author: PER CURIAM. THOMPSON, Judge,

text:
    Jo Ann HALL, Petitioner, v. The Honorable Thomas D. OAKLEY, Circuit Court Judge, Division N, Duval County, Florida, Respondent.
    No. AG-152.
    District Court of Appeal of Florida, First District.
    Jan. 18, 1982.
    Rehearing Denied Feb. 23, 1982.

      Louis O. Frost, Jr., Public Defender, James T. Miller and Brian D. Morrissey, Asst. Public Defenders, for petitioner.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Jo Ann Hall was adjudicated guilty, after a jury trial, of the charge of petit theft. § 812.014(2)(c), Florida Statutes. Her conviction in the Duval County Court was affirmed by the Circuit Court without opinion. She now petitions this court for a writ of common law certiorari. We have jurisdiction. Art. V, § 4(b)(3), Fla.Const. (1972); Fla.R.App.P. 9.030(b)(2)(B).

The operative facts to this appeal are essentially undisputed. In support of its case, the state presented the testimony of only one witness, the department store security guard who arrested the petitioner. The state then rested, at which time petitioner ore tenus filed a motion in limine to prevent the state from impeaching the petitioner, should she testify, by the use of a five-year old petit theft conviction. The trial court denied the motion. The petitioner then elected not to take the stand but did present several witnesses, other store employees, on her own behalf.

The first question with which we must deal in reviewing this case is whether the alleged error has been preserved for certiorari review. We note that, as a general proposition, where the trial court deprives a person of a fundamental right, such action must be deemed reversible and prejudicial error subject to certiorari review. See Coggins v. State, 101 So.2d 400 (Fla.3d DCA 1958). In all criminal prosecutions the accused has the right to be heard in person, by counsel, or both. Art. I, § 16, Fla.Const. This right is a mandatory organic rule of procedure in all prosecutions in all courts of this state. Deeb v. State, 131 Fla. 362, 179 So. 894 (1937).. “[I]t is basic to a defendant’s ‘right to be heard’ to be able to testify as to whether he did or did not commit the crime for which he was charged.” Moore v. State, 276 So.2d 504 (Fla.2d DCA 1973). In view of these fundamental and long-accepted constitutional principles, we conclude that the petitioner’s argument is suited for review by certiorari.

It might also be argued, although the state has not done so, that the petitioner’s argument has simply not been properly preserved for appellate review. Our sister court has recently addressed just such a similar situation in a civil case and has held:

If a motion in limine is overruled, a judgment will not be reversed unless the questions of evidence were in fact asked or offered. If they were asked or offered, then objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal.

Swan v. Florida Farm Bureau Insurance, 404 So.2d 802 (Fla. 5th DCA 1981), quoting Hartford Accident Indemnity Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963). Swan and McCardell, however, are distinguishable on several grounds. First, we are dealing with a criminal case in which the petitioner’s right to testify on her own behalf was conditioned on acceptance of the trial court’s evidentiary ruling. Inasmuch as the right to testify on one’s behalf is a fundamental right (See Moore v. State, supra), we conclude against requiring that a defendant must testify in order to preserve his or her argument for appellate review. The United States Circuit Courts which have considered the issue have held that the failure to testify does not moot the issue of the admissibility of prior convictions for impeachment purposes. See, e.g., United States v. Fearwell, 595 F.2d 771 (D.C.Cir. 1978); United States v. Langston, 576 F.2d 1138 (5th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 324, 58 L.Ed. 327 (1978).

Swan can also be distinguished on its facts. In Swan, the Fifth District Court of Appeal observed:

A trial judge can only become aware of a party’s objection to specific testimony or a line of questioning if a proper objection is made at the time it is offered. The judge deserves the opportunity to rule on the evidence in light of what is happening, the evidence previously admitted and the specific grounds for the objection. Having previously overruled the motion in limine, he might now sustain the objection if it is made, but he cannot be left to guess that a generally phrased pre-trial objection is still valid in the shifting pattern of the actual trial.

Id. at 803. In this case, however, we are dealing not with a pre-trial motion but with a motion made after the state had rested its case and before the defense put on its own witnesses. Hence, a proper and timely objection was made by the petitioner at the time she sought to offer evidence on her own behalf. As such, petitioner’s motion was not a pre-trial speculative maneuver, but, in fact, was a concrete, immediate, and timely objection to the state’s proposed tactics. In consideration of these facts and the importance which attaches to the right to testify on one’s own behalf, we reach the conclusion that this issue has been properly and timely preserved for our review.

We now turn to the merits of this cause. Prior to adoption of the new evidence code, a witness could be impeached with evidence of a conviction of any crime, excluding minor offenses such as traffic infractions. See Hendrick v. Strazzula, 135 So.2d 1 (Fla.1961). This position was consonant with § 90.610(1), Florida Statutes (1977), as it read at that time:

A party may attack the credibility of any witness, including an accused, by evidence that the witness had been convicted of a crime involving dishonesty or false statement, with the following exceptions ...

See Dodson v. State, 356 So.2d 878 (Fla.3d DCA 1978). In discussing this statutory provision, Ehrhardt observed that this intent, as expressed by the Florida Legislature, differed from that expressed by the Conference Committee of the United States Congress when it approved Federal Rule of Evidence 609 and said that it intended the rule to apply only to the commission of crimes which involved some element of deceit, untruthfulness, or falsification. Ehrhardt, Florida Evidence, § 610.1, pp. 185-6 (1977).

In the next session of the Florida Legislature, however, § 90.610(1) was amended to conform identically with Federal Rule of Evidence 609:

A party may attack the credibility of any witness including the accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or false statement regardless of the punishment, with the following exceptions

§ 90.610(1), Florida Statutes (1978). Eh-rhardt takes note of this change and observes:

This amendment substantially conforms the Code to the provisions of the Federal Rule regarding the type of crimes that can be used to impeach. The drafters propose that only crimes involving dishonesty or false statement be admitted and intended that phrase be broadly interpreted. In substantially conforming the Code to Federal Rule 609 it is probable that the legislature intended to adopt an interpretation of those crimes involving dishonesty or false statement that is similar to the interpretation of the Federal Rule. Thus, the intent of the drafters, which is noted in the main text, to broadly construe those crimes involving dishonesty or false statement was probably negated by the 1978 amendment, (emphasis in original).

Ehrhardt, Florida Evidence (Supp.1980), § 610.1, at p. 44.

All the federal circuits have consistently construed Federal Rule 609 as requiring the prosecution to demonstrate that the particular conviction was based on an offense involving something more than stealth, i.e., some element of deceitfulness, untruthfulness, or falsification, before the conviction may be submitted for impeachment purposes or deemed relevant to credibility. See, e.g., United States v. Dorsey, 591 F.2d 922 (D.C.Cir.1978); United States v. Langston, supra; Government of Virgin Islands v. Toto, 529 F.2d 278 (3d Cir. 1976); United States v. Ortega, 561 F.2d 803 (9th Cir. 1977). The basic logic of these rulings is best described in the following:

By the phrase ‘dishonesty and false statement’ the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement for false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing upon the accused’s propensity to testify truthfully.

Conf.Rep.No.93-1597 to accompany H.R. 5463, P.L. 93-59.5, at p. 9, U.S.Code Cong. & Admin.News 1974, pp. 7051, 7103.

When a statute is amended, as was § 90.610(1) in 1978, we may assume in the absence of contrary indication that the legislature intended the amended statute to have a meaning different from that accorded to it before the amendment. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). Further, if a Florida statute is patterned after a federal law on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts. Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977). In light of these principles of statutory construction and the uniform construction given to Federal Rule of Evidence 609 by the federal courts, we can only conclude that the Florida Legislature intended a like interpretation for § 90.610(1), Florida Statutes (1978). Therefore, we find ourselves compelled to hold that the simple crime of petit larceny may not be used for impeachment purposes unless the prosecution has demonstrated that such crime involves some element of deceit, untruthfulness, or falsification bearing upon the defendant’s capacity to testify truthfully.

Finally, we do not think that the trial court’s mid-trial ruling can be considered harmless error, because in the absence of knowledge of what the petitioner’s testimony would have been this court is unable to apply a test for harmless error. See United States v. Fearwell, 595 F.2d at 779; United States v. Smith, 551 F.2d 348 at 366. See also Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

Petition for Certiorari GRANTED. This cause is REMANDED to the Duval County Court for further proceedings consistent with this opinion.

SHAW and WENTWORTH, JJ., concur.

THOMPSON, J., dissents with opinion.

THOMPSON, Judge,

dissenting.

I would affirm. I think petit theft is a crime involving dishonesty within the meaning of'§ 90.610, Fla.Stat., necessarily involving some trick, fraud, or false pretense.

Section 90.610, Florida Statutes, is patterned after Rule 609 of the Federal Rules of Evidence. Accordingly, as noted by the majority, it is appropriate to see how federal courts have construed Rule 609. Although such federal decisions are very persuasive, they are not binding on this Court. The federal construction must be harmonious with the spirit, policy, and intent of the Florida Legislature in order for the federal view to be adopted by a Florida court. See Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977).

