and for those which would be due in the future. The trial court then ordered this total amount, not reducing the amount for future benefits to present value, paid to Jacksonville.

Section 440.39(3)(a) and (4)(a), Florida Statutes (1977), provide that the employer or carrier may file a lien in an action instituted by the employee or, in certain circumstances, may itself file suit to recover its prorata share of any recovery obtained in a third party tortfeasor action.

Section 440.39(4)(a), provides the employer or carrier may recover:

All amounts paid as compensation and medical benefits under the provision of this law and the present value of all future compensation benefits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments of compensation are to be made ....

Although Section 440.39(4)(a), addresses only those situations in which the suit is initiated by the employer or carrier, the various parts of that subsection, when read in para materia, require that any recovery by the carrier or employer for the payment of future benefits be reduced to present value.

The District Court of Appeal, Second District, has treated the issue effecting a similar result. See, Ramar-Dooley Construction Co. v. Norris, 341 So.2d 546 (Fla. 2nd DCA 1977). In Ramar-Dooley, the court affirmed the trial court’s order requiring the employee to keep in escrow a portion of the employee’s award obtained in a third party action to assure repayment of the carrier’s prorata share of future benefits. We note that Section 440.39(4)(a) requires that the portion of the equitable distribution alloted for repayment of future benefits to be reduced to present value and requires that amount to be “retained as a trust fund from which future payments of compensation are to be made. ... ” Accordingly, we adopt the method utilized in Ramar-Dooley for providing repayment to the employer for future compensation benefits. The order below is REVERSED to the extent it is inconsistent with this opinion. The cause is REMANDED for recalculation of the amount to be equitably distributed to the City of Jacksonville.

SHAW and JOANOS, JJ., and BEN C. WILLIS, Associate Judge, concur.


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. Stephen P. MILLER, Respondent.
    No. AJ-272.
    District Court of Appeal of Florida, First District.
    April 8, 1982.
    Roy L. Glass of DeSerio & Glass, St. Petersburg, for petitioner.
    Ronald H. Schnell of Carr & Sehnell, St. Petersburg, for respondent.
   PER CURIAM.

In this petition for writ of certiorari, petitioner alleges that the trial court erred by: (1) denying petitioner’s motion for summary judgment on the basis of sovereign immunity; and (2) ordering the petitioner to produce certain specified information respecting the assaultive tendencies of one who was under petitioner’s care.

This court has entertained petitions for writs of certiorari to review interlocutory orders determining issues of sovereign immunity. However, in the instant case, it appears that there may be factual matters which remain to be developed at trial bearing on the issue of sovereign immunity. We, therefore, decline to issue the writ, without prejudice to petitioner’s right to raise the issue of sovereign immunity on appeal from final judgment.

As to the second point raised, the petition for writ of certiorari is denied, there being no departure from the essential requirements of law.

ROBERT P. SMITH, Jr., C.J., and McCORD and BOOTH, JJ., concur.

      . Bellavance v. State, 390 So.2d 422 (Fla. 1st DCA 1980), petition for review denied, 399 So.2d 1145 (Fla.1981).


author: DANIEL S. PEARSON, Judge. FERGUSON, Judge

text:
    Stephen GONZALEZ and United States Fidelity & Guaranty Company, Appellants, v. Lawrence GONZALEZ, Appellee.
    No. 81-1199.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Rehearing Denied May 10, 1982.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring and Anthony L. Piet-rofesa, Miami, for appellants.
    Phillip Freidin, Claudia B. Greenberg, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

Stephen Gonzalez and United States Fidelity & Guaranty appeal from a summary judgment on liability granted in favor of Lawrence Gonzalez, the plaintiff below. The appellants contend that the trial court’s determination that Stephen was negligent and thus liable derives from an incorrect application of the doctrine of collateral es-toppel. We agree with this contention and reverse.

On February 17,1977, Lawrence Gonzalez was involved in an accident while riding in a car driven by his brother, Stephen Gonzalez. The car collided with a van owned by the United States and operated by a United States Marshal. Stephen and Lawrence Gonzalez as co-plaintiffs sued the United States Government in the United States District Court for the Southern District of Florida pursuant to the Federal Tort Claims Act, Title 28 U.S.C. Section 1346. The federal court held that the United States, through its employee, was not guilty of negligence which proximately caused the accident. The action was dismissed on the merits against the Gonzalezes. Lawrence Gonzalez then sued Stephen Gonzalez in state court for injuries arising from that accident. The trial court determined that Stephen Gonzalez was to some degree negligent and granted Lawrence’s motion for partial summary judgment. It arrived at this conclusion by deductively reasoning that since the record is clear and uncontra-dicted that Lawrence was not negligent and the accident was not unavoidable; and since the federal court finding collaterally estops Stephen from claiming that the driver of the Government van was negligent; ergo, Stephen was negligent. The deduction, of course, is sound only if collateral estoppel applies.

