author: COBB, Judge.

text:
    TRANSIT CASUALTY COMPANY, Appellant, v. RYDER TRUCK LINES, INC., Appellee.
    No. 79-1231/T4-582.
    District Court of Appeal of Florida, Fifth District.
    May 21, 1980.
    Rehearing Denied June 24, 1980.
    Leighton D. Yates, Jr., and Miranda Franks of Maguire, Voorhis & Wells, P. A., Orlando, for appellant.
    Robert B. Nadeau, Jr., of Akerman, Sen-terfitt & Eidson, Orlando, for appellee.
   COBB, Judge.

Ryder Truck Lines, Inc. (Ryder) entered into a lease arrangement with Georges Motor Express, Inc. (Georges), whereby Georges would haul shipments for Ryder. Georges agreed to indemnify Ryder and to provide insurance. Georges used The Gateway Agency, Inc. (Gateway), an agency of an insurance broker called Interstate Agencies Group (Interstate), to procure insurance from Transit Casualty Company (Transit). The Transit policy became effective on March 1, 1975, and provided Georges with various coverages, including truck cargo insurance of $1,000,000 per occurrence.

On May 2, 1975, Gateway sent a request to Transit to cancel Georges’ policy due to non-payment of premium. In response, on May 6, 1975, Transit sent Georges notification that its policy would be canceled on June 11,1975, for non-payment of premium. In a follow-up letter, Gateway explained to Transit that Georges had informed Gateway that Georges had greatly reduced its estimate of its annual gross income. Georges subsequently procured a cargo policy with Royal Globe Insurance Company (Royal Globe) effective June 20, 1975, providing coverage of $250,000 per occurrence.

Pursuant to its lease agreement with Ryder, Georges loaded a shipment of beef in Denver on June 19, 1975. A partial delivery and full inventory was made in New York on June 22, 1975, and a number of cases of meat were discovered to be missing. A second New York delivery and inventory was made on June 23, 1975, and more cases of meat were missing.

Ryder paid the beef producer for the loss of the meat, and then Ryder sued Transit, Interstate, and Royal Globe. Ryder settled with Interstate and Royal Globe. Ryder recovered a judgment against Transit for the remainder of the loss.

The Transit policy had an “other insurance” clause, making it an excess policy, but it did not have any cancellation provisions. At trial, Transit raised two defenses. First, Transit contended that the policy had been effectively cancelled. At the end of the trial, the trial court found that since there was no provision regarding cancellation in the Transit policy, the policy could only be cancelled by mutual agreement or by anticipatory breach; that neither was shown by the evidence; and, therefore, there was coverage for Ryder under the Transit policy. As a second defense, Transit contended that since it was only an excess insurer, its policy did not provide coverage until the insured, Georges, showed that there was no other collectible insurance. The trial court decided that the burden of showing no other collectible insurance was on Transit.

We disagree with the trial court on both points of law. The actions of Georges with regard to its Transit policy show an intent to abandon the Transit policy in favor of a less expensive policy due to financial reasons. See 45 C.J.S. Insurance § 443 (1946); 3A Appleman’s Insurance Law and Practice § 1840 (1975). The actions of Transit show that it consented to Georges’ abandonment. Thus, the Transit policy was cancelled by mutual consent.

We recognize that other jurisdictions have held that the duty of proving other insurance is on the insurer as a defense. 21 Appleman’s Insurance Law and Practice § 12246 (1969); State v. National Auto Ins. Co., 290 A.2d 675 (Del.1972); Bosko v. Pitts & Still, Inc., 75 Wash.2d 856, 454 P.2d 229 (1969). However, we agree with the differing view that it is the insured’s duty to show that he has exhausted all other insurance as a condition precedent to collecting from an excess insurer. Spur-geon v. State Farm Mut. Ins. Co., 169 So.2d 343 (Fla. 1st DCA 1964). Whether there is other insurance that is collectible is to be decided as of the time of the incident, rather than the time of the trial. State Farm Mut. Ins. Co. v. Vines, 193 So.2d 180 (Fla. 1st DCA 1966).

Due to our decision on the merits, the award of attorney’s fees at the trial level is also reversed.

REVERSED.

ORFINGER and UPCHURCH, JJ., concur.


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    Julian WORRELL and Roselynn Worrell, his wife, et al., Appellants, v. JOHN F. KENNEDY MEMORIAL HOSPITAL, INC., et al., Appellees.
    Nos. 78-750, 78-869.
    District Court of Appeal of Florida, Fourth District.
    May 28, 1980.
    Rehearing Denied July 10, 1980.

      David T. Price of Price & Byrne, Fort Lauderdale, for appellants.
    Jack Miller of Brennan, McAliley, Hays-kar & McAliley, West Palm Beach, for ap-pellee, John F. Kennedy Memorial Hospital, Inc.
    Marjorie Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appellees, Stanley Dober, M. D., Alan B. Cohen, M. D., and H. John Richmond, M. D.
   BERANEK, Judge.

This is an appeal by plaintiffs from an adverse final judgment based on the statute of limitations. The plaintiffs sued defendants/appellees who were physicians and a hospital. The complaint alleged that defendants negligently administered and/or monitored an overdose of a particular drug resulting in the death of plaintiffs’ son, a minor. The death was alleged to have occurred almost simultaneously with the treatment on January 14, 1973. The question is whether the eventual suit based on the alleged medical malpractice and death of the child was barred by the applicable statute of limitations. In response to the complaint, the defendants filed answers denying negligence and affirmative defenses based on the statute of limitations. Motions for summary judgment were filed by each defendant raising the statute of limitations as a defense. In these motions it was stated that the plaintiffs’ cause of action accrued on January 14, 1973. Plaintiffs filed no Reply seeking to avoid the defenses pursuant to Rule of Civil Procedure 1.100(a). The trial court granted summary judgment in all defendants’ favor based upon the statute of limitations.

On appeal plaintiffs assert the defendants/doctors fraudulently concealed their alleged negligence and that plaintiffs did not become aware of the true cause of the minor’s death until December, 1976. There were no pleadings supporting the argument of concealment nor were there pleadings alleging when plaintiffs actually became aware of the alleged malpractice. These arguments on appeal are based only upon comments in depositions.

On January 13, 1977, plaintiffs filed a medical mediation claim which proceeded to a hearing before a mediation panel and a decision on July 18, 1977. After the panel’s decision, suit was filed on August 31, 1977. The trial court thereafter granted summary judgment for all defendants and plaintiffs now seek reversal. In summary the important dates are as follows:

January 14,1973 — death and alleged unknown malpractice
December, 1976 — plaintiffs contend they became aware of malpractice and cause of action
January 13,1977 — medical mediation claim filed
July 18,1977 — decision by medical mediation panel
August 31,1977 — suit filed.

Our decision requires tracing the development of the statute of limitations as applicable to medical malpractice claims and to wrongful death claims. In the early 1940’s the limitations in effect were Section 95.-11(4) and (6), Florida Statutes (1943). These provisions were:

Actions other than those for the recovery of real property can only be commenced as follows:
* * * * * *
(4) WITHIN FOUR YEARS — Any action for relief not specifically provided for in this chapter.
* * * * * *
(6) WITHIN TWO YEARS — An action by another than the state upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery or false imprisonment: an action arising upon account of an act causing a wrongful death.

Under this statute, medical malpractice was governed by the four-year provision of subsection (4), and wrongful death by the two-year provision of subsection (6). No statutory distinction was made between death due to medical negligence and death due to any other negligence. The accrual of a wrongful death cause of action occurred at time of death, rather than notice of the defendants’ negligence.

This general scheme of a four-year limit and two-year limit was maintained and continued substantially unchanged for a number of years through the late 1960’s last appearing as Section 95.11(4) and (6), Florida Statutes (1969). A change occurred in the 1971 legislative session via Laws of Florida 71-254. Section 95.11(6) was amended as follows:

(6) Within two years — An action by another than the state upon a statute for a penalty or forfeiture; an action for libel, slander, assault, battery or false imprisonment; an action arising upon account of an act causing a wrongful death; an action to recover damages for injuries to the person arising from any medical, dental, optometric, [podiatric] or chiropractic treatment or surgical operation, the cause of action in such case not to be deemed to have accrued until the plaintiff discovers, or through use of reasonable care should have discovered, the injury.