Furthermore, ordinary words should be given their plain and ordinary meaning when construing a statute. State, Department of HRS v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980). Theft is the act of stealing. The common and ordinary meaning of stealing is to take dishonestly or wrongfully and secretly property belonging to another. Accordingly, I think petit theft is a crime involving dishonesty within the meaning of § 90.610, Fla.Stat. and I would AFFIRM.


source: Caselaw Access Project

author: HUBBART, Chief Judge. DANIEL S. PEARSON, Judge,

license: Public Domain

text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Manuel QUINONES, Appellee.
    No. 80-101.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Rehearing Denied Feb. 24, 1982.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and A. Blackwell Stieglitz and Henry Burnett, Miami, for appellant.
    High, Stack, Lazenby, Bender, Palahach & Lacasa and R. Scott Boundy, Miami, for appellee.
    Before HUBBART, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   HUBBART, Chief Judge.

The central question presented for review is whether an insured who obtains a judgment in his favor and against his uninsured motorist carrier in a Florida court on a policy of insurance executed by the said carrier is entitled to a reasonable attorney’s fee award in his favor. We hold that: (1) Section 627.428(1), Florida Statutes (1977), authorizes such an award, which result is not changed by the fact: (a) that the action is brought to resolve disputes between the insured and his uninsured motorist carrier over the liability of the uninsured motorist tortfeasor or the amount of damages incurred, or (b) that the insured would not have been entitled to such an award had he obtained a judgment against the uninsured motorist tortfeasor; (2) Section 627.727(6), Florida Statutes (1977), makes such an award inapplicable only in the single instance, more particularly described in the above statute, where the insured or his personal representative brings suit against his uninsured motorist carrier and the tort-feasor’s liability carrier after the former carrier has declined to approve a settlement between the insured and the latter carrier. We, accordingly, affirm the attorney’s fee award under review by this appeal.

I

The relevant facts pertaining to the above issue are not in dispute. On January 4, 1978, the insured Manuel Quinones was injured in an automobile accident involving an uninsured motorist. Quinones subsequently brought suit seeking insurance benefits for his injuries against his uninsured motorist carrier, Florida Farm Bureau Mutual Insurance Company, based on a policy of insurance executed by the said carrier. Ultimately, he obtained a final judgment in his favor and against Florida Farm in the Dade County Circuit Court. The trial court thereafter awarded Quinones attorney’s fees by separate order, from which Florida Farm appeals. We have jurisdiction to entertain this appeal. Art. V, § 4(b)(1), Fla. Const.; Fla.R.App.P. 9.130(a)(4).

II

Section 627.428(1), Florida Statutes (1977), provides as follows:

“Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured ... under a policy or contract executed by the insurer, the trial court ... shall adjudge or decree against the insurer and in favor of the insured ... a reasonable sum as fees or compensation for the insured’s ... attorney prosecuting the suit in which the recovery is had.”

The paramount criterion for an award of attorney’s fees under this statute is “the entry of a judgment on the merits against the insurer and in favor of the insured .... ” American Home Assurance Co. v. Keller Industries, 347 So.2d 767, 770 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1249 (Fla.1978). In the instant case, the insured Quinones has clearly obtained a judgment on the merits from a Florida court against his insurer and in his favor on a policy or contract executed by his insurer; he is, accordingly, entitled to an attorney’s fee award under the statute.

A

It is urged, however, by Florida Farm that there can be no award of attorney’s fees for an insured against his uninsured motorist carrier under the above statute where suit is brought, as is allegedly true here, to dispose of disputes over the liability of the uninsured tortfeasor or the amount of damages incurred. It is also urged that such an attorney’s fee award does not lie where the insured, as here, could not have obtained an award of attorney’s fees had he secured a judgment against the uninsured motorist tortfeasor. We must reject both arguments.

First, we are cited no statutory or case law which supports such novel theories and our independent research has disclosed none. We have not overlooked the cases cited to us by Florida Farm, but find them inapplicable. Second, we would have to rewrite Section 627.428(1), Florida Statutes (1977), on a wholesale basis, in our view, in order to adopt the position here urged by Florida Farm; neither this statute, nor any other, contains language which would reasonably lend itself to a construction consistent with Florida Farm’s position. We are not authorized to amend statutes under the guise of statutory construction in order to achieve results thought desirable by the court or the litigants. Vocelle v. Knight Brothers Paper Co., 118 So.2d 664, 668 (Fla. 1st DCA 1960). Our sole duty is to enforce the statute here according to its plain and unambiguous terms, a duty which we perform today by sustaining the instant attorney’s fee award. State v. Egan, 287 So.2d 1, 4 (Fla.1973); 30 Fla.Jur., “Statutes” § 223 (1974).

B

It is further urged by Florida Farm that Section 627.727(6), Florida Statutes (1977), precludes an award of attorney’s fees in this case. We cannot agree. This statute contains a lengthy provision relating to a limited type of uninsured motorist action brought by an insured after his uninsured motorist carrier has declined to approve a settlement between the insured and the tortfeasor’s liability carrier. As to that limited action, admittedly inapplicable here, the statute denies an attorney’s fee recovery for the insured. The statute provides as follows:

“If an injured person or, in the case of death, the personal representative agrees to settle a claim with a liability insurer and its insured for the limits of liability, and such settlement would not fully satisfy the claim for personal injuries or wrongful death so as to create an uninsured motorist claim against the uninsured motorist insurer, then such settlement agreement shall be submitted in writing to the uninsured motorist insurer, which shall have a period of 30 days from receipt thereof in which to agree to arbitrate the uninsured motorist claim and approve the settlement, waive its subro-gation rights against the liability insurer and its insured, and authorize the execution of a full release. If the uninsured motorist insurer does not agree within 30 days to arbitrate the uninsured motorist claim and approve the proposed settlement agreement, waive its subrogation rights against the liability insurer and its insured, and authorize the execution of a full release, the injured person or, in the case of death, the personal representative may file suit joining the liability insurer’s insured and the uninsured motorist insurer to resolve their respective liability for any damages to be awarded; however, in such action, the liability insurer’s coverage shall first be exhausted before any award may be entered against the uninsured motorist insurer, and any such award against the uninsured motorist insurer shall be excess and subject to the provisions of s.627.727(l). Any award in such action against the liability insurer’s insured shall be binding and conclusive as to the injured person and uninsured motorist insurer’s liability for damages up to its coverage limits. The provisions of s.627.428 shall not apply to any action brought pursuant to this section against the uninsured motorist insurer.”

It is true that the last sentence of the above statute makes Section 627.428, Florida Statutes (1977) [the aforementioned attorney’s fee statute in insurance cases], inapplicable to “any action brought pursuant to this section against the uninsured motorist insurer.” This sentence, however, when read in context, plainly applies to the type of action brought by an insured which has previously been described in the statute and to nothing else; otherwise, the subject matter of the statute would abruptly change in the last sentence from the narrow action previously dealt with to a broader class of uninsured motorist actions. We ought not read the statute out of context in such an unsyntactical way as we are constrained by law to give effect to the plain meaning of statutes when read in context according to the ordinary rules of usage required by English language. Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla. 1958); State ex rel. Triay v. Burr, 79 Fla. 290, 84 So. 61, 73 (1920); see also R. Dickerson, The Interpretation and Application of Statutes 23 (1975).

Moreover, the failure to use the more apt and technical term “subsection,” rather than “section” in the last sentence of the statute, cannot, in our view, change this result as the two terms are at times used interchangeably; for example, our official citation form for the instant statute employs the term “section,” when used in the text of a brief or opinion, rather than the term “subsection.” See Fla.R.App.P. 9.800. Beyond that, no other action by an insured against an uninsured motorist carrier is mentioned in any other subsection of Section 627.727, Florida Statutes (1977), so that necessarily the action referred to herein must be the action previously described in Section 627.727(6), Florida Statutes (1977). It is only in this type of action, inapplicable here, where the insured would not be entitled to an attorney’s fee award from his uninsured motorist carrier.

Ill

We have examined the other arguments raised by Florida Farm upon this appeal and find them to be without merit. The order under review is, accordingly,

Affirmed.

DANIEL S. PEARSON, Judge,

concurring.

If, as the majority suggests, the final sentence of Section 627.727, subsection (6),

“. . . The provisions of s. 627.428 shall not apply to any action brought pursuant to this section against the uninsured motorist insurer.”

is plain and unambiguous, then its language leads to a conclusion opposite that reached by the majority. I would much prefer the open admission that an ambiguity is created by the placement of this sentence within the subsection, while the very language of the sentence purports to qualify any action under the section. Since, as the majority points out, the only action under Section 627.727 is that described in subsection (6), we resolve this ambiguity by reading section as subsection. This is, indeed, the process by which the majority has reached the result, and, in my view, it is not helpful to pretend that the statute is amenable to being enforced “according to its plain and unambiguous terms.”