In Florida, however, a party who asserts the doctrine of collateral estoppel must show, inter alia, that the issue was fully litigated between the parties. Mobil Oil Corporation v. Shevin, 354 So.2d 372 (Fla.1977). As this court so recently and clearly stated in Southern Bell Telephone & Telegraph Company v. Robinson, 389 So.2d 1084, 1085 (Fla.3d DCA 1980):

“It is a prerequisite to the application of the doctrine of collateral estoppel or es-toppel by judgment that the issue which is sought to be foreclosed by the result of earlier litigation has been decided in an action ‘between’ the parties in the later case. Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977); Zurich Ins. Co. v. Bartlett, 352 So.2d 921, 922 (Fla.2d DCA 1977), cert. denied, 359 So.2d 1210 (Fla.1978). This means, as the court said in Rader v. Otis Elevator Co., 327 So.2d 857, 858 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 602 (Fla.1976), that ‘estoppel must be predicated on a judgment between adversaries.’ [emphasis in Southern Bell]. It is obvious that this element did not exist under the facts of this case. While Robinson and Southern Bell were aligned together in the county court as adversaries of Suarez, they were in no sense adversaries of each other. Hence, we hold, in accordance with the overwhelming weight of authority on the identical question, that the outcome of the earlier case has no effect on the present one. . .. ” (footnotes and concluding citations omitted).

Similarly, while Stephen and Lawrence were aligned in the federal court as adversaries of the United States Government, they were in no sense adversaries of each other. Therefore, as in Robinson, the outcome of the earlier litigation has no effect on the present case.

We add two further comments. First, the argument made in the dissent that a party should not be able to controvert a judicially determined fact does not distinguish this case from Robinson, but, instead, is an argument to do away with the rule requiring that that fact be determined between adversaries. This we are bound not to do. Second, the dissenter is concerned that a refusal to apply the doctrine of collateral estoppel would permit the defendant to point to an “empty chair,” contend that the Government driver’s negligence caused the accident, and possibly obtain a result inconsistent with the result in the federal case. This, again, is simply an argument against the rule in Robinson. It is true that a verdict for Stephen will mean that Lawrence recovers from neither driver. While that may disturb the dissenter, we think that is a far better result than relieving Lawrence Gonzalez of the burden of now proving his brother’s negligence when Lawrence’s testimony in the federal lawsuit, obviously designed to further his and Stephen’s unsuccessful action against the Government, was that Stephen was totally free from fault. If Lawrence has tears, they are those of the crocodile. Reversed and remanded.

FERGUSON, Judge

(dissenting).

The majority refuses to apply collateral estoppel to the facts of this case, holding that the doctrine requires that there be a mutuality of parties in both actions, and further that the parties in both actions must be adversaries. This seems to be the law in Florida as developed in the District Courts of Appeal. However, in this case the law has been mechanically misapplied and perfectly illustrates the proverbial collision of reason and an abstract rule. I dissent because I believe reason should prevail.

Both Stephen and Lawrence brought suit against the United States government in federal court. The federal court, after an extensive finding of facts held that as between the parties, Stephen and Lawrence as plaintiffs and the United States government as defendant, “the plaintiffs have failed to meet their burden of demonstrad ing by a greater weight of the evidence that [United States government] was guilty of negligence which caused the accident. ..

The majority holds that the doctrine of collateral estoppel doesn’t apply and Stephen should be allowed to assert as a defense in the suit brought against him in the State court by Lawrence, that the negligence of Putnam, operator of the government vehicle, caused the accident — precisely what has been judicially determined to the contrary in a court of competent jurisdiction where Stephen and the United States government were adversaries. The unreasonable conclusion that is now a distinct possibility is that Lawrence, who was injured while riding as a passenger in a vehicle operated by Stephen where the accident was the result of the negligence of either Stephen or Putnam as operator of the government vehicle, will not recover as against Stephen or the United States government. The majority is not troubled by the prospect of inconsistent judgments or the fact that the issue of government liability was fully litigated between adverse parties, but concludes it more important that Lawrence, for his presumed crocodilian motives in filing suit against the United States government in the first action, should take nothing by this second action.