This Act, Section 95.11(6), Florida Statutes (1971), took effect July 1, 1972, and removed medical malpractice from the prior four-year limitation and placed it within the two-year limitation. This amendment was the first “notice accrual” statute in that the cause of action for injuries from medical malpractice was deemed to have accrued only when the plaintiff had notice of the injury. A reading of subsection (6) quoted above leads us to the conclusion that there was no intention to include wrongful death within the Notice accrual provisions applicable to injuries from medical treatment. Thus, the limitation provided for wrongful death remained two years from death. See St. Francis Hospital Inc. v. Thompson, 159 Fla. 453, 31 So.2d 710 (1947); Fletcher v. Dozier, 314 So.2d 241 (Fla. 3d DCA 1975); Walker v. Beech Aircraft Corp., 320 So.2d 418 (Fla. 3d DCA 1975); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2nd DCA 1976); and Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975). As stated in Fletcher v. Dozier at 241 and 242, “The cause of action accrues and the statute commences to run on the date of such death.” This is the statute which was in effect on January 14,1973, the date of death involved in the instant case.

An amendment to Section 95.11(6), Florida Statutes (1971), occurred in Laws of Florida 73-333, effective August 5, 1973, when the word “podiatric” was removed, and the word “chiropodial” substituted.

The next substantive amendment applicable to medical malpractice occurred in the 1974 legislative session as Laws of Florida 74-382, effective January 1, 1975. This change appeared as Section 95.11(4)(a) and (c), Florida Statutes (Supp.1974), and accomplished a substantial re-wording of the general statute of limitations section. The subsections in question were 95.11(4)(a) and (c), providing:

(4) Within two years.—
(a) An action for professional malpractice, whether founded on contract or tort; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence; provided, however, that the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional;
sfc sf: ‡ ‡ *
(c) An action for wrongful death.

Under the 1974 amendment the two-year limitation for wrongful death was maintained and the accrual provisions regarding medical malpractice were changed from discovery of the “injury” to discovery of the “cause of action.” This amendment was effective for two weeks before January 14, 1975, which was the point in time two years from the date of death of plaintiffs’ minor son herein. If this statute had the effect of extending the statute of limitations, then plaintiffs should be able to take advantage of it. This statute containing the words “cause of action” was in existence for only four months and 20 days.

In the 1975 legislative session, Laws of Florida 75-9, effective May 20, 1975, was passed and again substantially revised the statute of limitations on medical malpractice. In accordance with this amendment Section 95.11(4)(b) and (d), Florida Statutes (1975), provided as follows:

95.11 Limitations other than for the recovery of real property. Actions other than for recovery of real property shall be commenced as follows:
(4) WITHIN TWO YEARS
(b) An action for medical malpractice shall be commenced within two years from the time the incident occurred giving rise to the action, or within two years from the time the incident is discovered, or should have been discovered with the exercise of due diligence, provided, however, that in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued. An action for medical malpractice is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the four-year period, the period of limitations is extended forward two years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed seven years from the date the incident giving rise to the injury occurred.
* * # # # *
(d) An action for wrongful death.

Once again, the notice accrual provision was changed; the words “cause of action” were stricken and the words “incident or occurrence” substituted. For the first time, a definition of medical malpractice was specifically stated and included death although the two-year wrongful death subsection (d) remained unchanged. This statute places a four-year limitation (not extension) on the bringing of the action from the original incident regardless of when the incident is discovered or a seven-year limitation if fraudulent concealment is involved. There had been no such four-year or seven-year limitations in the prior statutes.

With this statutory history, when did plaintiffs’ claim for death resulting from medical malpractice accrue? The statutes, as indicated above, have continually redefined the starting point. In summary, Section 95.11(4) and (6), Florida Statutes (1969), did not specifically mention medical malpractice and it was thus within the four-year limitation of subsection (4). While the statute of limitations for wrongful death has remained at two years throughout, the accrual provision regarding medical malpractice has been repeatedly changed. The words, “injury”, “cause of action”, and “incident”, have been used at various times.

With the above evolution in mind, did the Legislature mean to include “death” within the notice accrual provisions of the medical malpractice statutes of limitations before the clear rewording of Section 95.11(4)(b), Florida Statutes (1975), which specifically included death? We answer this question in the negative. We conclude that death due to medical malpractice was not included within the notice accrual provision of Section 95.11(6), Florida Statutes (1973), nor within the notice accrual provision of Section 95.11(4)(a), Florida Statutes (Supp. 1974). We thus hold that prior to May 20, 1975 (the effective date of Laws of Florida 75-9), a cause of action for death due to medical malpractice accrued as of the date of the death and not when plaintiff became aware of the medical negligence causing death. This was the law when the death occurred herein and it was not changed before the cause of action became time-barred on January 15, 1975. It is thus unimportant whether the 1973 or the 1974 statutes are applied as they do not extend the limitation period and the claim was not filed within two years of death. Appellants urge we adopt the reasoning of Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979), and apply Section 95.11(4)(b), Florida Statutes (1975), in a retroactive fashion. We decline to do so. Glass involved a death on May 29, 1974, and two years from this date was May 29, 1976 — well after the effective date of Section 95.11(4)(b), Florida Statutes (1975). Here the two years ran before the effective date of the 1975 amendment.

The case of Brooks v. Cerrato, 355 So.2d 119 (Fla. 4th DCA 1978), involved a medical malpractice injury claim where the act of malpractice occurred on February 8, 1973. In an opinion written by Judge Alderman, this court applied Section 95.11(6), Florida Statutes (1973). We believe that the same statute is applicable here. In Brooks one question was whether Section 95.11(4)(a), Florida Statutes (Supp.1974), should be applied retroactively. Brooks held Section 95.11(4), Florida Statutes (Supp.1974), should not be given retroactive application to medical malpractice cases and that the saving clause (Section 95.022) was no indication of a retroactive intent regarding medical malpractice. We adhere to this ruling and recede from the holding of Nash v. Asher; 342 So.2d 1038 (Fla. 4th DCA 1977), to the extent it is contrary.

We thus hold that Section 95.11(6), Florida Statutes (1973), applies to this case and that the cause of action for death due to medical malpractice herein accrued at the time of the death. In doing so we point out we would prefer the different result reached in Glass v. Camara, supra, under Section 95.11(4)(b), Florida Statutes (1975), wherein death was expressly included within the definition of medical malpractice. This 1975 statute was the first time death was so included and we are bound by this legislative expression. The complexity of the situation is aggravated by the numerous changes in the medical malpractice statute. The Legislature seemingly reacts session by session to the pressures of the legislatively recognized medical malpractice crisis.

The law started with a four-year limitation on negligence including medical negligence. It was then changed to a two-year limitation on medical malpractice with the two years running from the date plaintiff should have discovered the “injury.” This created an open-ended statute without apparent limit on discovery. It was then changed to a two-year limit from the date plaintiff should have discovered the “cause of action.” Again, there was no time limit on discovery. In all of these versions, death was not included in the definition of medical malpractice and “wrongful death” was always limited to two years from death by a separate provision. The statute has now been changed to two years from discovery of the “incident” with an outside four-year limit unless fraudulent concealment is involved where a maximum of seven years is set. In this latest enactment death is at last expressly included in the definition of medical malpractice. Appellant simply cannot rely on this latest statute and the argument for retroactivity is without merit.

Yet to be discussed is the issue of fraudulent concealment. Plaintiffs contend they filed their claim shortly after becoming aware of the malpractice and that their delay was due to the doctors’ concealment. Proctor v. Schomberg, 63 So.2d 68 (Fla.1953), and Nardone v. Reynolds, 333 So.2d 25 (Fla.1976) establish the general proposition that fraudulent concealment of negligence by a physician would toll any applicable statute of limitations. This is a traditional concept of law and has been specifically held applicable in medical malpractice cases. Brooks v. Cerrato, supra, and Glass v. Camara, supra. These cases place the burden on the defendant in a summary judgment to negate any possible issue of fact as to when plaintiff became aware of the cause of action. Here, though, the cause of action accrued at death and the claim is time-barred unless the statute was tolled. Plaintiffs argue for the first time on appeal that defendants fraudulently concealed their malpractice and that this should toll the statute. Obviously, the defendants could not have negated fraudulent concealment since they had no idea it was an issue in the case. The complaint did not mention the fraudulent concealment and did not allege when plaintiffs became aware of the alleged malpractice. The defendants’ answer, affirmative defense of statute of limitations and motion for summary judgment asserted that plaintiffs’ cause of action accrued on January 14, 1973, the date of death. Plaintiffs did not file a Reply to avoid this defense.