      . See e.g., Manufacturers Life Ins. Co. v. Cave, 295 So.2d 103 (Fla.1974); Government Employees Ins. Co. v. Graff, 327 So.2d 88 (Fla. 1st DCA 1974); see e.g., Rutkin v. State Farm Mutual Automobile Ins. Co., 195 So.2d 221 (Fla. 3d DCA 1967), aff’d, 199 So.2d 705 (Fla.1967).

      . The enacting legislation, Chapter 77-468, § 30, Laws of Florida, which added subsection (6) to Section 627.727, Florida Statutes (1977), employs the technically correct terminology of “section” and “subsection,” but this technical distinction was not carried over in the actual language of subsection (6). We regard this lapse in draftsmanship, however, as not being decisive in this case for the reasons which follow.

      . We regret that we cannot agree with our distinguished sister court, the Fourth District Court of Appeal, which has reached an opposite result on this issue. Spaulding v. American Fire & Indemnity Co., (Fla. 4th DCA 1981) (case no. 80-1328, opinion filed November 4, 1981) (6 F.L.W. 2343). It is our view that the court therein has read the last sentence of Section 627.727(6), Fla.Stat. (1977), out of context.


author: HENDRY, Judge.

text:
    Stanley B. RICHARD, Appellant, v. Leonard E. TRIESTER, Appellee.
    No. 80-1793.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 1982.
    Rehearing Denied Feb. 26, 1982.

      Richard & Richard and Dennis Alan Richard, Miami Beach, for appellant.
    Bercuson & Cahon and David Bercuson, Coral Gables, for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

Appellant, attorney for the purchasers in a real estate transaction, filed this suit to recover $14,235.46 inadvertently overpaid to the sellers at closing.

In February, 1977, five individuals entered into a contract with appellee Treister and others to purchase an office building for the sum of $825,000. A purchase money mortgage in the amount of $600,000 was arranged; the purchasers were to be credited for taxes, prepaid rent and security deposits. On the closing statement, the amount of the security deposits and taxes, $14,235.46, was subtracted from the $600,-000 mortgage figure, but no credit for that amount appeared in the purchasers’ column, effectively increasing the purchase price to $839,235.46.

Six months later the purchasers discovered the error and demanded reimbursement. Appellee offered to deduct the sum from final mortgage payments. The purchasers’ attorney, appellant, refused the offer and instituted suit to recover the overpayment. Appellant then paid the purchasers the $14,-235.46, took an assignment of their claim, and was substituted as the plaintiff. Following a non-jury trial, the court entered final judgment in appellant’s favor for $8,500, together with costs, but without interest or attorney’s fees. The court denied appellant’s motion for rehearing and appel-lee’s motion to amend. These rulings generated the appeal by Richard and a cross-appeal by Treister.

Appellant, noting that the lower court held there was a mistake of fact concerning the $14,235.46, argues that the court lacked the power to compromise the amount. He also challenges the trial court’s failure to award interest or attorney’s fees despite a specific term in the contract for sale providing for such fees in the event of litigation. We agree with appellant on each of these points.

The record confirms that a mistake occurred in the closing documents, leading the purchasers to overpay. The closing statement failed to take account of the credit for taxes and security deposits, resulting in a purchase price of $839,235.46 rather than the intended price of $825,000. Additionally, the parties’ correspondence shows that the sellers recognized their windfall and offered to reduce the final mortgage payments by that amount.

Once it was shown that appellee received an overpayment, the burden of proof was on appellee to demonstrate his right to the funds:

When the fact is proved that one has money received from another, if the recipient cannot show a legal and equitable ground for retaining it, the law creates the privity and promise necessary to sustain the action for money had and received. And it is settled that money paid under a mistake of facts may be so recovered, it being considered unconscionable that money so paid should be detained from the payor on his discovery of the mistake and demand for the money’s return.

First State Bank of Fort Meade v. Singletary, 124 Fla. 770, 169 So. 407, 408 (1936); Ferguson v. Cotler, 382 So.2d 1315, 1316 (Fla. 5th DCA 1980). Accord, Central Bank and Trust Company v. General Finance Corp., 297 F.2d 126 (5th Cir. 1961).

Appellee received an overpayment and offered no lawful or equitable reason for retaining the money. We conclude that the record amply supports the claim and the trial court properly entered judgment for appellant.

We are unable to determine, however, why the trial judge awarded only $8,500 to appellant. Having concluded that a mistake occurred, the lower court had no grounds for reducing the amount of the recovery, particularly when, as here, both sides agreed that the judgment had to be for the entire amount claimed or nothing at all. Accordingly, the judgment must be reversed and remanded to award appellant the full recovery sought.

Having ruled in the appellant’s favor, the trial judge should also have awarded appellant reasonable attorney’s fees in accordance with the contract which provided that “in connection with any litigation arising out of the contract, the prevailing party shall be entitled to recover all costs incurred including reasonable attorneys fees.”

An action to recover an overpayment at closing is plainly “litigation arising out of the contract.” See Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967) (an agreement to pay a stated consideration for property survives delivery of the deed at closing). As the prevailing party, appellant was irrefragably entitled to receive attorney’s fees. Brickell Bay Club Condominium Association, Inc. v. Forte, 397 So.2d 959 (Fla. 3d DCA 1981) (courts have no discretion to decline to enforce provisions in contracts for awards of attorney fees, any more than any other contractual provision). Accord, Kendall East Estates, Inc. v. Banks, 386 So.2d 1245 (Fla. 3d DCA 1980).

The judgment should also have included interest from the date of institution of this suit. First State Bank of Fort Meade v. Singletary, supra, (in suit to recover overpayment of interest, recovery should be for amount of overpayment with interest from date of demand or institution of suit). See generally, Parker v. Brinson Construction Co., 78 So.2d 873 (Fla.1955).

The judgment under review is reversed and remanded to the trial court with directions to enter a final judgment for appellant in the amount of $14,235.46 plus interest from the date of suit; and to assess reasonable attorney’s fees to be awarded appellant.

The cross-appeal is without merit.

Reversed and remanded with directions.


author: GLICKSTEIN, Judge.

text:
    Seymour BLAUSTEIN and Miriam Blaustein, his wife, Appellants, v. Irving WEISS and Rhea Weiss, his wife, Appellees.
    No. 80-1766.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Rehearing Denied Feb. 25, 1982.

      Ira S. Silver of Silver & Silver, Miami, and Irving B. Levenson of Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellants.
    Clifford A. Schulman of Greenberg, Trau-rig, Askew, Hoffman, Lipoff, Quentel & Wolff, P.A., Miami, for appellees.
   GLICKSTEIN, Judge.

This appeal is from a final judgment denying specific performance. We reverse.

In the spring of 1978 appellants entered into negotiations with appellees for the purchase by appellants of a condominium unit in Broward County. It took until July 24, 1978, for the parties to execute a deposit receipt contract for the unit that satisfied them. The form used by the parties is one side of one page in length and bareboned at best. It recited, inter alia, that the price was $26,500, that the transaction was subject to the purchasers’ obtaining a new mortgage from Coral Gables Federal Savings & Loan Association, and that:

It is agreed that this transaction shall be closed and the purchaser shall pay the balance of the purchase price and execute all papers necessary to be executed by him for the completion of his purchase within 30 days from delivery or tender to him of an abstract of the said property; otherwise the sum this day paid shall be retained by the seller or agent as liquidated and agreed damages, and the parties hereto shall be relieved from all obligations under this instrument.

There was no provision that time was of the essence.

On August 23, 1978, appellants’ attorney wrote appellees’ attorney, acknowledging the parties’ contract provided that he had thirty days from receipt of the abstract to close, and offering an escrow closing on a date convenient to the attorneys with the prorations to be as of August 15th. The record shows no response from appellees’ attorney.

The abstract was delivered to appellants’ attorney on August 25, 1978. On August 28th he had the abstract delivered to the savings and loan association from which appellants were obtaining their financing. On September 18,1978, appellants’ attorney sent to appellees’ attorney documents to be executed by appellees in Pennsylvania, where they resided. He requested that a warranty deed and bill of sale be executed by appellees. Neither party had set a closing date by September 23rd, which was the 30th day following delivery of the abstract.

On October 5, 1978, appellants’ attorney sent to appellees’ attorney a closing statement and his trust check for $8,402.03, which sum, when added to the proceeds appellees would receive from the lender, represented the balance due appellees. Appellants’ attorney recited that the enclosures were to be held in escrow pending delivery by appellees of a recorded deed, confirmation of the inventory of personal property being purchased and a certificate of approval executed by the condominium association. On October 10th appellants’ attorney again wrote appellees’ attorney, requesting that the executed deed be sent to the lender’s attorneys. The following day appellees’ attorney returned the trust check to appellants’ attorney with a letter reciting that appellants had not complied with the time requirements of the contract and requesting the deposit of $500 made by appellants and held by their attorney. On October 16th appellants’ attorney responded to the letter from appellees’ attorney, reciting that he had never been informed by appellees’ attorney that time was of the essence.