The facts of those cases which gave rise to Florida’s rule that collateral estoppel may be asserted only by parties who were adversaries of each other in a prior action, upon careful analysis, are different from the facts of this case. The concern of those cases and the rationale for limiting the use of collateral estoppel to adverse parties is that fairness requires both parties in the second action be bound by the judgment adverse to the party who fully litigated the issue in a prior suit. See IB Moore’s Federal Practice, § 0.412[1] (1980 ed.); Parklane Hosiery Company v. Shore, supra at note 1, and Annotation at 58 L.Ed.2d 938. See also Annot., 31 A.L.R.3d, supra at note 1. The rule in Mobil Oil Corporation v. Shevin, 354 So.2d 372 (Fla.1977) as stated by the majority is that a party who asserts the doctrine of collateral estoppel must show that the issue was fully litigated between the parties. Both Lawrence and Stephen were parties in the prior suit, both were adverse to the United States government, both fully litigated the issue of government liability and, unlike the situation in the cases cited by the majority, both are bound by the judicial determination of non-liability of the government for the accident. (B and C sue A, held: A not negligent to B or C; B sues C asserting that C should be estopped from claiming that A was the cause of injury to B). Lawrence is bound by the judicial determination that the government is not liable for the accident. Stephen is bound by the judicial determination that the government is not liable for the accident. Federal court records will forever show that the government was not the proximate cause of either Lawrence’s or Stephen’s injuries. Yet, the rule of this case is that Lawrence alone is bound and that Stephen may claim in a court of competent jurisdiction that the government did cause Lawrence’s injuries.

No such rule emerges from the cases cited by the majority. In Southern Bell Telephone & Telegraph Company v. Robinson, 389 So.2d 1084 (Fla.3d DCA 1980), the plaintiff does not attempt to assert the determination of liability as between himself and a party who was adverse to himself and a co-plaintiff in a prior action. The plaintiff in Southern Bell, supra, could not on the grounds of estoppel assert that the liability of a prior co-defendant to a prior plaintiff proves liability of that co-defendant to himself. (B sues A and C obtaining judgment against C based on negligence, A sues C claiming damages arising from same acts of negligence, held: A may not assert that C’s liability to B conclusively proves C’s liability to A). Similarly in Zurich Insurance Company v. Bartlett, 352 So.2d 921 (Fla.2d DCA 1977), the party does not attempt to assert a prior determination of liability with respect to himself and a prior adverse party who was also adverse to the defendant in the second suit. (B sues A obtaining judgment that A is negligent, C sues A for damage arising from same act of negligence, held: C, a non-party to the prior action, may not assert A’s negligence to B as proof that A was negligent to C). In Rader v. Otis Elevator Company, 327 So.2d 857 (Fla. 1st DCA 1976), cert. denied, 336 So.2d 602 (Fla.1976), A sues B, B files third-party suit against C, B settles with A but proceeds with suit against C. In a second suit, A sues C, held: C may not assert A’s claim is barred by prior determination that C is not liable to B where C was not adverse to A in prior litigation and the issue of C’s duty to A was not actually litigated.

As a general rule parties to a judgment are not bound by it in a subsequent controversy between each other unless they were adversaries in the original action. The courts have recognized exceptions to the requirement for adversity. See Moore, supra at § 0.411[2]. One such exception is that where a finding of fact is made in the first suit which is an essential element in a claim or action subsequently brought by one former party against the other, estoppel will apply as to that finding of fact. National Bondholders Corp. v. Seaboard Citizens National Bank, 110 F.2d 138 (4th Cir. 1940); Livesay Industries, Inc. v. Livesay Window Company, 202 F.2d 378 (5th Cir. 1953), cert. denied, 346 U.S. 855, 74 S.Ct. 70, 98 L.Ed. 369 (1953).

The ruling in Diamond Shamrock Corp. v. Lumbermens Mutual Casualty Company, 416 F.2d 707 (7th Cir. 1969), is persuasive authority for considering this case an exception to the general rule. Diamond Shamrock, as an insured, and Fireman’s Mutual Insurance Company, joined as co-plaintiffs in a declaratory judgment action against Lumbermens Mutual Casualty Company. The issue was whether Diamond’s casualty loss was the result of a fire — in which case loss would fall on Fireman’s, or was a result of an explosion — in which case the loss would fall on Lumbermens. Lum-bermens contended that the determination of that issue would be only advisory and not dispositive of the controversy since Fireman’s and Diamond were non-adversary co-plaintiffs and an adjudication adverse to Lumbermens would not be binding to Fireman’s. The court disagreed holding that collateral estoppel would apply where a material fact or issue has been determined in a prior litigation between parties, even though the parties were not “arrayed as adversaries in the prior litigation.”

By way of defense, Stephen Gonzalez has made the issue of the government’s liability an element of this case, an issue which was thoroughly litigated to a conclusion adverse to himself in the prior litigation. The exception to the adversity requirement fits even more comfortably on the facts of this case. The purpose of the collateral estoppel doctrine is to prevent relitigation of issues as between parties and to hasten the business of settling disputes. The hypertechni-cality which is espoused by the majority holding will tend to encourage gamesmanship, increase the likelihood of unfair result, and increase judicial labor.

It is not disputed that only Lawrence, Stephen, or the United States government could conceivably be responsible for the accident. The trial court concluded independently that Lawrence had met his burden of proving Stephen negligent because on the evidence before it (1) the accident was avoidable, (2) Lawrence did not contribute to his own injuries, and (3) as a matter of law previously determined, the United States government was not the proximate cause of Lawrence’s or Stephen’s damages. Stephen having failed to raise any questions of fact or law as to his negligence, the court then determined necessarily that there was no material question of fact or law that Stephen was negligent. The trial court ordered the cause to proceed to trial on the issues of causation and damages only.