If plaintiffs wished to rely on a tolling of the statute of limitations under the traditional concepts of fraudulent concealment enunciated in the above cited cases, then a Reply should have been filed raising the issue. There is nothing in the record before the trial court nor argued on this appeal indicating that the hospital/defendant was involved in the alleged concealment in any respect. We, therefore, affirm the summary judgment for the defendant, John F. Kennedy Memorial Hospital. As to the doctors/defendants the situation is distinguishable. Glass v. Camara, supra, and various authorities cited and discussed therein are clearly to the effect that a plaintiff seeking to avoid a statute of limitations in whole or part on the grounds of fraudulent concealment must reply to avoid the defendant’s assertion of the statute of limitations. Although we conclude that the summary judgment for the physicians/defendants was appropriate, we are compelled to consider whether an amendment might be proper under the rationale of Hart Properties, Inc. v. Slack, 159 So.2d 236 (Fla.1964), and Forte v. Tripp, 339 So.2d 698 (Fla. 3d DCA 1976), and numerous similar authorities.

The trial court was not presented with a formal request to amend to assert concealment as a reason for tolling the statute. There is considerable confusion among the authorities as to the respective burdens of pleading and proof in summary judgments based upon the statute of limitations. As indicated in Glass v. Camara, supra, the cases seem to reach different conclusions based upon the particular reason relied upon to toll an applicable statute of limitations. Therefore, under the particular circumstances presented here, we conclude that an amendment may be proper. Although we conclude that plaintiffs had the duty to file a reply, this may be cured by amendment. We thus hold that as to the defendants/doctors the matter is remanded for consideration and ruling on any amended pleadings which may be offered by plaintiffs in accordance with the foregoing on the issue of fraudulent concealment.

AFFIRMED IN PART, REMANDED FOR FURTHER PROCEEDINGS.

DAUKSCH, JAMES C., and SCHWARTZ, ALAN R., Associate Judges, concur.

      . The pleadings contained in the record on appeal state two dates as to the filing of the mediation claim. The date of January 13, 1977, is given, along with the date of January 18, 1977. There is no sworn support in the record for either date despite the fact that much argument is made about it in the motions and mem-oranda filed in the trial court. We accept the date of January 13, 1977, because this is the date all parties have argued in the briefs before this court.

      . Both sides engage in arguments that Section 95.11(4)(b), Florida Statutes (1975), effective May 20, 1975, extended the statute of limitations on medical malpractice death cases to four years and question whether this statute should be given retroactive effect. Plaintiffs also argue this statute’s application to their contention that the defendants/doctors fraudulently concealed their negligence. There is simply no four-year extension within this statute. Instead the statute limits the period for discovery of the incident to four years.

      . It is not completely clear whether Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979), applied Section 95.11(4)(a), Florida Statutes (Supp.1974), effective January 1, 1975, or Section 95.11(4)(b), Florida Statutes (1975), effective May 20, 1975. Although the opinion states that the later statute is being applied, the opinion quotes from the earlier 1974 statute and relies specifically on the language “that the period of limitations shall run from the time the cause of action [was] discovered or should have been discovered” which is contained in the 1974 statute [Section 95.11(4)(a), Florida Statutes (Supp.1974)], rather than in the later 1975 statute.

      . This holding has been previously announced in Garofalo v. Community Hospital, 382 So.2d 7221 (4th DCA 1980).


author: ORFINGER, Judge.

text:
    F. P. CONCANNON and Helena H. Concannon, his wife, Appellants, v. William V. ST. JOHN, Jr., Appellee.
    No. MM-353/T1-31.
    District Court of Appeal of Florida, Fifth District.
    May 28, 1980.
    Rehearing Denied June 24, 1980.

      Jefferson W. Clark, New Smyrna Beach, for appellants.
    Vincent M. Mangino of Hagglund, Mangi-no & Hagglund, New Smyrna Beach, for appellee.
   ORFINGER, Judge.

This appeal questions the final judgment below finding the appellee to be the owner of the liquor license whose ownership is disputed.

It is clear from the record that appellants were the owners of the liquor license in question and transferred it to appellee’s predecessor under a lease of the premises and by virtue of lease terms which clearly stated that the license belonged to appellants. It is equally clear that when appellee purchased the business from the original lessee’s estate and entered into a new lease with appellant, he paid appellant nothing for the license. His only payments to appellant were the periodic rent payments called for under the lease. The only consideration paid by appellee was to the personal representative of the former owner of the business, who clearly did not own the liquor license and therefore could not sell it. Appellee bought the business and leased the premises, and secured a transfer of the license under an agreement to reassign it at the termination of the lease. Although there is an ambiguity in the agreement to reassign, the particular language in question was drafted by appellee’s attorney, so they are construed against appellee as the drafter thereof. American Agronomics Corporation v. Ross, 309 So.2d 582 (Fla. 3d DCA 1975).

Appellant in answering the amended complaint clearly raised the issue of lack of consideration for the transfer of ownership of the liquor license. A statutory transfer of a liquor license to satisfy the records of the State Beverage Department is not a transfer of property rights in the license to the purchaser of a business Wright v. Cade, 349 So.2d 833 (Fla. 1st DCA 1977), absent the usual incidents of a true sale, which includes consideration. Because the evidence is clear that the transfer of the liquor license was not supported by consideration to appellant and because the proper interpretation of the agreement in the context supports only a lease, not a sale of the license, we must reverse the judgment.

The judgment is reversed and this cause is remanded for the entry of judgment for appellant.

REVERSED and REMANDED.

DAUKSCH, C. J., concurs.

CROSS, J., dissents.


author: PER CURIAM.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Juan PEREZ et al., Appellees.
    Nos. 79-215, 79-1252.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Rehearing Denied July 11, 1980.

      Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellees.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The final judgment on insurance coverage, which was entered below after a non-jury trial and is now under review by this appeal, is affirmed upon a holding that:

1. There was insurance coverage for the incident sued upon under the subject insurance policy because it is properly inferable from this record that the insured defendant [Maria Otero] did not intend to harm the plaintiff’s decedent [Johnny Perez], but only to frighten him, when she fired her gun and accidently, recklessly and through culpable negligence killed him; Cuna Mutual Casualty Co. v. Adamides, 334 So.2d 75, 76 (Fla. 3d DCA 1976); Grange Mutual Casualty Co. v. Thomas, 301 So.2d 158 (Fla. 2d DCA 1974).

2. The insured defendant’s conviction for second degree murder [§ 782.04(2), Fla.Stat. (1979)] based on the subject incident does not defeat the insurance coverage herein as the law is well-settled that recklessly firing a gun into a crowd of people constitutes second degree murder when a person is killed thereby even though, as here, the defendant has no intent to hit or kill anyone. Golding v. State, 26 Fla. 530, 8 So. 311 (1890); 16 Fla.Jur.2d “Criminal Law” § 1059 (1979); LaFave and Scott, Criminal Law 543 (1972).

3. The insured defendant’s failure to cooperate did not result in substantial prejudice to the defendant insurer [United States Fidelity & Guaranty Co.] so as to defeat coverage under the subject insurance policy because the defendant insured’s testimony could not possibly have been beneficial to the said insurer; the record clearly demonstrates that such testimony would have established the insured defendant’s negligence in this cause and, accordingly, the presence of insurance coverage under the subject policy. Ramos v. Northwestern Mutual Insurance Co., 336 So.2d 71, 75 (Fla.1976).

4. The defendant insured’s testimony given at the criminal proceedings herein was properly admitted at the non-jury trial by the trial court on the issue of whether the defendant insurer was prejudiced by the defendant insured’s non-cooperation as such evidence was relevant on the subject issue and was not otherwise inadmissible as hearsay; such testimony was not admitted to prove the truth of the matter stated, but only to show that such testimony was, in fact, the insured’s position in this cause. Pauline v. Lee, 147 So.2d 359, 363 (Fla. 2d DCA 1962); § 90.801(l)(c), Fla.Stat. (1979).

5. No other reversible error is shown on this record. The defendant insurer’s “precautionary” appeal from the final judgment on damages after a subsequent non-jury trial in this cause is also affirmed as no point on appeal is directed to such judgment.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Bismark DIAZ and Bis D. Corporation, etc., Appellants, v. Osmel R. RODRIGUEZ, et ux., Appellees.
    No. 79-1215.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    As Modified On Denial of Rehearing July 7, 1980.
    Daniels & Hicks and Mark Hicks; Roger A. Bridges; Sams, Gerstein & Ward and Murray Sams, Jr., Miami, for appellants.
    Keith, Mack, Lewis & Allison and John R. Allison, III, and Kim R. Blackman, Miami, for appellees.
    Before SCHWARTZ and DANIEL PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The appellants-defendants claim error in the fact that allegedly relevant testimony of a witness they called at trial was not presented to the jury. We do not reach the merits of this contention because the issue was not properly preserved below. The record shows that the defendants acquiesced to the trial court’s preliminary indication of a ruling by voluntarily withdrawing the witness from the stand; 3 Fla. Jur.2d Appellate Review 292-293 (1978), and, more important, that they did so without informing the court that they wished to elicit the particular testimony now in question, much less indicating the grounds upon which that evidence was deemed pertinent and admissible. Thus the trial court was never given an opportunity at the trial to rule on the contentions which are now before us. Since this is true, under familiar principles of appellate review this court may not consider them either. 3 Fla.Jur.2d Appellate Review § 92 (1978).