Generally, time should be considered of the essence if any of the following instances apply:

1. Express recital in the parties’ contract. Realty Securities Corp. v. Johnson, 93 Fla. 46, 111 So. 532 (1927); Fretwell v. Crisafulli, 185 So.2d 504 (Fla. 4th DCA 1966); National Exhibition Co. v. Ball, 139 So.2d 489 (Fla. 2d DCA 1962).

2. Where, from the nature of the subject matter or fluctuations in the value or from the terms of the agreement, the treating of time as a non-essential will produce a hardship, and delay by one party in completing or in complying with a term would necessarily subject the other party to serious injury or loss. Realty Securities, 93 Fla. 46, 111 So. 532.

3. An express notice, given by a party who is not in default to the other party who is in default, requiring the contract to be performed within a stated time, which must be a reasonable time according to the circumstances of the case. Asia v. Hiser, 38 Fla. 71, 20 So. 796 (1896); National Exhibition, 139 So.2d 489.

None of the foregoing instances apply in this case.

Appellees contend that appellants’ attorney was on notice that time was of the essence by virtue of his letter of August 23rd. We disagree and are of the opinion that the letter simply traces the language of the deposit receipt contract and does not express an acknowledgment that time is of the essence.

At oral argument, appellees’ attorney contended that the trial court was correct because of four conditions which existed. The first condition, was that no closing date had been set. The correspondence in the record from appellants’ attorney makes it clear that he was waiting for the lender to set a date for closing. Moreover, the record is void of any communication from appel-lees’ attorney in August and September designed to effect a closing or to demand a closing by a certain date. In Forbes v. Babel, 70 So.2d 371, 372 (Fla.1953), the court said:

The law is well settled that the vendor cannot take advantage of a delay in performance which he condoned or was a party to. This is true when time is the essence of the contract. The evidence shows that there was no attempt at any time to cancel or close the contract though there was discussion between the parties about closing it several times. Waiver of performance was shown and no definite time was set for closing. There is no excuse given whatever for refusal to go through with the contract though the plaintiff was ready, able and willing to do so.

Appellants’ letters of October 5th, 10th and 16th clearly comply with the point made in Siegel v. Gillman, 365 So.2d 1041, 1042 (Fla. 3d DCA 1978):

Under this land sales contract, where time was not made of the essence, the purchasers who did not close on or before the last fixed closing date, would have been entitled to close thereafter, provided a tender or demand to close would be made by the purchasers promptly, that is, within a reasonable time.

The second condition was that appellants did not tender the full purchase price with the letter of October 5th. Appellees knew in September that appellants were acquiring a new mortgage, that the lender had approved the loan and that the lender required documents from the seller prior to disbursement. The tender on October 5th was the sum above the mortgage proceeds due from appellants.

The third condition argued by appellees in support of the trial court’s ruling was that appellants had not approved the inventory of personal property in the premises being purchased. This condition, however, was primarily for the purchasers’ protection and could be waived.

The fourth and last condition was the absence of an executed consent from the condominium association. Appellees knew that an earlier consent had been obtained and that obtaining another consent was merely a routine task.

Based on the foregoing, the judgment must be reversed and remanded for entry of judgment for appellants.

REVERSED and REMANDED.

ANSTEAD and HURLEY, JJ., concur.


author: PER CURIAM.

text:
    Sandy PARKER, Appellant, v. SOUTH CAROLINA INSURANCE COMPANY, et al., Appellees.
    No. 81-225.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Rehearing Denied Feb. 25, 1982.
    Thomas A. Hoadley of Hoadley & Gavi-gan, P. A., West Palm Beach, for appellant.
    Stanley J. Narkier of Weathers, Narkier & Brooks, P. A., West Palm Beach, for appellee State No-Fault Ins. Agency, Inc.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellee South Carolina Ins. Co.
   PER CURIAM.

This is an appeal from a final judgment entered after a bench trial during which the trial court granted a motion for involuntary dismissal against appellant. Appellant alleged and sought to establish the existence of a contract of casualty insurance with the appellee, South Carolina Insurance Company. Upon review of the record we agree that the appellant neither pleaded nor offered proof of a cause of action against the appellee, State No-Fault Insurance Agency, Inc. However, there was evidence presented that the appellant secured a contract of insurance with South Carolina Insurance Company through the agency of State No-Fault; that the contract was cancelled for non-payment of a premium payment; and that State No-Fault, acting with apparent authority to do so, accepted subsequent payment from the appellant and assured her that the contract would be reinstated. Under these circumstances, we believe there was an issue of fact as to whether a valid contract of insurance existed between appellant and appellee, South Carolina Insurance Company. Russell v. Eckert, 195 So.2d 617 (Fla.2d DCA 1967).

Accordingly, the judgment is affirmed as to State No-Fault Insurance Agency, Inc., and reversed for further proceedings in accord herewith as to South Carolina Insurance Company.

DOWNEY, ANSTEAD and DELL, JJ., concur.


text:
    Charles T. MACEK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-844.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1982.
    Rehearing Denied Feb. 24, 1982.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged and convicted of attempted burglary. He raises three points on appeal, one of which is dispositive. At trial, appellant requested a jury instruction on the lesser included offense of trespass. The trial court denied this request and instructed the jury on attempted burglary only. We reverse. The information charged the appellant with the attempted burglary of a private residence. We believe the offense of trespass was comprehended by the allegations of the information and supported by the evidence adduced at trial. Thus, we hold that trespass was a Category Four lesser included offense under Brown v. State, 206 So.2d 377 (Fla.1968), and the trial court erred in denying appellant’s requested jury instruction.

REVERSED AND REMANDED FOR A NEW TRIAL.

BERANEK, HERSEY and DELL, JJ., concur.


text:
    Clemente DiMURO, Appellant, v. DAVE’S TILE SERVICE, INC., Appellee.
    No. ZZ-290.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1982.
    Rehearing Denied Feb. 23, 1982.

      Jay M. Levy of Silver, Levy & Hershoff, and R. Cory Schnepper of Ser, De Cardenas, Levine, Busch & Allen, Miami, for appellant.
    Albert P. Massey, III of Pyszka & Kes-sler, Fort Lauderdale, for appellee.
   PER CURIAM.

Claimant seeks review of an order of the deputy commissioner denying an award of attorney’s fees. We reverse.

On August 24, 1977, claimant suffered a compensable injury to her left leg. Dr. Richards, an orthopedic surgeon, was authorized to render medical attention. Surgery was performed and claimant continued under the post-operative care of Dr. Richards until November 14, 1978, at which time the claimant was given an appointment for December and was advised to return to work on November 20, 1978.

Instead of returning to Dr. Richards, claimant, without authorization, went to Dr. Gilbert. Dr. Gilbert informed claimant’s attorney by letter dated February 1, 1979 that claimant suffered a 35% permanent partial disability of the leg. That letter was forwarded to the employer/carrier. On February 14, 1979, the carrier’s claims representative wrote to claimant’s attorney advising him, in part, as follows:

To my knowledge, the claimant has not been given a rating by Dr. Richards, and it is my understanding that until the claimant returns to Dr. Richards’ office for the final evaluation, no rating, if any, can be given.
Please contact your client and suggest that he return to Dr. Richards’ office so that a final evaluation can be made.

On February 26, 1979, the carrier controverted Dr. Gilbert’s medical charges.

The matter lay dormant until May 29, 1979, at which date the carrier again advised the claimant’s attorney to have claimant return to Dr. Richards for rating purposes. On June 1, 1979, claimant’s attorney informed the carrier that Dr. Richards refused to schedule an appointment with claimant without authorization and requested that the carrier schedule same. Not until that time did the carrier take the initiative to arrange for an examination for claimant by Dr. Richards. As a result of that examination, Dr. Richards determined that claimant sustained a 20% permanent impairment of the left foot, which rating the carrier, upon notification, promptly accepted and paid.

After hearing, the deputy commissioner found, among other things, that claimant reached MMI on November 29, 1978, which date had been assigned by Dr. Gilbert, and suffered 25% permanent partial disability of the left leg. The parties stipulated as to the amount of attorney’s fees to be awarded claimant’s attorney for all benefits obtained as a result of the accident except for 20% of the permanent partial disability award. On that issue the deputy commissioner concluded that there was no basis for imposition of attorney’s fees against the carrier because the carrier had accepted in a timely manner and without resistance the permanency rating given by the authorized physician.

Section 440.34(1), Florida Statutes (1977), provided, in part, as follows:

“... if the employer or carrier ... shall decline to pay a claim on or before the twenty-first day after ... notice of same ... and the claimant shall have employed an attorney at law in the successful prosecution of the claim, there shall, in addition to the award for compensation, be awarded a reasonable attorney’s fee ...."