The application of a symmetrical formula is not going to automatically insure a proper ruling on estoppel pleas. In the end, the decision will necessarily rest on the trial court’s sense of justice and equity. Blonder-Tongue Laboratories, Inc., supra. I would affirm the ruling of the trial court as both reasonable and legally sound.

      . We do not agree with the dissenter’s view that Diamond Shamrock Corporation v. Lumbermens Mutual Casualty Company, 416 F.2d 707 (7th Cir. 1969), is “persuasive authority for considering this case an exception to the general rule.” In that action, Fireman’s claimed that Lumbermens, not Fireman’s, was liable to Diamond (Fireman’s co-plaintiff). In contrast, Stephen Gonzalez claimed in the federal court that the defendant, United States, was liable to him and did not assert his non-liability to his co-plaintiff, Lawrence.

      . Indeed, the present case may dramatically demonstrate the wisdom of the requirement that the parties be adversaries. Given Lawrence’s earlier testimony exculpating Stephen from negligence, had Lawrence been Stephen’s adversary, Stephen would likely have been found not liable to Lawrence.

      . “A cruel crafty Crocodile,
      Which in false grief hiding his harmful guile, Doth weep full sore, and sheddeth tender tears.”
      E. Spenser, The Faerie Queene I, xviii (1590).

      . The requirement has been much criticized and rejected by the federal courts and several other states. See footnote eight in Parkiane

        Hosiery Company v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) citing Justice Traynor for a unanimous California supreme court in Bernhard v. Bank of America National Trust & Savings Association, 19 Cal.2d 807, 812, 122 P.2d 892, 895 (1942):
      No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend.
      For the federal rule, see Parklane Hosiery Company v. Shore, and Annot., 58 L.Ed.2d 938, supra, (permitting offensive use by plaintiff to bar defense); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (permitting defensive use by defendant not party to prior action). See also Bernhard v. Bank of American National Trust and Savings Association, supra, (Cal. rule permitting defensive use). For other states rejecting or retaining the mutuality requirement see Annot., 31 A.L.R.3d 1044 (1970). Florida has rejected the modem trend and has declined to eliminate the mutuality of estoppel requirement for either defensive or offensive use. See, e.g., Newport Division, Tenneco Chemicals, Inc. v. Thompson, 330 So.2d 826 (Fla. 1st DCA 1976). Florida courts have, however, recognized certain exceptions to the rigid application of its role that collateral estoppel lies only between parties who were adverse to each other in a prior action. These exceptions involve derivative actions where the right of a second party is controlled by a determination of liability or non-liability of the defendant to the primary party who is not a party to the second action. For example, a party suing for loss of consortium is bound by the judicial determination in the primary action as to the question of liability. Davis v. Asbell, 328 So.2d 204 (Fla. 1st DCA 1976). In a wrongful death action a determination of liability or non-liability of the defendant may be determinative in a subsequent and separate wrongful death action by the same beneficiary against the same defendant, Seaboard Coast Line Railroad v. Cox, 338 So.2d 190 (Fla.1976), and a determination of non-liability against the decedent is determinative of the beneficiary’s ability to bring the action. Epps v. Railway Express Agency, 40 So.2d 131 (Fla.1949); Collins v. Hall, 117 Fla. 282, 157 So. 646 (1934). Similarly, in an indemnity action, a prior judgment that a party was negligent will bar that party’s action for indemnity against a third party, not part of the original action. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979); Allstate Insurance Company v. A. D. H., Inc., 397 So.2d 928 (Fla.3d DCA 1981).

      . My disagreement with the majority in this case is not with the requirement of mutuality which is a judge-made doctrine ordaining that unless both parties (or their privies) in a second action are bound by a judgment in a previous case, neither party (nor his privy) in the second action may use the prior judgment as determinative of an issue in the second action. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra at note 1. My disagreement is with the majority’s application of the requirement of adverseness so as (1) to destroy mutuality by binding only one party to a prior judgment entered against both, and (2) to permit the unbound party — by the majority’s reasoning — to assert as a fact, not a prior judgment, but something contrary to that prior judgment.

      . In response to footnote 1 of the majority opinion, as to that single defensive issue where I think collateral estoppel ought to apply, Stephen Gonzalez and the United States government were adversaries. Additionally, the federal court rejected the testimony of both Lawrence and Stephen Gonzalez that their vehicle was traveling only 35 m. p. h. and found, based on the physical evidence, that Stephen operated his vehicle “in excess of 60 m. p. h.” Thus, Lawrence’s earlier testimony, contrary to what is stated in the footnote, contributed as much toward exculpating Stephen as did Stephen’s testimony — nothing.