The appellants suggest that they made the required offer of proof and showing of admissibility in the post-trial proceedings. This was too late. The very purpose of preserving error below by affording the trial court a chance to consider the particular issue is specifically to obviate a new trial. Since the jury may well have rendered the same verdict even if the court had ruled favorably on that issue, allowing a party to present a new claim after the jury has ruled against him would amount to an impermissible sandbagging of his theretofore successful opponent — and the trial judge as well. See Corbett v. Dade County Board of Public Instruction, 372 So.2d 971, 974-75, n.3 (Fla.3d DCA 1979). It follows that any initial attempt to call a matter to the court’s attention subsequent to the trial, so that another one would be required if the trial judge then agreed, is necessarily untimely. See Bishop v. Watson, 367 So.2d 1073 (Fla.3d DCA 1979) (timely objection rule applicable to motion for new trial).

Affirmed.

      . The timeliness of a proffer of evidence which has been excluded at trial is not involved here. Different considerations may apply to that issue, since the function of such a proffer is solely to demonstrate to the appellate court that the litigant has been harmed by a trial court ruling. See 3 Fla.Jur.2d Appellate Review § 93 (1978). The problem in the case at bar is that the trial judge never made a ruling at all on the now-critical issues.


text:
    Vincent LANDIS, Appellant, v. Patricia Wheeler LANDIS, Appellee. Patricia Wheeler LANDIS, Appellant, v. Vincent LANDIS, Appellee.
    Nos. 79-1403, 79-1607.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Rehearing Denied July 11, 1980.
    Edward Schroll, Miami, for Patricia Wheeler Landis.
    Abrams & Abrams and Ira Abrams, David A. Rosenblatt, Miami, for Vincent Landis.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

By this consolidated appeal the husband and the wife seek review of portions of the final judgment of dissolution of their marriage, alimony and property settlement provisions and orders denying payroll deductions, costs and attorney fees.

We have carefully considered the points on appeal in the light of the record, briefs and argument of counsel and have concluded that no reversible error has been demonstrated. See Williamson v. Williamson, 367 So.2d 1016 (Fla.1979); Caidin v. Caidin, 367 So.2d 248 (Fla.3d DCA 1979); Hausman v. Hausman, 330 So.2d 833 (Fla.3d DCA 1976).

Affirmed.


text:
    Joseph MATRASCIA and Josephine Matrascia, Appellants, v. The STATE of Florida, Appellee.
    No. 79-1555.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Rehearing Denied July 11, 1980.
    Richard B. Marx, Miami, for appellants. Jim Smith, Atty. Gen., and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HENDRY and NESBITT, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Garmise, 382 So.2d 769 (Fla.3d DCA 1980); State v. Matera, 266 So.2d 661 (Fla.1972); State v. Mears, 256 So.2d 217 (Fla.3d DCA 1972), and Gammage v. State, 162 So.2d 529 (Fla.3d DCA 1964).


text:
    The CRICKET CLUB, INC., Appellant, v. Frances L. BASSO, Appellee.
    No. 79-2061.
    District Court of Appeal of Florida, Third District.
    June 3, 1980.
    Rehearing Denied July 11, 1980.

      Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellant.
    Martin D. Kahn, North Miami, for appel-lee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

In this negligence action The Cricket Club, Inc., defendant in the trial court, seeks reversal of a default judgment and a $15,500 money judgment for the plaintiff, Frances L. Basso.

Ms. Basso slipped and fell on the premises of the defendant-appellant, The Cricket Club, Inc. (the Club) and as a result sustained injuries to her foot. She filed the present negligence action against the Club which was properly served on January 5, 1979, with a summons and complaint through an employee, Berna Cosner. As one of her functions, Berna Cosner signs for all summonses and complaints served upon the Club and then forwards them to Joel Cohen, resident agent, who then contacts the Club’s attorney. However, the instant complaint and summons were lost or misfiled and the Club filed no responsive pleading. Consequently, Ms. Basso filed a motion for entry of a default which was entered on February 1, 1979. Thereafter a copy of a notice for trial filed by Ms. Basso was mailed to the Club on February 19. Sometime in March, the Club became aware of the pending action and on April 6 filed a motion to set aside default on the ground of excusable neglect. Accompanying the motion was an answer alleging contributory negligence and the affidavit of Berna Cos-ner who stated therein that as a result of an oversight the summons and complaint were lost or misfiled. After hearing argument of counsel, the trial court denied the motion to set aside default. The cause then proceeded to a jury trial on the issue of damages. A final judgment for $15,500 was entered for Ms. Basso in accordance with the jury verdict. The Club perfected this appeal from the final judgment.

For the first point on appeal the Club argues that the court erred in denying its motion to set aside default. We cannot agree.

The facts of each case are of singular importance in determining whether or not a motion to set aside default judgment should be granted. Edwards v. City of Fort Walton Beach, 271 So.2d 136 (Fla.1972). It is the duty of the trial court, not the appellate courts, to make the determination of whether or not the facts constitute excusable neglect sufficient to excuse compliance with the rules. Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972). Further, the discretion reposed in the trial judge by Fla.R. Civ.P. 1.540 is of the broadest scope and in order to reverse a judge’s ruling thereunder, there must be a showing of a gross abuse of discretion. Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So.2d 1084 (Fla. 3d DCA 1977). After a review of the record in the instant case, we conclude that the Club has failed to demonstrate a gross abuse of discretion on the part of the trial court in denying its motion to set aside default. See, e. g., Schwab & Co., Inc. v. Breezy Bay, Inc., 360 So.2d 117 (Fla. 3d DCA 1978).

The Club also urges as reversible error the refusal to permit Ms. Basso to be deposed by its attorney.

After the entry of the default and the denial of its motion to set aside default, the Club commenced discovery as to damages through written interrogatories propounded to Ms. Basso, motion for compulsory physical examination and request for deposition. After a hearing, the court ordered that Ms. Basso answer the interrogatories and submit to a physical examination, but denied the Club’s request to depose her. The court also granted the Club’s motion to produce.

Although a defendant after default has a right to participate in and defend at the trial on the issue of damages, the trial court in treating discovery matters has wide discretion which the appellate court will not ordinarily disturb. Abelson v. Bosem, 329 So.2d 330 (Fla. 3d DCA 1976); Burroughs Corporation v. White Lumber Sales, Inc., 372 So.2d 122 (Fla. 4th DCA 1979). The Club having obtained the desired information by the alternative methods of discovery through written interrogatories, production of such documents as medical bills and a compulsory physical examination, we find no abuse of discretion in the denial of the Club’s request to depose Ms. Basso. Compare West v. Food Fair Stores, Inc., 305 So.2d 280 (Fla. 3d DCA 1974). Thus, this point lacks merit.

Affirmed.

      . The Club participated in the trial.

      . See Stevenson v. Arnold, 250 So.2d 270 (Fla.1971).


author: WENTWORTH, Judge.

text:
    Herbert DUPREE, Appellant, v. STATE of Florida, Appellee.
    No. MM-302.
    District Court of Appeal of Florida, First District.
    June 4, 1980.
    Rehearing Denied July 3, 1980.
    Michael J. Minerva, Public Defender, and Harold W. Long, Jr., Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   WENTWORTH, Judge.

Dupree raises two points in his appeal of a conviction for two counts of child abuse. First, he argues that there was not enough evidence to convict him and that the trial judge should have granted his motion for judgment of acquittal. Second, he urges that the trial judge erred in deferring his sentence under count two from day to day and term to term until further notice.

We find no error in the record as to his first point on appeal. We therefore affirm the trial judge’s denial of the motion for judgment of acquittal.

However, we find that the trial judge erred in deferring sentencing under count two. The record reveals that the judge did not defer sentencing for purposes of probation or for matters arising after the verdict and judgment. Dupree is entitled to have the charges against him disposed of expeditiously and not be held in a state of limbo. MacArthur v. State, 330 So.2d 548 (Fla. 1st DCA 1976).

Accordingly, the judgment and sentence on the first count are affirmed. The deferral of sentencing as to count two is reversed, and this case is remanded with directions to make an appropriate disposition thereof.

ROBERT P. SMITH, Jr. and ERVIN, JJ., concur.


text:
    CITY OF TAMPA, Appellant, v. Buddy W. MORALES, Appellee.
    No. PP-370.
    District Court of Appeal of Florida, First District.
    June 4, 1980.
    Rehearing Denied July 9, 1980.
    James A. Sheehan, Tampa, for appellant.
    Joseph E. Melendi, Tampa, for appellee.
   WENTWORTH, Judge.