Notice of a claim for statutory purposes occurs when the employer first receives sufficient information upon which to begin an investigation. Latt Maxcy Corporation, et al. v. Mann, 393 So.2d 1128 (Fla. 1st DCA 1981). Upon receipt of such notice, the employer/carrier is charged with an affirmative duty to conduct within a 21 day period a reasonable investigation regarding the validity of the claim. Massey v. North American Biologicals, 397 So.2d 341 (Fla. 1st DCA 1981). This is so regardless of whether the notice was received from an unauthorized physician. Id.; Sun Banks of Florida, Hartford Insurance Group v. Hicks, IRC Order 2-3867 (July 25, 1979).

The carrier’s affirmative duty to investigate was triggered by its receipt of Dr. Gilbert’s letter. That duty was not satisfied by the passive position taken by the carrier as set forth in the quoted portion of its February 14th letter, followed by months of inactivity. Upon receipt of notice, it was incumbent upon the carrier to make “definitive arrangements for a prompt examination and evaluation of claimant” by Dr. Richards. Massey v. North American Biologicals, 397 So.2d 341, 344 (Fla. 1st DCA 1981).

Accordingly, the order of the deputy commissioner denying an award of attorney’s fees to claimant’s attorney is reversed and the cause is remanded for the entry of an order consistent with this opinion.

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


text:
    Theresa Lee MILLER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-780.
    District Court of Appeal of Florida, Third District.
    Jan. 26, 1982.
    Rehearing Denied Feb. 24, 1982.
    Bennett H. Brummer, Public Defender and Charles I. Poole, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The question of the admissibility in evidence of an extra-judicial confession is for the court to decide, based on all the circumstances of the confession, Palmes v. State, 397 So.2d 648 (Fla.1981). For purpose of a felony-murder conviction it is irrelevant that appellant was not present at the time of the actual killing. As a perpetrator of the underlying felony, she is a principal in the homicide. Goodwin v. State, 405 So.2d 170 (Fla.1981).

Affirmed.


author: COBB, Judge.

text:
    Roy A. WHITLOCK and Wanda Whitlock, his wife, Appellants, v. Sue ELICH and Allstate Insurance Company, Appellees.
    No. 80-1174.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.
    W. C. Airth, Jr., of Fowler, Williams & Airth, P. A., Orlando, for appellants.
    William B. Wilson of Maguire, Voorhis & Wells, P. A., Orlando, for appellees.
   COBB, Judge.

This is an appeal from a summary judgment in a personal injury case. We reverse.

The appellant, Roy A. Whitlock, a City of Orlando policeman, was on duty when he received a routine report of a stolen purse. He responded to the call by interviewing the victim, the appellee Sue Elich, at the situs of the crime, an Orlando boutique at which she worked. Whitlock interviewed Elich and made a report on the larceny of her purse. During the interview, he learned that the keys to her condominium had been taken with her purse. Consequently, Officer Whitlock drove Elich to her condominium residence, and he checked it for signs of entry, having expressed concern that someone may have used the keys to gain access to the condominium. He shined his flashlight through all of the windows on the ground floor. Elich told Whitlock that on other occasions she had been able to get inside by forcing a window open, reaching through and unlocking the window lock. Her attempts on this occasion to open the window were unsuccessful, and Officer Whitlock proceeded to attempt to open the window. At this point, there was a wedge-shaped opening between the window and a steel frame. Whitlock placed his right arm through the opening in an attempt to reach the window lock and his left hand against the glass to apply pressure to the window. As he was making this attempt, Elich removed the flashlight from the frame, where Whitlock had placed it to keep the window open, and she pulled the frame of glass down on Whitlock’s left hand.

Based upon the deposition testimony of Whitlock, it is clear that he went to the premises of Elich and was attempting to secure entry into her condominium apartment through the window, which she had told him could provide access, in order to ascertain that the thief who had stolen her purse and key had not used the key to “break into the condominium.” Whitlock was concerned about this possibility because of his police experience that such had frequently occurred in this area. It was his purpose, as a policeman, to check for the suspected intruder. Whitlock was bound by his own deposition testimony for purposes of the summary judgment hearing. Kramer v. Landau, 113 So.2d 756 (Fla. 3d DCA 1959).

Whitlock sued Elich for negligence. It was not alleged in Whitlock’s complaint that he was injured as a result of wanton negligence or wilful conduct on the part of Elich. At the summary judgment hearing, Elich argued that the plaintiff was barred from recovery for an injury incurred while discharging his professional duties in the absence of wanton negligence or wilful conduct on her part. See Hall v. Holton, 330 So.2d 81 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 948 (Fla.1977). Under the evidence adduced, Elich was not guilty of wanton or wilful conduct. Therefore, if this be considered strictly as a “premises liability” case — i.e., an injury resulting from a condition of the premises (a defective window)— then the issue would be the status of the policeman at the time of injury in order to determine the applicable standard of duty to be imposed upon Elich as an owner or occupant of the premises.

As observed by the Florida Supreme Court in Wood v. Camp, 284 So.2d 691 (Fla.1973):

It may be that on the facts in a particular case the determination of the category of the plaintiff must be determined as a matter of law by the trial judge, as in other cases in this respect; other causes will present a factual issue for the jury as to whether plaintiff is invitee, licensee or trespasser under appropriate instruction.

In this case, the facts were not in dispute on this issue and the trial judge made the determination that Whitlock was a licensee as a matter of law. We would agree with that determination. But such á determination, as in Wood and in Hall, is relevant only where an injury is caused by a defective condition of the premises. Maldonado v. Jack M. Berry Grove Corp., 351 So.2d 967 (Fla.1977). In this case, there was evidence that the injury was not caused solely by any defect in the premises but, at least in part, by the negligent act of Elich in removing a flashlight prop from the window frame and actively “scissoring” Whitlock’s hand while she was moving the glass pane in an attempt to assist him. The Florida Supreme Court has recognized a distinction between an injury caused by the active conduct of the putative tortfeasor and an injury caused by a defective condition of the landowner’s premises. Maldonado; Hix v. Billen, 284 So.2d 209 (Fla.1973). In the former situation, the applicable standard is ordinary negligence. The summary judgment below is reversed for this reason.

REVERSED and REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.


author: DAUKSCH, Chief Judge.

text:
    TIMES PUBLISHING COMPANY, a Florida corporation, Appellant, v. L. R. HUFFSTETLER, Jr., Appellee.
    No. 81-67.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.
    Talbot D’Alemberte of Steel, Hector & Davis, Miami, and George K. Rahdert and Joy M. Packer of Rahdert & Packer, St. Petersburg, for appellant.
    A. P. Gibbs of Gibbs & McAlvanah, P. A., Dade City, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment in a defamation suit.

Appellant’s newspaper, The St. Peters-burg Times, had published a news article containing false and defamatory allegations against appellee, a circuit judge. The article concerned certain alleged activities of and statements by appellee and the county sheriff. The defamatory nature of the publication is not an issue for our consideration so, for that reason, we have determined it to be of no value to go into the content of the newspaper article. Also, we will not go into the proof at trial which demonstrated the falsity of the story.

It is appellant’s contention that the evidence is insufficient to support the verdict and judgment because even though the story was false, a newspaper should not be held to account for the falsehood, in damages, because the appellee failed to meet the standard required of public officials in proving libel cases.

It is clear that the applicable standard is the “actual malice” rule as articulated by the United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964): “the constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering in a libel suit unless he proves that the statement was made with “actual malice” — that is, with the knowledge that it was false or with reckless disre gard of whether it was false or not.” 376 U.S. at 279-80, 84 S.Ct. at 725-26 (emphasis supplied). Subsequent decisions of the Court have enunciated the “actual malice” standard: “only those false statements made with the high degree of awareness of their probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964); evidence of either deliberate falsification or reckless publication “despite the publisher’s awareness of probable falsity”, Curtis Publishing Co. v. Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 1990, 18 L.Ed.2d 1094 (1967); “mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 331, 94 S.Ct. 2997, 3002, 41 L.Ed.2d 789 (1974); proof of elements of common law malice, viz: spite, hostility, deliberate intention to harm, does not satisfy the constitutional requirement of “actual malice” in the absence of proof of deliberate falsity or reckless disregard for truth, Greenbelt Cooperative Publishing Ass’n. v. Bresler, 398 U.S. 6, 10, 90 S.Ct. 1537, 1539, 26 L.Ed.2d 6 (1970). And, in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Court defined “reckless” publication:

These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

390 U.S. at 731, 88 S.Ct. at 1325. (emphasis supplied).

“Actual malice” must be proved with convincing clarity. New York Times v. Sullivan, 376 U.S. 254, 285-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964). This standard of proof has been applied by Florida courts, Gibson v. Maloney, 263 So.2d 632 (Fla.1970), Palm Beach Newspapers v. Early, 334 So.2d 50 (Fla. 4th DCA 1976), and has been defined as requiring more than a preponderance of the evidence yet less than the criminal requirement of beyond a reasonable doubt.