      . Decided before Blonder-Tongue Laboratories, Inc., supra, in which the United States Supreme Court overruled Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949 (1936) (recognizing mutuality as a prerequisite to collateral estoppel).

      . These findings of fact by the trial court were not challenged by Lawrence in the trial court, and, more importantly, were not raised as issues by this appeal. The sole issue on appeal is the legal question of whether the doctrine of collateral estoppel should apply to estop the defendant from asserting the negligence of the United States government as a defense.


text:
    MERRILL LYNCH PIERCE FENNER & SMITH INC., Appellant, v. Helen Echo HAYDU, Appellee.
    No. 81-2612.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Rehearing Denied May 17, 1982.
    Walton, Lantaff, Schroeder & Carson and Patricia E. Cowart, Miami, for appellant.
    Bartel & Shuford and Bill Shuford, Jr., Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   BASKIN, Judge.

In its Order Striking Pleadings of Defendant and Entering Default, the trial court found:

1.The Defendant, MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED, has willfully and flagrantly violated and refused to comply with the Florida Rules of Civil Procedure, as they pertain to discovery, and with Orders of the trial court compelling discovery. For example, in the hearing before this Court, conducted on November 12, 1981, Defendant’s counsel admitted and conceded that not a single document, paper or exhibit has ever been delivered to the Plaintiff or her counsel, pursuant to the Request for Production of Documents of April 11, 1979, despite Orders from the Court compelling production of documents, dated July 2, 1979, November 7, 1979, December 14, 1979 and August 12,1981. With regard to the latest Order from the trial court compelling production, dated August 12,1981, not only was production not made, but Defendant did not request an extension of time for the making of production. Excusable neglect has not been demonstrated by the Defendant. Similarly, the Defendant failed to answer Interrogatories when instructed and ordered by the Court to do so.
2. Plaintiff has been prejudiced, in terms of preparation of the liability portion of her case, by virtue of Defendant’s willful refusal to provide discovery.
3. Accordingly, Plaintiff’s Motion for Sanctions be and the same is hereby granted. The pleadings, including the Answer and Affirmative Defenses, of the Defendant, are stricken, and default is hereby entered against the Defendant, MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED.
4. Liability having been determined in favor of the Plaintiff, by virtue of the default provided for herein, this action shall proceed to trial solely on the question of damages, as scheduled on the Court’s two-week jury trial calendar commencing March 15, 1982.

We affirm.

HENDRY, J., dissents.


text:
    William C. SMATT, Appellant, v. HOWARD W. WEHNES, JR. & CO., INC., a Florida corporation, Appellee.
    No. 82-34.
    District Court of Appeal of Florida, Third District.
    April 13, 1982.
    Rehearing Denied May 10, 1982.
    Javits & Karp and David A. Karp, Miami, for appellant.
    Levine, Reckson, Reed & Geiger and Allen P. Reed, Miami, for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

William Smatt appeals from the trial court’s order denying his motion to quash service of process. The return of service indicated substitute service upon Anne Castro/roommate. The unrebutted evidence before the trial court was that Mr. Smatt was not a resident at the address where substitute service was attempted. Nor was Ms. Castro (a temporary domestic employee who was not a member of the household) Mr. Smatt’s roommate. Plaintiff below, ap-pellee here, offered no evidence at the hearing on motion to quash.

Given the undisputed evidence before the trial court, we hold there was no effective service within the meaning of Section 48.-031, Florida Statutes (1979). The trial court erred in not granting the motion to quash service of process. Tamayo v. Caballero, 413 So.2d 78 (Fla.3d DCA 1982); Hauser v. Schiff, 341 So.2d 531 (Fla.3d DCA 1977).

Accordingly, the order under review is reversed and this cause is remanded with directions to the trial court to enter an order quashing service of process.

Reversed and remanded with directions.


author: DELL, Judge.

text:
    Anthony PRESLEY a/k/a Jim Presley, Appellant, v. STATE of Florida, Appellee.
    No. 80-2094.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearing Denied May 19, 1982.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   DELL, Judge.

Appellant was charged by information and convicted of Count I, aggravated assault as a lesser included offense of the charge of attempted murder; Count II, robbery; Count III, battery of a law enforcement officer; and Count IV, resisting arrest with violence. Appellant contends he was improperly convicted and sentenced twice for the same offense in that Count IV duplicates Counts I and III. Appellant further contends that the trial court erred in refusing to sentence him as a youthful offender.

We have examined the allegations of the information and the evidence and hold that Count IV is a lesser included offense of Counts I and III. Brown v. State, 206 So.2d 377 (Fla.1968). Although the conviction was proper, the sentence must be vacated. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).

Appellant does not qualify for mandatory youthful offender treatment. State v. Goodson, 403 So.2d 1337 (Fla.1981). The trial judge did not abuse his discretion by sentencing appellant as an adult.