The self-insured employer appeals, and the claimant cross-appeals, a worker’s compensation order which we affirm except as to the award of 80% permanent partial disability benefits based upon diminution of wage earning capacity. The claimant's injury precludes his continued employment as a fireman, and he has unsuccessfully attempted to continue his part-time employment as an automotive mechanic. However, although the record evidence does not indicate that less strenuous employment is necessarily beyond his capabilities, the claimant has made no other effort to test his employability on the open labor market. The claimant’s failure to adequately seek employment within his physical capabilities precludes any consideration of wage earning capacity loss, and the compensation awarded should have been based only upon the anatomic impairment sustained. Exxon Co. U.S.A. v. Alexis, 370 So.2d 1128 (Fla. 1978); Mahler v. Lauderdale Lakes National Bank, 322 So.2d 507 (Fla.1975). The judge of industrial claims found that the claimant in the present case has sustained an anatomic impairment of 18% of the body as a whole; the order appealed is amended so as to award compensation for an 18% permanent partial disability.

Accordingly, the order appealed is affirmed as amended.

ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.


text:
    Sheila DENMARK, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a corporation, Appellee.
    No. 79-1767.
    District Court of Appeal of Florida, Second District.
    June 4, 1980.
    Rehearing Denied June 25, 1980.
    Craig M. Spanjers of Stanley, Wines, Williams & Smith, P.A., Auburndale, for appellant.
    Donald G. Jacobsen of Lane, Massey, Trohn, Clarke, Bertrand & Smith, P.A., Lakeland, for appellee.
   PER CURIAM.

We affirm, as we did in Johns v. Nationwide Mutual Insurance Company, 375 So.2d 320 (Fla.2d DCA 1979), based on the reasoning in Williams v. Leatherby Insurance Company, 338 So.2d 70 (Fla.3d DCA 1976), cert. denied, 345 So.2d 429 (Fla.1977). We cannot, as appellant urges, subscribe to the view that in every instance in which a motor vehicle is inoperable, its owner need not maintain security as required by Section 627.733, Florida Statutes (1977). See Sherman v. Reserve Insurance Company, 350 So.2d 349 (Fla. 4th DCA 1977); nor can we formulate, as both parties request, a hard and fast rule applicable to all situations involving the question of whether security is required. That question is essentially one of fact and for the trial court to resolve. Compare Tapscott v. State Farm Mutual Automobile Insurance Company, 330 So.2d 475 (Fla. 1st DCA 1976), and Ward v. Florida Farm Bureau Casualty Insurance Company, 375 So.2d 898 (Fla.1st DCA 1979).

AFFIRMED.

RYDER, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    BAY CADILLAC, INC., and Lynn Underwriting Company, Appellants, v. Luther Ray INGRAM, Appellee.
    No. QQ-436.
    District Court of Appeal of Florida, First District.
    June 6, 1980.
    Rehearing Denied July 9, 1980.
    Kenneth L. Olsen of Miller, McKendree & Somers, Tampa, for appellants.
    Tom J. Johnson, Jr., Tampa, for appellee.
   PER CURIAM.

The claimant, a skilled mechanic, suffered compensable accidents in 1976 and 1977. As a result of the latter accident he was initially treated by Dr. Vega for cervical strain and, in light of continued complaints, referred to Dr. Gipson who prescribed the drug Fiorinal. In November of 1977 the claimant returned to Dr. Vega who, on November 22, advised him to return to full-time employment. He was discharged on November 25, with the notation that he had suffered no permanent injury. In March of 1978 he went to Dr. Wilson for an orthopedic evaluation. It was determined that electromyographic studies would be useful and he was given a list of several doctors who were authorized by the carrier to perform the studies. Included in this list was the name of Peter B. Dunne. The claimant, however, opted to have Dr. Arthur Pasach’s office do the studies and there was no further request for Dr. Dunne’s services. The judge’s finding that the carrier specifically authorized treatment by Dr. Dunne is not supported by the record. Dr. Dunne’s authorization was for the limited purpose of performing the electro-myographic studies. Based upon our conclusion that Dr. Dunne’s services were unauthorized, the order under review is reversed insofar as it directs the carrier to pay for Dr. Dunne’s services, pharmaceuticals prescribed by the doctor and the medical bills resulting from hospital confinement by the doctor.

We find it necessary also to reverse the judge’s finding of temporary total disability commencing November 11, 1977. The order states: “It is Dr. Dunne’s opinion that Mr. Ingram is temporarily totally disabled and in need of medical treatment . .” Here again the record does not support the finding. We have reviewed Dr. Dunne’s testimony, and it is clear that he merely placed limitations upon claimant’s ability to function as an automobile body repairman. He never opined, as found by the judge, that the claimant was temporarily totally disabled. Claimant gave as his reasons for not returning to work his use of the drug Fiorinal and advice from his doctors. There is absolutely no showing that claimant’s use of medication was so incapacitating as to totally preclude employment. The order is reversed as to this point.

According to Doctors Gilberto E. Vega and Albert A. Wilson, the November 1, 1977 accident resulted in a cervical strain (a pulled muscle or tendon between the neck and shoulder blades). Dr. Vega testified that the claimant attained maximum medical improvement on November 25, 1977. There is no showing that there was any residual from the 1977 accident that would require future medical treatment. The lower back problems were not shown to have originated from, or been exacerbated by, the 1977 accident. The award for future medical treatment and the award of an attorney’s fee are accordingly reversed.

SHAW, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting:

I dissent. Crews v. Town of Bay Harbor Islands, 378 So.2d 1265 (Fla. 1st DCA 1979).


text:
    Paul A. TOPPINO, Appellant, v. SHAFER & MILLER, INC., a Florida Corporation, et al., Appellees.
    Nos. 79-800, 79-801.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Rehearing Denied July 11, 1980.
    Richard M. Gale, Ronald S. Golub and Alexander S. Gordon, Miami, for appellant.
    Rosenberg, Rosenberg, Reisman & Glass and James E. Glass, Welbaum, Zook, Jones & Williams and R. Earl Welbaum, Miami, Albert I. Caskill, Key Largo, Tobin, Bayer & Jacobson and Theodore R. Bayer, John M. Mac Daniel, Miami, for appellees.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Strawgate v. Turner, 339 So.2d 1112 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); York Corp. v. Brock, 405 F.2d 759 (5th Cir. 1969); Century Trust Co. of Baltimore v. Allison Realty Co., 105 Fla. 456, 141 So. 612 (1932); R. K. Cooper Builders, Inc. v. Free-Lock Ceilings, Inc., 219 So.2d 87 (Fla. 3d DCA 1969); Overseas Equipment Co. v. Aceros Arquitectonicos, 374 So.2d 537 (Fla. 3d DCA 1979), and cases cited; Sonson v. Nelson, 357 So.2d 747 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 891 (Fla.1978).


author: PER CURIAM. SCHWARTZ, Judge

text:
    INSURANCE COMPANY OF NORTH AMERICA, a Pennsylvania Corp., Appellant, v. ELECTRIC POWER & SERVICE, INC., a Florida Corporation, Appellee.
    No. 79-1600.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellant.
    John H. Duhig, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The final order under review, which awards attorneys fees for the plaintiff subcontractor [Electric Power & Service, Inc.] in its suit against the contractor [Scope Construction Company] and its surety insurer [Insurance Company of North America] under the subject contractor’s performance bond, is reversed upon a holding that no final judgment on the merits was rendered by the trial court in the plaintiff’s favor, [the lawsuit was, in fact, settled between the parties] and, under the applicable law, the absence of such a final judgment precludes the award of attorneys fees herein under Sections 627.756, 627.428(1), Florida Statutes (1979). American Home Assurance Co. v. Keller Industries, 347 So.2d 767 (Fla.3d DCA 1977). Upon this reversal, the cause is remanded to the trial court with directions to vacate the order under review and deny the application for attorneys fees.

Reversed and remanded.

SCHWARTZ, Judge

(specially concurring).

I agree that reversal is required by our decision in American Home Assurance Co. v. Keller Industries, Inc., 347 So.2d 767 (Fla.3d DCA 1977), cert. denied, dismissed, 360 So.2d 1249 (Fla.1978), 367 So.2d 1124 (Fla.1979). Were the issue an original one in this district, however, I would follow the contrary views well-expressed in the dissenting opinion of Judge Hendry in Keller and in the conflicting cases of Gibson v. Walker, 380 So.2d 531 (Fla.5th DCA 1980) and Cincinnati Ins. Co. v. Palmer, 297 So.2d 96 (Fla.4th DCA 1974).


text:
    Audrey V. McLEAN, Appellant-Cross Appellee, v. Ralph E. McLEAN, Jr., Appellee-Cross Appellant.
    Nos. 79-1680, 79-2256 and 80-176.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.