In analyzing the evidence in a light most favorable to appellee we find it inescapable to conclude that the judgment for appellee cannot be sustained on the proof presented. There was no proof that appellant deliberately falsified the statement or was aware of probable falsity at the time of publication. According to the proof, the only misconduct that can be attributed to appellant is the reporter’s failure to completely verify the article prior to publication. Appellant’s reporter did make an effort to contact appellee prior to publication in order to attempt to verify the story. We cannot say that appellant’s actions leading up to publication give rise to a finding of “actual malice”, i.e. knowledge of falsity or reckless disregard for falsity.

We find support for the appellant’s position that the libelous statements resulted from an honest misunderstanding as to what was told to the reporter who caused the story to be published. The article is substantially accurate and is inaccurate only as to an event of minor significance when the entire story is considered.

The Supreme Court in New York Times v. Sullivan noted that the press has a special duty to inform the public of activities of public officials. “The public official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official’s fitness for office is relevant.” Garrison v. Louisiana, 379 U.S. 64, 77, 85 S.Ct. 209, 217, 13 L.Ed.2d 125 (1964). A public official runs the risk of closer public scrutiny than one with no involvement in public affairs. A judge in seeking the public trust and confidence must accept the burden of public interest in his personal life as well as public concern with his professional life. The Court in New York Times also observed that where judicial officers are involved in press publications, even the dignity and reputation of the courts do not justify exemption from the constitutional limitations on liability. Thus, even “half truths” and “misinformation” about judges are subject to constitutional limitation in punishment, as “judges are to be treated as ‘men of fortitude able to thrive in a hearty climate’.” New York Times v. Sullivan, 376 U.S. 254 at 273, 84 S.Ct. 710 at 722, 11 L.Ed.2d 686, citing Justice Douglas in Craig v. Harney, 331 U.S. 367 at 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546 (1947).

A rule of strict liability compelling publishers to guarantee the accuracy of all factual assertions would lead to intolerable self censorship. The freedoms of the First Amendment would not be adequately protected by allowing the media to avoid liability only by proving the truth of all injurious statements. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974).

The burden upon public officials is greater because the public’s valid interest in their conduct and behavior requires the news media to publish more about them, thus giving more chances for honest error. This burden should not seem intolerable when one weighs the number of actually badly motivated cases against the public’s right to know about their officials along with the First Amendment rights. The courts must protect the freedom of speech enjoyed by everyone, and most exercised by newspapers, just as the courts protect the other constitutional freedoms, such as protection against unlawful search and seizure and due process violations. In fact, and under the law, free expression stands at the base of all rights of a free man.

The appellant has raised other allegations of error which we need not deal with because it is our determination that the appel-lee failed to prove with legally sufficient evidence the essential element of actual malice, which requires a reversal.

REVERSED AND REMANDED for entry of judgment for the appellant.

ORFINGER and SHARP, JJ., concur.

      . Courts are generally cognizant of the pressures on a newspaper for timely dissemination of news information. The Florida Supreme Court in Ross v. Gore, 48 So.2d 412 (Fla.1950), recognized that:
      this court judicially knows that it frequently takes a legal tribunal months of diligent searching to determine the facts of a controversial situation. When it is recalled that a reporter is expected to determine such facts in a matter of hours or minutes, it is only reasonable to expect that occasional errors will be made. Yet, since the preservation of our American democracy depends upon the public’s receiving information speedily ... it is vital that no unreasonable restraints be placed upon the working news reporter or the editorial writer.

        Id. at 415.


author: COWART, Judge.

text:
    CAIN & BULTMAN, INC., a Florida corporation, Appellant, v. MISS SAM, INC., a Florida corporation, Thomas A. Miller and Marie J. Miller, his wife, and Florida Carpet Corporation, Appellees.
    No. 81-124.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.

      S. Gordon Blalock of Blalock, Holbrook & Akel, P. A., Jacksonville, for appellant.
    Clark A. Stillwell of Tucker, Hicks, Blanchard, Brannen & Stillwell, P. A., In-verness, for appellee Miss Sam, Inc.
    No appearance for appellees Thomas A. Miller and Marie J. Miller and Florida Carpet Corp.
   COWART, Judge.

This case involves: the effect of the recording statute and of a notice of lis pen-dens; the nature of an agreement for deed (or land contract); and the property rights of parties claiming under an agreement for deed and two mortgages relating to real property in Citrus County, Florida.

Thomas A. Miller and Marie J. Miller (the Millers), acquired land in 1972 and in 1974 mortgaged a part of it and a mobile home to Citizens First National Bank to secure an indebtedness of $20,000. This first mortgage was promptly and properly recorded.

In 1976 the Millers, as sellers, executed an “Agreement for Deed” with Frank G. Ackley and Janet B. Ackley (the Ackleys), as buyers, in which the buyers agreed to pay to the sellers various incremental sums of money and the sellers agreed that, upon payment of said sums in full, the sellers would execute and deliver to the buyers a warranty deed to certain personalty and two tracts of land, the first being a 13.54 acre tract which included the property mortgaged to the Citizens Bank. In this agreement the sellers agreed to make all payments on the first mortgage as due and to have that mortgage satisfied of record when the buyers were entitled to receive their warranty deed. This agreement provided that if the buyers defaulted in payment, the sellers had the right to “terminate this agreement,” in which event the buyers agreed they would surrender possession and the sellers could retain all sums paid as liquidated damages and as reasonable rental for the use of the property. This agreement was not recorded but, claiming under it, the Ackleys took actual possession of the property.

Thereafter, the Millers filed suit against the Ackleys to foreclose the agreement for deed for default in payment and filed a notice of lis pendens on July 13, 1977. On February 13, 1978 (while the Miller-Ackley foreclosure suit was' pending), the Millers executed to appellant Cain & Bultman, Inc., a mortgage on the 13.54 acre tract to secure a note for $50,000. This mortgage was not recorded in Citrus County until December 13,1978. On February 7,1979 (again while the Miller-Ackley foreclosure suit was still pending), appellant filed suit against the Millers to foreclose its mortgage; this suit proceeded to final judgment and on October 10, 1979, appellant bought the 13.54 acre tract of land at the resulting clerk’s sale.

In the meantime, by an instrument captioned and filed in the pending Miller-Ackley foreclosure suit, the Ackleys sold, assigned and transferred to appellee Miss Sam, Inc., “all of their right, title and interest in and to the above captioned case.” Miss Sam was then substituted as party defendant for the Ackleys. The Millers and Miss Sam stipulated a settlement under which the Millers agreed to transfer all of their interest in the property to Miss Sam in consideration of Miss Sam releasing all claims against the Millers under the agreement for deed and all claims under the Ackleys’ counterclaim for rescission and damages. The trial court in the Miller-Ackley foreclosure suit approved that settlement stipulation, ordered the Millers to perform by conveying the property to Miss Sam within twenty days and provided that upon Millers’ failure to timely make such conveyance the order would act as such conveyance. Miss Sam then acquired the Citizens First National Bank first mortgage, and the indebtedness it secured. Next Miss Sam brought an action against the Millers and Cain & Bultman in two counts: the first count to foreclose the Citizens First National first mortgage and the second count to quiet title to the 13.54 acre tract and the second parcel described in the Miller-Ackley agreement. The trial court by summary judgment quieted the title to said property in Miss Sam, whereupon Miss Sam voluntarily dismissed the mortgage foreclosure count. Cain & Bultman filed this appeal challenging the correctness of the judgment quieting title in Miss Sam.

The questions involved are: what are the rights of the two contending parties (the appellant Cain & Bultman and the appellee Miss Sam) in and to this property, whose rights are superior and what is the effect of that superiority.

The first question is the one of priority. Normally, competing interests in land have priority in order of their creation in point of time. An interest created first has superiority over an interest created later from the same source, provided that notice of the first created rights are available to those later acquiring rights in the same land. Under our recording statute, section 695.01, Florida Statutes (1979), this notice may come from parties in possession of the property, from actual notice or from constructive notice of matters recorded in the public records. In the answer filed September 16, 1977, in the Miller-Ackley foreclosure action, the Ackleys alleged that they had vacated the property in question on or about August 1, 1977. After this date, no notice of their rights could be imputed from possession. This really does not matter in this case because, under section 48.23(2), Florida Statutes, the lis pen-dens filed July 13, 1977 in the Miller-Ackley foreclosure action was effectual until July 14, 1978, but not thereafter, to give constructive notice of the matters involved in that action.

This prompts Cain & Bultman to argue that it was not charged with constructive notice of the Ackleys’ rights involved in the action to foreclose the agreement for deed because Cain & Bultman did not record its mortgage from the Millers in Citrus County, Florida, until December 13, 1978. The answer to this contention is that for notice to those who later acquire an interest in real property to be meaningful, such notice must be available at the time the subsequent interest is acquired. Cain & Bultman acquired its mortgage interest on February 13, 1978, which was during the one year (July 13, 1977 to July 14, 1978) that the lis pendens in the Miller-Ackley foreclosure suit was effectual to give notice of Ackley’s rights under the agreement for deed. Since Cain & Bultman acquired its mortgage interest with legal (constructive) notice of the Miller-Ackley agreement for deed, its mortgage interest is inferior to the rights of the Ackleys and their successors in interest. The recording of Cain & Bultman’s mortgage in Citrus County, Florida, on December 13,1978, was effective only to give notice of its mortgage to persons acquiring an interest in the property after the recording of that mortgage (more on this later) and had nothing to do with Cain & Bultman’s notice of Ackleys’ contract rights. Accordingly, Cain & Bultman acquired its mortgage lien interest with at least legal constructive notice of the Citizens First National Bank recorded first mortgage and of the Miller-Ackley agreement for deed; therefore, Cain & Bultman’s mortgage lien interest in its hands was, and is, inferior to the rights of the original holders of those instruments and of their successors in interest thereunder.