The sentence for Count IV, resisting arrest with violence, is vacated. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

DOWNEY and GLICKSTEIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Shannon P. O’DELL, Appellee.
    No. 81-395.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.
    Rehearing Denied May 12, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Joseph K. Still, Jr., of Burford & Still, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellee was charged by information with trafficking in cocaine in violation of section 893.135, Florida Statutes (1979). He filed a motion to dismiss, alleging the statute was unconstitutional, which was denied. Subsequent to this denial, appellee was convicted of trafficking in cocaine in a non-jury trial. Prior to judgment or sentencing, appellee filed a Motion to Reconsider Defendant’s Motions to Dismiss. He asserted the circuit court had found section 893.135 unconstitutional in other cases and that he was entitled to the same ruling. This second motion was granted.

The trial court erred in granting appel-lee’s motion. State v. Benitez, 395 So.2d 514 (Fla.1981). Accordingly, the order of dismissal is reversed and the cause remanded for reinstatement of the finding of guilt and for such further proceedings as the trial court deems appropriate.

REVERSED AND REMANDED.

DOWNEY, ANSTEAD and GLICK-STEIN, JJ., concur.


text:
    RINKER MATERIALS CORPORATION and Liberty Mutual Insurance Company, Appellants, v. Johnnie M. HARRIS, Appellee.
    No. AD-224.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    Rehearing Denied May 11, 1982.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellants.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellee.
   PER CURIAM.

The employer/carrier appeals an order of the deputy commissioner awarding wage loss benefits, penalties, and attorney’s fees. We affirm in part and reverse in part.

Only one of the three issues raised by the employer/carrier requires discussion. Claimant suffered a compensable industrial accident on October 23, 1979. At the close of a hearing held on his claim for benefits, the deputy commissioner awarded attorney’s fees finding only that the services rendered by claimant’s attorney were reasonable. This was error. The award of attorney’s fees for services rendered in connection with a claim arising out of an accident which occurred on or after August 1, 1979, is governed by the provisions of § 440.34(2), Florida Statutes (1979). Laws of Florida, Chapter 79-312, Section 15.

The claimant did not file a claim for medical benefits only, nor did the employer/carrier deny that an injury occurred for which compensation benefits were payable. Accordingly, neither Section 440.34(2)(a), nor Section 440.34(2)(c) would justify the award of attorney’s fees in this case.

Claimant argues that the award of attorney’s fees may be justified under Section 440.34(2)(b), Florida Statutes (1979), in that the conduct of the employer/earrier amounted to the kind of passive disapproval and rejection of claims on mere technical matters of form which was condemned in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). However, the deputy commissioner did not make a finding of bad faith on the part of the employer/earrier as required by Section 440.34(2)(b), nor was the question of entitlement to attorney’s fees on the basis of bad faith specifically litigated as a separate issue with factual evidence presented going directly to that issue as that subsection requires. See, Embry Riddle Aeronautical U. v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981).

Accordingly, the order of the deputy commissioner is affirmed except as to the award of attorney’s fees. The cause is remanded, and the deputy commissioner is directed to conduct an evidentiary hearing on the question of claimant’s entitlement to attorney’s fees.

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


text:
    BOCA RATON PUBLISHING COMPANY, INC., Appellant, v. DEPARTMENT OF REVENUE, and Gerald A. Lewis, Comptroller of the State of Florida, Appellees.
    No. AE-186.
    District Court of Appeal of Florida, First District.
    April 14, 1982.
    James A. Rich, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appel-lees.
   PER CURIAM.

The appellant distributes four weekly publications, free of charge, which he seeks to have exempted from sales tax under Section 212.08(6), Florida Statutes. It is the appellant’s position that it is the clear legislative intent to exempt newspapers, and the word newspaper is unambiguous. Therefore, Rule 12A-1.08, Florida Administrative Code, is invalid insofar as it attempts to restrict newspapers to those publications which are sold and not given to the reader free of charge, and have been entered, or qualified to be admitted and entered, as second class mail matter.

We disagree with appellant’s fundamental premise that the word newspaper is unambiguous. Having reached this determination, we next conclude that the administrative construction of the statute is not clearly erroneous or unauthorized. Sections 212.17, and 212.18, Florida Statutes, confer rule making power on the Department of Revenue, and it is settled law in Florida that the administrative construction of a statute by those charged with its enforcement and interpretation is entitled to great weight. Green v. Wisner, 119 So.2d 814, 816 (Fla.2d DCA 1960) and Odham v. Foremost Dairies, Inc., 128 So.2d 586, 592 (Fla.1961). Having determined that the promulgation of Rule 12A-1.08 was a valid exercise of the agency’s rule making power, it is the opinion of this Court that the judgment below should be AFFIRMED.