      Bartel & Shuford and Stanley Jay Bartel, Miami, for Audrey V. McLean.
    Frishman & Miller and Henry M. Cain, Coral Gables, for Ralph E. McLean, Jr.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

No abuse of discretion has been demonstrated by either party in the trial court’s determinations (a) awarding two years of rehabilitative, rather than permanent alimony; (b) as to the amount of that alimony; (c) denying the wife’s claim to a “special equity” in the husband’s interest in the marital home; (d) fixing the amount of the wife’s attorney’s fees and ordering that the husband pay one-half of that sum and (e) allocating responsibility between the parties for the expenses of a child psychologist. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Ingram v. Ingram, 379 So.2d 955 (Fla.1980); Rosenberg v. Rosenberg, 371 So.2d 672 (Fla.1979), adopting dissenting opinion, 352 So.3d 867 (Fla.3d DCA 1977); Herzog v. Herzog, 346 So.2d 56 (Fla. 1977); Ball v. Ball, 335 So.2d 5 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Creel v. Creel, 378 So.2d 1251 (Fla.3d DCA 1979). The final judgment and the post-final judgment orders under review are therefore

Affirmed.

      . We specifically note that this provision is subject to modification upon a timely and proper showing under Section 61.14, Florida Statutes (1979). Cantor v. Cantor, 306 So.2d 596 (Fla.2d DCA 1975).


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

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. William B. BURNETTE et al., Appellees.
    No. NN-91.
    District Court of Appeal of Florida, First District.
    June 11, 1980.

      H. Reynolds Sampson, Gen. Counsel, and Margaret-Ray Kemper, Tallahassee, for appellant.
    Cary A. Hardee, of Davis, Browning & Hardee, Madison, for appellees.
   ROBERT P. SMITH, Jr., Judge.

The Department appeals from a circuit court judgment enjoining it within 90 days either to condemn appellee Burnette’s Madison County tract of 100 acres, held unconstitutionally taken without compensation, or to end the water drainage which effected the taking. The trial court found the Department took Burnette’s land by draining water down upon it from a point on State Road 10, north of the property, where for years previously pipes and culverts carried drainage in the opposite direction. We find that Burnette failed to prove that the undoubted damage to this land amounts to a taking of it, for which the whole must be condemned and paid for; but we affirm judgment insofar as it enjoins the Department’s continued burdening of Burnette’s property.

On conflicting evidence the trial court found that the natural drainage path for land immediately surrounding State Road 10 (Ú.S. Highway 90), within a half-mile west of Madison, was and is northward under the highway and across property now occupied by North Florida Junior College. Years ago drainage was carried under the highway by a clay pipe culvert, which was replaced in 1923 by a larger concrete culvert. In 1956 that section of the highway was rebuilt slightly to the south, and two pipes were placed under the new highway segment to continue draining water from south of the highway northward through the old culvert in the old pattern. Sometime between 1956 and 1969, those northward drainage courses were plugged with concrete, apparently to permit the building of North Florida Junior College, where drainage previously flowed. That action stopped the northward drainage and caused ponding immediately south of the highway. Then, in 1969, the Department completed and systematized the 180° reversal of drainage by ditching an easement from the highway 500 feet south toward the northern boundary of the subject property. During the same project the Department added more drainage to this system through a 416-foot long 54-inch concrete culvert along the south side of State Road 10, which carries the runoff from 103 acres of improved land in municipal Madison.

Appellee Burnette couched his complaint against the Department in terms of a constitutional “taking.” The final judgment of the circuit court likewise is predicated on a finding that the diversion of drainage in such substantial quantities “constitutes a permanent taking without full compensation.” The characteristics of such a “taking” are variously stated by the authorities as “a permanent invasion of land amounting to an appropriation,” different in degree or character from “damage to property,” and substantially depriving the owner of the land’s beneficial use, as contrasted with “merely impairing] its use.” See Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663, 669 (Fla.1979); Arundel Corp. v. Griffin, 89 Fla. 128, 103 So. 422 (1925); Kendry v. State Road Department, 213 So.2d 23, 27 (Fla. 4th DCA 1968), cert. den., 222 So.2d 752 (Fla.1969); Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); Thompson v. Nassau County, 343 So.2d 965 (Fla. 1st DCA 1977); Poe v. State Road Department, 127 So.2d 898 (Fla. 1st DCA 1961); City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. 1st DCA 1964), cert. den., 172 So.2d 597 (Fla.1965).

There is no doubt that the Department’s reversal of the drainage flow from north to south imposes a substantial burden on the subject property. As the trial court said in part, supra fn. 4, the drainage “has interfered with the intended use or uses of the premises.” But the question is not whether these 100 acres are damaged or reduced in potential usage, but whether they have been permanently taken. On that issue, the evidence is that half of Burnette’s 100 acres are low and relatively more susceptible to collecting water after a heavy rain; half the acreage is high. This evidence is significant because Burnette assembled these 100 acres in order to build “a multi-family type townhouse development” called Country Club Villas, consisting of 376 townhouse units, some with a good view of the Madison Country Club and Golf Course to the west. Burnette wished to build 47 structures, each containing 8 townhouse units and producing a developed density of .29 acres per unit. But, he said, the potential flooding of half his acreage prevents development of Country Club Villas because development standards require construction above the reach of surface water which will rise once every 25 years, on the average, as the result of a “25-year six-hour storm”. In such a storm, Burnette’s engineer testified, an estimated 14 million gallons of water from the City of Madison will be introduced into the drainage system now including Burnette’s land. In such conditions, the 50 low acres will be flooded and access to the 50 acres'of high land will be limited. Thus, said Burnette, “I have been advised by my engineer to go no further with the project in any way whatsoever with that 50 acres gone.”

Burnette’s claim that his 100 acres is unconstitutionally “taken,” entitling him to full compensation in the light of the highest and best use of his property, is rendered problematic by the stark fact that Burnette did not own any of this property when, years ago, the drainage system carried surface water across lands to the north now occupied by North Florida Junior College; nor when the old pipes and culverts were plugged, before 1969, and the Department failed to relieve the blockage; nor in 1969, when the Department completed the drainage turnabout, extended it southward, and increased its volume. Burnette did not assemble this potential Country Club Villas until 1977. In May 1972 he bought 25 of these acres from Albert Coody, who previously fished and farmed his property; and in September 1977 Burnette took the remaining 75 acres from Fish and Game Improvement, Inc., a private corporation, in satisfaction of a money judgment which apparently was unrelated to this property.

Appellee Burnette thus assembled the Country Club Villas tract eight years after the Department began the construction which Burnette says effected a taking, and some five years after that construction was completed. Burnette made no investigation of drainage patterns before buying the Coody tract or before accepting title to the Fish and Game Improvement, Inc. tract in satisfaction of a judgment. Burnette’s assembly of this 100-acre tract in the face of the circumstances of which he now complains has these countervailing effects upon his claim that, by constitutional standards, his 100 acre tract has been “taken” and he should be wholly compensated for its aggregate value:

First, it appears that this land was permanently “taken,” if at all, some years before Burnette assembled it in September 1977. Burnette does not here claim that the 25 acres previously owned by Coody can no longer be used for fishing and farming, as Coody used them, nor that the 75 acre tract cannot now be used for similar purposes, or for whatever purposes (not shown) they were put to all those years, or indeed for low-density residential purposes. The premise for Burnette’s claim of a “taking” is that he is unable to develop his 100 acres, conceived of by him as economically indivisible (“I have been advised by my engineer to go no further with the project in any way whatsoever with that 50 acres gone”) as a relatively high density “multi-family type townhouse development.” Having failed to show that the property is permanently deprived of beneficial uses to which it was put at the time of the acts constituting the taking, Burnette renders inapplicable such decisions as State Road Dept. v. Tharp, 146 Fla. 745, 1 So.2d 868 (1941), in which the Supreme Court liberalized the “taking” test as necessary to protect the owner’s entitlement to undiminished use of, or full compensation for, a water mill which had been in use for more than 70 years when Department construction increased the water in the millrace, reducing the mill’s capacity by 50 percent. See also Ken-dry v. State Road Dept., supra, in which the court sustained an inverse condemnation action to protect or to secure full compensation for the taking of land rendered useless for existing residential purposes. Those and other like decisions do not stand for the proposition that governmental action which damages private property by eliminating one of many potential uses, but no existing use, constitutes a permanent taking of that property.