The next question is what are the rights of the parties in and to this property. The answer to this question requires a consideration of the nature of the rights involved. Originally, the Millers owned the unencumbered title in fee simple absolute— the whole title recognized in law and in equity. They first gave Citizens First National Bank a lien against their whole legal-equitable interest in part of the land in question to secure an indebtedness. The effect of this mortgage is that the Millers agreed that, if repayment of the promissory note was made, the lien of the mortgage would be cancelled but, if not, the holder of the mortgage had the right to look to the property as security and to collect the debt, if necessary, by a foreclosure proceeding in equity. In foreclosure, the unpaid amount of the debt is determined and the owner is given one last opportunity to “redeem” his property by payment of all sums due, failing which the property is sold at public sale conducted under court authority and the proceeds of the sale are applied to pay or reduce the unpaid balance on the debt, with any surplus available to those having inferi- or rights in the mortgaged property.

. In the usual sale of land where the purchaser does not pay the purchase price in full, the seller conveys by deed the legal title (which includes the unsevered equitable title) to the purchaser, who then executes a note and mortgage back to the seller to secure the unpaid portion of the purchase price. Under this arrangement, the purchaser first acquires the whole legal and equitable title subject to losing it by foreclosure if the secured portion of the purchase price is not paid. The seller passes the legal-equitable title and acquires a purchase money mortgage lien against the property with substantially the same rights as a lender whose mortgage merely secures a loan.

Another, less common method of effecting a time payment sale of land is by an agreement for deed, sometimes called a contract for deed, an installment sales contract, a land contract and sometimes even a retained title or conditional sale contract. The Miller-Ackley Agreement for Deed is such a legal instrument. It is an executory contract for the sale of land in which the buyer agrees to pay the purchase price, usually in a series of payments over a long period of time. The buyer is usually given possession of the land and the seller agrees that when the purchase price has been paid in full the seller will then convey the legal title to the buyer, usually by warranty deed.

A maxim of equity is to the effect that equity treats that as being done which should be done. This is sometimes called the doctrine of equitable conversion. Since parties should do that which they have contracted to do, equity applies this maxim to assume that the payment agreed to be made will be made and that the title which is to be delivered has already passed. Therefore, in real property law theory, upon execution of such a contract the purchaser is considered to thereby acquire the equitable title to the property. This means that, while the purchaser does not have the legal title, he has a title which will be recognized for many purposes in a court of equity. An equitable title is not a lien nor is it the same as holding a legal title subject to a mortgage lien. It is somewhat similar to these property rights, but it is not the same thing as either. Under a land contract the seller continues to hold the legal title but in trust for the purchaser and subject to the contractual duty to convey it to the purchaser at the completion of the time payments. Conversely, the purchaser holds a contractual right under which, if the purchase price is paid and the seller fails to voluntarily convey the legal title, the purchaser is entitled to apply to a court of equity to specifically enforce the contract and to have the court require the seller, or his successors in interest with notice, to convey the legal title to the buyer. In the event the purchaser defaults in payment and the seller desires an adjudication of termination of the buyer’s rights, this can be done in an action in equity. We perceive, however, that the seller may proceed in equity in any of several ways to accomplish this: by an action in equity in the nature of a traditional mortgage foreclosure suit; by an action in equity in the nature of a traditional quiet title suit; or by a suit for declaratory decree in which the seller alleges the agreement for deed and the facts believed or claimed to justify a termination of the contract purchaser’s rights in equity (usually nonpayment of the purchase price), and the unfulfilled contract is adjudicated to have become merely a cloud on the seller’s legal title and is removed. In these latter types of actions the equity court can adequately protect the equitable rights of the purchaser as a condition of equitable relief just as easily as in a foreclosure action modeled after an action to foreclose a mortgage lien against the legal title. This protection should include giving the purchaser a last opportunity to redeem his rights to a conveyance of the legal title to the property by payment of all sums due. This constitutes an equity of redemption in the contract purchaser similar to the equity of redemption in the titleholder of land which is subject to a mortgage lien.

In Mid-State Investment Corp. v. O’Steen, 133 So.2d 455 (Fla. 1st DCA), cert. denied, 136 So.2d 349 (Fla.1961), the plaintiffs “assigned to the defendant their deed to the land and took back an unrecorded contract for deed.” Thereafter the plaintiffs defaulted in payment and moved out of possession of the property. Apparently the defendant read the forfeiture provision in the contract, believed it meant what it said, took possession of the property and sold it “to the half-brother of the next-door neighbor.” O’Steen, Id. at 456. The plaintiffs then sued the defendants for damages for trespass. The trial court directed a verdict against the defendants. On appeal the First District Court on Appeal affirmed, holding that the forfeiture clause was ineffective because the arrangement constituted a security device, that the contract constituted a mortgage within the meaning of section 697.01, Florida Statutes, and that the defendant had no legal right to repossess the property or to trespass on it and was responsible in damages for having done so and that the defendant’s remedy was an equitable foreclosure of its lien. We have no quarrel with these holdings under the facts of that case because it appears that the defendant was not a bona fide seller and the whole arrangement was a mere device to secure a loan of money. However, the court in 0’Steen went further to state that the defendant’s “deed of the land to the neighbor’s brother-in- law [sic] was obviously a nudum pactum and passed no title to the land.” Id. at 458. That statement was unnecessary to the holding in that case, was therefore obiter dictum and is essentially erroneous.

In a particular instance, as perhaps in O’Steen, where the legal title is transferred to a creditor who enters into an agreement for deed with a debtor as purchaser, and the whole arrangement is but a device to secure a loan, the deed and agreement for deed together constitute a mortgage within the purview of section 697.01, Florida Statutes (1981). However, every agreement for deed is not a mortgage. Most times, as in this case, the agreement for deed is just what it appears to be: a true good faith time sales agreement, the primary function of which is to state the terms of a binding agreement to transfer the legal title to certain real property. In such an instance, apart from securing the seller’s right to receive payment, the agreement also secures the purchaser’s right to receive the legal title upon payment in full. The seller continues to hold the legal title subject to the purchaser’s equitable title and contract rights and the seller, in effect, has a lien against the purchaser’s equitable title. When this is the true nature of an agreement for deed, there is nothing illegal, immoral or inequitable about the arrangement and under constitutional freedoms, citizens should be able to so contract and the rights and relationships between the parties should be as provided in. the agreement, with, of course, the one notable qualification that contract provisions relating to forfeiture and self-help possession (or “repossession”) violate public policy and are not enforced or recognized as valid as such in law or in equity.

The usual agreement for deed separates the equitable title from the legal title to the land and transfers it to the purchaser and entitles the purchaser, upon performance, to a conveyance of the legal title from the seller. It is an incident of this contractual right that the purchaser has an equity of redemption, which by statute is subject to levy. However, it is not inconsistent with the contract purchaser’s equitable rights (including the right of redemption) to recognize that the legal title held by the seller after the execution of such an agreement for deed can be conveyed, devised, encumbered or levied on by creditors.

Accordingly, we hold, contrary to the dictum in O’Steen, that the legal titleholder can convey or encumber his remaining interest in and to the property subject to his purchaser’s rights under the contract. Consequently, the mortgage from the Millers to Cain & Bultman was valid and effective to encumber the Millers’ then interest in the property, which was itself subject to the recorded first mortgage to Citizens Bank and to the contract rights of the Ackleys. The recording of Cain & Bult-man’s mortgage on December 13, 1978, put subsequent lenders, purchasers and creditors on constructive notice of its mortgage rights; this included Miss Sam, when on January 5, 1979, Miss Sam took an assignment of the Ackleys’ rights.