McCORD, ERVIN and SHAW, JJ., concur.


author: McCORD, Judge.

text:
    ST. JOE PAPER COMPANY, Appellant, v. Hubert R. ADKINSON, Property Appraiser of Walton County, Florida; Jack Little, Tax Collector of Walton County, Florida; Bob Anderson, Lawton Mathews, Hughie Infinger, Milford Bass and Johnnie Moore, as members of the Board of Tax Adjustment of Walton County, Florida; and J. Ed Straughn, Director, Department of Revenue, State of Florida, Appellees.
    No. AH-111.
    District Court of Appeal of Florida, First District.
    April 14, 1982.

      Fred H. Kent, Jr., of Kent, Watts, Dur-den, Kent & Mickler, Jacksonville, for appellant.
    George Ralph Miller, Defuniak, and Jim Smith, Atty. Gen., and Joseph C. Melli-champ, III, Asst. Atty. Gen., for appellees.
   McCORD, Judge.

This is an appeal from a nonfinal order entered by the trial court upon remand following our opinion in St. Joe Paper Company v. Adkinson, 400 So.2d 983 (Fla. 1st DCA 1981). The nonfinal order does not qualify for review under Florida Rule of Appellate Procedure 9.130. We treat it as a petition for common law writ of certiorari.

The order entered by the trial court on remand finds that as a result of the appraisal testimony excluded by this Court’s mandate, there is insufficient evidence upon which to render a competent decision as to the assessed value of the properties in question. The trial court further finds that justice will best be served by allowing both plaintiff and defendants to present additional evidence on the assessed value of the property in question, and it authorizes the parties to submit such additional evidence. The excluded testimony referred to in the trial court’s order was the appraisal testimony of the two expert witnesses of appel-lee property appraiser and part of the testimony of one expert witness of appellant. The excluded testimony related only to the gulf-front property and had no relation to the agricultural land values.

Upon reversal and remand with general directions for further proceedings, the trial judge has broad discretion in handling or directing the course of the cause thereafter. Lucom v. Potter, 131 So.2d 724 (Fla.1961); The City of Pensacola v. Capital Realty Holding Co., Inc. (Fla. 1st DCA 1982), Case No. AF-45, opinion filed March 29, 1982. Insofar as- the trial court’s order reopens the proceedings below for further evidence as to the value of the gulf-front property, we find no departure from the essential requirements of law. While the trial court may not intend to allow additional testimony as to property values other than of the gulf-front property, it appears that such additional evidence could be presented under the broad terms of the order. If allowed, such would be a departure from the essential requirements of law. Prior to the final judgment which was the subject matter of the previous appeal, each party had, of course, closed its case, and our opinion did not require deletion of any of the evidence other than that relating to value of the gulf-front property. Thus, the order is excessively broad in its terms and must be limited only to the gulf-front property.

Certiorari is granted, and the order appealed from is quashed.

ROBERT P. SMITH, Jr., C. J., and BOOTH, J., concur.


text:
    Jimmy Lee ASHLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-670.
    District Court of Appeal of Florida, Third District.
    April 20, 1982.
    Jimmy Lee Ashley, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Wilma SULLIVAN, Supervisor of Elections, Leon County, Appellant, v. DIVISION OF ELECTIONS, State of Florida, DEPARTMENT OF STATE, and George Firestone as Secretary of State, et al., Appellees.
    No. YY-239.
    District Court of Appeal of Florida, First District.
    April 21, 1982.
    Rehearing Denied May 14, 1982.
    Stephen Marc Slepin of Slepin, Slepin & Lambert, Tallahassee, for appellant.
    James V. Antista, Asst. Gen. Counsel, Dept, of State, Tallahassee, for appellees.
   PER CURIAM.

Appellant seeks review of an advisory opinion issued by the Division of Elections, Department of State, in accordance with section 106.23(2), Florida Statutes (1981). We have examined our jurisdictional grant under article V, section 4(b), Florida Constitution, section 120.68, Florida Statutes (1981), and the pertinent provisions of chapter 106, Florida Statutes (1981), and determined that we are without subject matter jurisdiction. Accordingly, the appeal is DISMISSED.

SHAW, WENTWORTH and THOMPSON, JJ., concur.


author: BOARDMAN, Judge.

text:
    Scott M. RICH, Appellant, v. STATE of Florida, Appellee.
    No. 81-1293.
    District Court of Appeal of Florida, Second District.
    April 23, 1982.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Scott M. Rich appeals his conviction and sentence for aiding and abetting in a grand theft. We reverse.

This is a case in which the conviction is based solely on circumstantial evidence. The facts are that between noon and one o’clock on February 3, 1981, Beatrice Landes’ purse, containing approximately $214, was forcibly pulled off her arm by Sammie Dunbar while she was locking her car in the Town Plaza Center in St. Peters-burg. Ms. Landes and several others chased Dunbar as he ran into the Meadow-lawn Middle School playground, located behind the plaza. William Going saw Dunbar run into the playground. He drove toward the back of the plaza in an attempt to intercept Dunbar, but could not find him when he reached that area. Instead, he encountered a Ford Pinto occupied by two white males parked nearby. He recognized the passenger to be appellant. The Pinto then backed out and drove away and out of his view.