Second, Burnette’s premise of an indivisible 100-acre development, the frustration of which constitutes the “taking,” is faulty because the two components — a 25-acre parcel and a 75-acre parcel — were separate, not assembled, when the acts constituting the taking occurred and had the permanent effect Burnette contends they had. See Petroleum Products Corp. v. Clark, 248 So.2d 196 (Fla. 4th DCA 1971). To regard those parcels as hypothetically assembled when separately “taken,” so enriching every acre of the whole with the potential of its use in a larger, unified tract, violates the familiar principle that it is improper in eminent domain proceedings to speculate on what might be done to make land more valuable, but was not done at the time of taking, and then attribute that greater value to the land so hypothetically improved. Yoder v. Sarasota County, 81 So.2d 219 (Fla.1955); Coral-Glade Co. v. Board of Pub. Instr. of Dade County, 122 So.2d 587 (Fla. 3d DCA 1960). These lands having been taken, if at all, when they were separate tracts, they cannot be considered as unified for purposes of inquiring whether the injury was such as to constitute a taking.

And third, since the Department acts and omissions affecting the asserted taking occurred before 1972, when Burnette acquired the 25-acre tract, and long before 1977, when he acquired the 75-acre tract, it appears that the asserted taking was not from Burnette at all, but from the two prior owners, Coody and Fish and Game Improvement, Inc. It is they who were deprived of rights in property, if anyone was, and it is to them that the Constitution secures full compensation for the taking. Burnette, the subsequent purchaser and grantee, has no claim in inverse condemnation without assignments of his predecessors’ claims, which are not shown here. Marianna & B. R. R. Co. v. Maund, 62 Fla. 538, 544, 56 So. 670, 672 (1911). See also Pinellas Packing Co. v. Clearwater Citrus Growers’ Assn., 65 Fla. 340, 61 So. 625 (1913); Florida Power Corp. v. McNeely, 125 So.2d 311, 318 (Fla. 2d DCA 1960). The reason for this rule is as stated by the Minnesota Supreme Court in Brooks Inv. Co. v. City of Bloomington, 305 Minn. 305, 315-16, 232 N.W.2d 911, 918 (1975):

The rationale behind this rule seems to be simple and logical. When the government interferes with a person’s right to possession and enjoyment of his property to such an extent so as to create a “taking” in the constitutional sense, a right to compensation vests in the person owning the property at the time of such interference. This right has the status of property, is personal to the owner, and does not run with the land if he should subsequently transfer it without an assignment of such right. The theory is that where the government interferes with a person’s property to such a substantial extent, the owner has lost a part of his interest in the real property. Substituted for the property loss is the right to compensation. When the original owner conveys what remains of the realty, he does not transfer the right to compensation for the portion he has lost without a separate assignment of such right. If the rule were otherwise, the original owner of damaged property would suffer a loss and the purchaser of that property would receive a windfall. Presumably, the purchaser will pay the seller only for the real property interest that the seller possesses at the time of the sale and can transfer. In this case that was the real estate less the street unlawfully taken by the city.

In the case before us Burnette acquired the 75-acre tract from Fish and Game Improvement, Inc., in satisfaction of a judgment, long after that property had been deprived (he alleges) of its development potential as an inseparable part of Country Club Villas.

The inverse condemnation remedy for unconstitutional “takings” has been broadened over the years by pressures for relief against State-caused damage or impairment of land use. Although the Supreme Court adheres to the letter of the rule that the Florida Constitution affords no compensation for land damaged and impaired in use, but not permanently encroached upon and taken, Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663, 669 (Fla.1979), decisions emanating from State Road Dep’t v. Tharp, supra, have afforded relief where suits previously were thought forbidden by the doctrine of sovereign immunity. Concerning the State’s liability to suit for faulty management of surface waters, compare Arundel Corp. v. Griffin, 89 Fla. 128, 103 So. 422 (1925), and Poe v. State Road Dep’t, 127 So.2d 898, 901 (Fla. 1st DCA 1961), with Kendry v. State Road Dep’t, 213 So.2d 23 (Fla. 4th DCA 1968), cert. den., 222 So.2d 752 (Fla.1969), and Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973).

Tharp, which is understood as holding that the State unconstitutionally “took” the water mill, though the opinion catalogued other theories of liability including implied contract, and Kendry, which read Tharp as finding the mill was only half damaged, not destroyed, but nevertheless “taken,” reflect the stresses to which “taking” concepts were subjected during years in which sovereign immunity was regarded as barring more direct judicial remedies for damage by the State’s drainage trespasses and nuisances. See also Faison v. Division of Administration, Dep’t of Transportation, 299 So.2d 629 (Fla. 1st DCA 1974), cert. den., 305 So.2d 201 (Fla.1974); State Road Dep’t v. Darby, 109 So.2d 591 (Fla. 1st DCA 1959). But even as courts became more wont to find that serious damage or impairment of an existing use constitutes a “taking” of property, so justifying judicial intervention, it was plain that the real object of intervening was not to require the State to buy the “taken” land- — here, 100 unimproved acres — but was rather, sovereign immunity notwithstanding, to exact damages for the land’s loss of utility and value, or to enjoin the State to cease its burdensome conduct.

It is unnecessary in this case that we further attenuate the “taking” concept by finding a (compensable) taking rather than (incompensable) damage, as by holding that this raw acreage is “permanently” appropriated because it is indivisible in Burnette’s development scheme and half of it will be flooded by a storm occurring once in 25 years. Burnette’s 100 acre tract is not permanently appropriated. Instead it is and will continue to be intermittently and wrongfully damaged by water which the Department casts down upon it in various quantities and intervals, depending on rainfall, by means of a drainage system which reverses the natural and previous flow. The State is properly to be enjoined from continuing this tortious conduct.

It is a simple proposition, whose soundness does not depend upon linkage with inverse condemnation concepts, that “no person has the right to gather surface waters that would naturally flow in one direction by drainage, ditches, dams, or otherwise, and divert them from their natural course and cast them upon the lands of the lower owner to his injury.” Brumley v. Dorner, 78 Fla. 495, 501, 83 So. 912, 914 (1919); Dade County v. South Dade Farms, 133 Fla. 288, 296,182 So. 858, 861 (1938). If the sovereign’s immunity was ever a serious impediment to a suit for injunction to secure relief from action by the State having that effect — but see Jones v. Brown, 82 So.2d 889 (Fla.1955) — it is no longer. Every remedy which would be available against an individual for such a repeated trespass or continuing nuisance, including an injunction to prevent a multiplicity of damage suits, is now available against the State. Section 768.28, Florida Statutes (1979). As for the fact that the statute was not fully effective until January 1975, Chapter 74-235, Fla. Laws, we have held at the Department’s urging that it did not previously “take” these 100 acres; certainly we must now correspondingly hold that the Department acquired no prescriptive right, before the legislature’s waiver of sovereign immunity, to continue using any part of this acreage as a terminus for the revised drainage system. See Town of Miami Springs v. Lawrence, 102 So.2d 143 (Fla.1958).

Treating the Department’s diversion of drainage as a continuing tort, rather than as a permanent “taking” of all lands affected by it, enables us to sustain the circuit court’s injunctive relief notwithstanding that Burnette assembled the subject property long after the Department established the offending drainage pattern. It is no defense to this action, so conceived, that the drainage system was already in place when Burnette bought this acreage and so “came to the nuisance.” Lawrence v. Eastern Air Lines, Inc., 81 So.2d 632, 634 (Fla.1955); Prosser, Law of Torts (4th ed.), Section 91 at p. 611:

The prevailing rule is that in the absence of a prescriptive right the defendant cannot condemn the surrounding premises to endure the nuisance, and that the purchaser is entitled to the reasonable use and enjoyment of his land to the same extent as any other owner, so long as he buys in good faith and not for the sole purpose of a vexatious lawsuit.

Accordingly, the circuit court’s judgment is excised of its conclusion, found to be erroneous and unnecessary, that Burnette’s 100 acres have been “taken” and must be purchased as in eminent domain; and we shall affirm the judgment which as modified enjoins the Department’s continued use of the State Road 10 drainage system in such a way as to burden this land. This is not to say that the Department’s use of its eminent domain powers is foreclosed. Quite possibly the Department is unable to restore the old northward drainage pattern without casting unmanageable water on North Florida Junior College. Condemnation of some land or easements may be appropriate to manage this drainage in compliance with the injunction, but the manner and method of so relieving Bur-nette’s land are for the Department to determine in the exercise of its lawful powers. The judgment, as modified, is

AFFIRMED.

ERVIN, J., concurs.

BOOTH, J., concurs in part and dissents in part with opinion.