Even assuming that Miss Sam succeeded to the Ackleys’ rights, those rights were only entitlement to a conveyance of the land upon payment of the balance due to the Millers. Further, Miss Sam was put on constructive notice of Cain & Bultman’s lien rights under its recorded mortgage and also on constructive notice that Cain & Bultman had succeeded to the Millers’ legal title by virtue of the Cain & Bultman-Miller foreclosure suit and the resulting clerk’s certificate of title to Cain & Bultman as of October 10,1979, when on October 19 or 25, 1979, Miss Sam (as assignee of the Ackleys) and the Millers attempted to stipulate a settlement in the Miller-Ackley foreclosure suit and to cause a transfer of the Millers’ rights in said property to Miss Sam. Therefore, as against Cain & Bultman, both the transfer of the Millers’ interest to Miss Sam and the circuit court order of November 2, 1979, approving and effectuating that transfer, are ineffective to accomplish that transfer. If the assignment from the Ack-leys to Miss Sam and the settlement conveyance from the Millers to Miss Sam had both been effective, the result would have been that the legal and equitable title would have merged in Miss Sam and the judgment below confirming title in Miss Sam would have been correct. However, this did not occur; Millers’ former legal title is in Cain & Bultman and the Ackleys’ equitable title, whether in them or in Miss Sam has never been properly terminated by an equity court and apparently is outstanding and good as against Cain & Bultman’s title to the property in question. This means that in any equitable proceedings to resolve the rights of those succeeding to the interests of the original parties to the agreement for deed, those parties would be entitled to an accounting. Also, in this particular case, anyone succeeding to the Ackleys’ equitable title under the agreement for deed, subject to all other equitable considerations, would be entitled to exercise an equity of redemption by paying to Cain & Bultman, as successor to the Millers, all sums due to the original contract sellers under the agreement for deed, less, of course, the balance due on the Citizens Bank mortgage which the original contract sellers (the Millers) agreed to pay.

In summary, Cain & Bultman holds the legal title to the property described in the clerk’s certificate of title dated October 10, 1979, subject to the unpaid balance due on the first mortgage originally given to Citizens First and now held by Miss Sam (as to that portion of the 13.54 acre tract that is included in said mortgage). This legal title is also subject to the rights of the Ackleys or their successors in interest to receive a conveyance upon payment to Cain & Bult-man of all sums due and unpaid under the Miller-Ackley agreement for deed. As to the second parcel included in the Miller-Ackley agreement but not included in Cain & Bultman’s mortgage, Cain & Bultman has no interest and this appeal has no effect on the judgment below.

As to the 13.54 acre tract, the judgment below is reversed and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion. If the parties or either of them desire to resolve their rights in this proceeding at this time both should be permitted to replead as necessary to resolve any and all matters between them relating to the property in question, including the right to accountings as to sums due under the first mortgage and under the Miller-Ackley agreement.

REVERSED AND REMANDED.

DAUKSCH, C. J., and SHARP, J., concur.

      . See Fla.R.Civ.P. 1.570(d).

      . This is worded in this manner because, if, after July 14, 1978 (the last date the lis pendens in the Miller-Ackley foreclosure was effective to give constructive notice), appellant had negotiated its mortgage to a purchaser for value who did not have actual knowledge of the Miller-Ackley agreement for deed, then the Miller-Cain & Bultman mortgage might have become, in the hands of such good faith purchaser, superior to the rights of the Ackleys or their successors under the Miller-Ackley agreement for deed.

      . For a discussion of the practical aspects of agreements for deeds, see The Florida Bar, 1 Florida Real Property Practice, §§ 17.59-17.60 (1965). The theoretical aspects are considered in 8A Thompson on Real Property § 4442, at 253 (1963).

      . See 8A Thompson on Real Property § 4447, at 273 (1963).

      . The court in O’Steen acknowledges that the “evidence at the trial was rather nebulous as to the exact nature of the parties’ transaction.” It certainly must have been, because in real property law practice there is no such thing as assigning a deed. A deed is merely an instrument formally evidencing the transfer of an intangible title interest in and to land and when delivered it fulfills its purpose and is exhausted and remains only as evidence of the transfer that occurred. After one has acquired title by deed or otherwise, that title is transferred by another deed or by will or otherwise, but the prior deed is not assigned. Perhaps in O’Steen there was a prior contract for deed in which the plaintiffs were purchasers and they assigned their rights under the prior contract (their rights to receive a deed) to the defendant corporation which paid the prior seller, took legal title by deed from the prior seller then made a new contract for deed with the plaintiffs who were again portrayed as purchasers under contract (P.U.C.).

      . Apparently a provision quite usual and one similar to that contained in the Miller-Ackley agreement for deed.

      . The tax aspects of the vendor’s security (lien) rights are considered in Jasper v. Orange Lake Homes Inc., 151 So.2d 331 (Fla.2d DCA), cert. denied, 155 So.2d 694 (Fla.1963).

      . Hoffman v. Semet, 316 So.2d 649 (Fla. 4th DCA 1975).

        . Latin-American Bank v. Rogers, 87 Fla. 147, 99 So. 546, 547 (1924), holds that the interest of a titleholder who has entered into an agreement for deed is subject to levy under execution on a judgment. Of course, anyone acquiring rights from the seller with notice of the rights of a contract vendee (a purchaser under contract) takes subject to those rights and acquires only the rights of the contract seller. The contract seller, although the titleholder, usually has only the right to receive the balance of the purchase price. Therefore after the purchase price has been paid in full but before a conveyance of the legal title to the contract vendee pursuant to the contract, the contract seller effectually has no interest subject to levy. See Michaels v. Albert Pick & Co., 158 Fla. 877, 30 So.2d 498 (1947). Hull v. Maryland Cas. Co., 79 So.2d 517 (Fla.1954) is explained because the judgment creditor of the titleholder had notice of the rights of the purchaser under an agreement for deed with the titleholder, not because the doctrine of equitable conversion so completely divested the titleholder of any rights in the land that he no longer had an interest subject to levy. There is language in Hull that infers to the contrary and that misleadingly broad language is unfortunately repeated in J. C. Penney Co., Inc. v. Koff, 345 So.2d 732 (Fla. 4th DCA 1977).

      . We note that this assignment was captioned in the Miller-Ackley foreclosure action and was of all of the Ackleys’ “right, title and interest in and to the above caption case.” There is a substantial question as to the sufficiency of this language to assign the Ackleys’ rights under the agreement for deed and to convey their equitable title to Miss Sam, Inc. We also note the champertous nature of this assignment.


text:
    George N. ARMSTRONG, Appellant/Cross Appellee, v. J. Cornall HOWARTH, M.D., Appellee/Cross Appellant.
    No. 81-203.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 1982.
    T. G. LaGrone of LaGrone & Felice, P. A., Orlando, for appellant/cross appellee.
    Miranda Franks of Maguire, Voorhis & Wells, P. A., Orlando, for appellee/cross appellant.
   PER CURIAM.

Appellant, George Armstrong, appeals the trial court’s order granting appellee’s motion for summary judgment based on the finding that appellant failed to mediate his medical malpractice claim. Appellee cross appeals the trial court’s finding that the complaint was not barred by the statute of limitations.

It is undisputed that appellant became aware of his probable cause of action for medical malpractice as of August 18, 1975. On November 17, 1976, appellant filed a medical mediation claim against a Dr. Tucker and appellee alleging professional malpractice. Dr. Tucker was served, answered, and obtained an extension of jurisdiction from the mediation panel. However, appellant failed to ever serve appellee during the entire time the medical mediation panel had jurisdiction over the claim. On October 10, 1977, appellant filed a medical malpractice complaint against both Dr. Tucker and ap-pellee. Appellee ultimately filed a motion for summary judgment based on the appellant’s failure to mediate or alternatively that the statute of limitations had run. Although the trial court held the applicable limitation statute had not run, he found the appellant had failed to mediate his claim and granted summary judgment. We affirm.

We hold that, at the very least, to effectively submit a claim to mediation a potential plaintiff must file a claim and obtain service on the opposing party. This gives a mediation panel jurisdiction and an opposing party notice. Anything less is tantamount to failing to submit a claim in any shape or form. This the appellant in the instant case did not do and the trial court correctly ruled that appellant failed to mediate his claim against the appellee.

In Fisher v. Herrera, 367 So.2d 204 (Fla.1978), the patient filed a claim against the doctor and when the parties were before the mediation panel the plaintiff declined to present evidence. For his failure to produce evidence, the trial court dismissed his complaint in court. The district court reversed, holding the only sanction available against the plaintiff was a mediation panel finding of no negligence. That is, it was error to dismiss the malpractice suit but the doctor could introduce at trial evidence of the panel’s finding of no negligence on his part. This case is different in that the patient failed to properly submit his claim, a strict requirement of the statute and a prerequisite noted in the Fisher case. Merely filing a mediation claim without serving the doctor does not confer complete jurisdiction in the panel; so, without jurisdiction the panel could not make a finding, even a tacit one of no negligence. Until personal jurisdiction over the doctor is obtained the panel has no legal authority to proceed for or against the doctor. The appellant’s failure to serve the doctor must result in detriment to the appellant. It appears from the record appellant could have properly served the doctor (in fact he did mail a copy of the claim to the doctor) but failed to do so while the panel had subject matter jurisdiction over the claim. It also appears the appellant had caused personal jurisdiction to be conferred over another doctor in the same mediation proceeding. The trial judge was ultimately correct. Based upon the facts in this case, we conclude no one should be faulted but the appellant.

In light of our decision regarding the issue on appeal, the statute of limitations issue on cross appeal is moot.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER and COWART, JJ., concur.