About this time, Ronald Henderson, assistant principal at Meadowlawn Middle School, was standing in the school parking lot supervising children when a Pinto occupied by two white males raced through the parking lot. The car proceeded into the playground and shortly thereafter returned through the parking lot at a high rate of speed on its way off school property. Henderson jotted down the car’s license number and called the police.

Sergeant John Siegel of the St. Peters-burg Police Department received a dispatch that a purse had been snatched at the plaza and that the perpetrator had run towards the school. After failing to locate anyone on foot in that area, he received another dispatch that a Pinto with two occupants had driven recklessly through the school parking lot. Several minutes later he spotted two men trying to dislodge a Pinto mired in a field between the plaza and an interstate highway. He approached the two. Appellant identified himself and stated that he was the driver. The other man identified himself as Bradford McEntag-gart. When asked what they were doing there, they replied to the effect that they were “[Oust driving around” or “[j]ust looking for girls.”

Deputy Sheriff Larry Roach led the investigation of the strong-arm robbery. He met Siegel in the field with appellant and McEntaggart. McEntaggart eventually gave Roach a statement. Appellant was later charged with aiding and abetting in the robbery. McEntaggart was not charged.

At trial, McEntaggart testified for the state. Neither appellant nor Dunbar testified. McEntaggart stated that on the morning of February 3, he and appellant borrowed the Pinto from appellant’s girl friend. They drove around for awhile and later met Dunbar at an apartment. The three then cruised around. Appellant was driving; Dunbar was in the front; and McEntaggart was in the back. McEntag-gart caught “parts” of “a vague conversation” between appellant and Dunbar in which Dunbar said he was going to rob a bank. However, McEntaggart was “mostly listening to the radio,” which “was fairly loud,” and “wasn’t paying that much attention.” He never heard appellant say he would participate in a bank robbery. The three proceeded to a bank on 34th Street. Dunbar went inside while McEntaggart and appellant remained in the car. Dunbar did not rob the bank. After coming out he told appellant “he wanted to find a small [bank] that didn’t have any guards or nothing.” The three then drove to a motor vehicle bureau on 62nd Avenue. Appellant and McEntaggart entered the bureau while Dunbar walked into a bank to “check it out or something like that.” Dunbar did not rob this bank either.

Upon meeting back at the car, Dunbar told appellant to follow two ladies who had entered a blue car. Dunbar said they had come out of the bank with some money and that he was going to rob one of them. Appellant followed the ladies’ car to the plaza, but never commented on Dunbar’s remark. When they arrived, Dunbar got out of the car. On direct examination, McEntaggart testified that Dunbar said he was going “to try to get some money” from the ladies. On cross-examination, however, he stated that Dunbar just told them to “[d]rop me off.”

Appellant and McEntaggart immediately drove off toward the school. On direct examination, McEntaggart asserted that he “guess[ed]” that they turned onto school property in order to look for Dunbar. On cross-examination, however, he explained that they entered the school property to cruise around and “drive around in circles” as they had been doing throughout the day. He added that appellant never told him that they were driving onto school property to meet Dunbar.

At the close of the state’s case, appellant’s motion for a directed verdict was denied. We hold that the trial court should have granted the motion and that the failure to do so constituted reversible error.

The state failed to prove that appellant had the specific intent to participate as an aider and abettor in the strong-arm robbery of Ms. Landes. In order to convict someone of aiding and abetting in a crime as a principal in the first degree, the state must prove that that individual aided or abetted in the commission of the crime and had the specific intent to participate in the crime. Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); Beasley v. State, 360 So.2d 1275 (Fla. 4th DCA 1978).

The state failed to carry its burden here. It merely demonstrated that appellant followed a car from the bank to the plaza, dropped off Dunbar, proceeded to the playground area behind the plaza, and shortly thereafter got stuck in a nearby field. However, appellant had been cruising and joy riding in the Pinto with McEn-taggart throughout the day. He had driven to two separate banks with Dunbar, and no crime was committed on either occasion. Moreover, he had not been present at the scene of the strong-arm robbery. In addition, there was no evidence that he rendezvoused with Dunbar after the robbery. Perhaps most important, McEntaggart testified that he never heard appellant make any statement concerning his intention to participate in the robbery. Thus, there is a total absence of evidence on this point.

In sum, the circumstantial evidence was insufficient to conclusively establish that appellant had the specific intent to participate as an aider and abettor in the crime charged. See Pack.

Accordingly, appellant’s judgment and sentence is REVERSED and the cause REMANDED with directions to discharge appellant.

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