BOOTH, Judge,

concurring in part, dissenting in part:

The judgment below correctly awards the alternative relief prayed and should be affirmed without modification. The majority assumes that the judgment requires the State to condemn the fee in 100 acres, the entire tract owned by plaintiff. Not so. The order enjoins flooding of the tract or, in the alternative, requires institution of condemnation proceedings. What has been determined at this point is that there has been a taking of property with respect to the identified tract of land. The amount of property taken, as well as the value thereof and severance damages, if any, remain to be determined in separate condemnation proceedings should the State so elect. Such proceeding is instituted by the filing of petition and declaration of taking, which determines both the amount of, and estate in, the property taken. The basic principle of eminent domain applies, which requires that the State condemn no more than is necessary for the stated public purpose. Here the majority’s decision reaches substantially the same result as the trial court’s order, in that it affirms the award of injunctive relief and leaves to the State the option of instituting condemnation proceedings. I concur in that result.

I agree with the majority that the reversal of natural drainage caused by DOT’s construction “imposes a substantial burden on the subject property” and that injunctive relief is appropriate. I dissent from the holding that there has been no taking of the property in the constitutional sense and, therefore, no basis for required institution of condemnation awarded as alternative relief. The record shows that the Department of Transportation is responsible for diverting the surface waters drained from 103 acres of the City of Madison, which waters are carried via ditches and culverts constructed by DOT, to be poured onto the land of the plaintiff at the rate of 14 million gallons in a six-hour period during a “25-year” rainstorm. This does not mean, as the majority suggests, that there will be flooding only every 25 years. Even the State concedes the evidence shows some flooding will occur each year. In effect, the storm sewer system of the City of Madison now terminates on plaintiffs’ 100-acre tract. The condition of flooding is not permanent in the sense that the water is forever present, but it is permanent in the sense that rain is a condition reasonably expected to occur and reoccur in the future. The evidence is that, without the excess water diverted onto the property, plaintiffs’ land is appropriate for residential use.

The trial court’s determination that there has been a taking of property is supported by the evidence and in accord with the law of this State. The majority, in rejecting that determination, echoes the dissenting opinion in State Road Department v. Darby, 109 So.2d 591, 593 (Fla. 1st DCA 1957), and rejects the line of cases beginning with State Road Department v. Tharp. The basis for this rejection of prior precedent is that sovereign immunity has been waived, and suits against the State for damages are now available. Suit for damage, an available alternative at the election of the owner for wrongs committed to property, is not a substitute for condemnation, which requires valuation by a 12-person jury without the monetary limitations imposed by Florida Statutes § 768.14 on suits for damages.

The majority holds that plaintiffs’ claim in inverse condemnation is “problematical” because he acquired the property after the construction along U.S. 90, which resulted in the diversion of surface waters onto his property. Under the rule cited by the majority, the owner of the property at the time of the taking is entitled to the condemnation award and remains so entitled unless he has expressly assigned the claim to the subsequent owner. This rule was not asserted below nor made an issue on appeal. The record is silent as to the nonexistence of an assignment to the plaintiff. Nevertheless, since the majority bases its holding on the plaintiffs’ failure to comply with this rule, it must be pointed out that the rule does not apply in inverse condemnation proceedings in the absence of a showing that the plaintiff and his predecessor in title were aware of the existence of a cause of action at the time title was transferred. Here, it was not until the 1978 drainage study that the change in the natural drainage due to the State’s construction along U.S. 90 was discovered. Thus, plaintiff was the owner of the property at the time the injury was revealed and cause thereof discovered. Those cases cited by the majority, which apply the rule to bar recovery by a subsequent purchaser, involve visible construction on the land. Under such circumstances, consideration of the burden or easement is assumed to have been a factor in the purchase price paid, and the purchaser’s consent to the continued burden may be implied.

The Department contends that portions of the property were wetlands before construction; and, therefore, the diversion of additional water from the City of Madison onto the property is not a taking. Further, the Department contends that, since the landowner purchased land known to have moist areas and “gambled” that he would be able to drain it for development for residential use, he cannot now complain of the drainage condition. These arguments, which are made in connection with the affirmative defense of laches by the Department, are devoid of merit. The existence of natural water or wet areas on property does not thereby give the Department the right to flood it, nor does it require the landowner to accept millions of gallons of water drained from other lands. Where the activities of the State have rendered the property unfit for residential development and of questionable value for any purpose, present or potential, other than rice paddies, nipa huts or duck ponds, there has been substantial deprivation of property and a taking within the purview of Article X, § 6, Florida Constitution.

I would affirm the judgment below.

      . Article X, Section 6(a), Florida Constitution: No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.

      . The beginning point of the offending drainage pattern is described in the judgment as between Stations 735 to 745 on State Road 10 (U.S. Highway 90) as shown on Department maps for Project 35010-3505, fiscal year 1969.

      . The amended complaint alleged in part:
      6. The diversion of surface waters as described . . above prevents the Plaintiffs from using their respective property and the action of the Defendant, DEPARTMENT OF TRANSPORTATION, amounts to an actual taking of said real property without paying compensation therefor.
      7. The alleged taking of property without compensation served as a substantial ouster depriving Plaintiffs of all beneficial use of the land affected.
      8. The taking was permanent in nature.
      9. That the heretofore described real property has never been and is not presently the subject of any eminent domain proceeding instituted by the Defendant, or any public body vested with the power of eminent domain under the Laws of the State of Florida.

      .The court’s full finding on the subject was:
      That the diversion of surface waters in the quantities described in the testimony has interfered with the intended use or uses of the premises owned by the Plaintiff and constitutes a permanent taking by the DEPARTMENT OF TRANSPORTATION without full compensation.

      . The Court stated, in Marianna:

      In 15 Cyc. [Eminent Domain] p. 795, it is said: “Damages for the taking of land, or for injury to land not taken, belong to the one who owns the land at the time of the taking or injury, and they do not pass to a subsequent grantee of the land, except by a provision to that effect in the deed, or by assignment.”

      . Poe, in language which was in part quoted with approval by the Supreme Court in Village of Tequesta, stated:
      . Acts of a public agency in the construction of a public improvement which results in recurrent but temporary flooding of adjacent lands owned by private individuals has been held to be only a consequential damage, and not a taking of the flooded properties within the meaning of the Constitution which prohibits the taking of private property without the payment of just compensation. It is universally recognized that injury by the condemnor to remaining land caused by obstructing, diverting or increasing the flow of surface waters, but which do not amount to a permanent deprivation by the owner of the use of such remaining lands, is a consequential damage resulting from the taking in an eminent domain proceeding, and must be recovered in that proceeding, if at all.

      . The idea that the State impliedly contracts to pay for its torts was rejected in State ex rel. Division of Administration v. Oliff, 350 So.2d 484 (Fla. 1st DCA 1977).

      . Kendry, 213 So.2d at 27, said Tharp held that:
      . . . to constitute a taking, the flooding need not completely destroy all value in the property flooded. It will be recalled that the flooding which was the subject of consideration then before the Court merely reduced the mill’s capacity by about fifty percent.
      This would seem a misreading of Tharp’s facts and a corresponding exaggeration of its holding. In Village of Tequesta the Supreme Court stated, 371 So.2d at 669, that the water in Tharp “raised the level of a millrace to such an extent as to destroy the use of plaintiffs grist mill.” A half-efficient mill is scarcely better than none.

      . E. g., Pinellas County v. Austin, 323 So.2d 6, 9 (Fla. 2d DCA 1975): “[T]he Austins are entitled to be compensated for the loss suffered by the vacation of the streets in question.”

      . Although Tharp's principal holding has been read as pertaining to the “taking” of property, not as authorizing injunctions against injurious State modifications of water courses, the principal prayer of Tharp’s complaint was for an injunction against the “continual trespass.” The Court stated: “In lieu of’ injunctive relief, “the defendant was granted the privilege of exercising the right of eminent domain . . .” 146 Fla. at 747, 1 So.2d at 869. Subsequent decisions have similarly employed alternative remedies of an injunction to desist or condemn. E. g., State Road Dep’t v. Bender, 147 Fla. 15, 2 So.2d 298 (1941); Downing v. Bird, 100 So.2d 57 (Fla.1958); City of Pompano Beach v. Beatty, 177 So.2d 261 (Fla. 2d DCA 1965).

      . In Jones v. Brown, through an opinion by Mr. Justice Terrell, the author of Tharp and other decisions expanding the “taking” concept, the Supreme Court, without troubling to invoke “taking” concepts, sustained an injunction against the State’s drainage system notwithstanding a plea of sovereign immunity.

      .Final Judgment, in part:
      ORDERED and ADJUDGED that the prayer for a restraining order against the DEPARTMENT OF TRANSPORTATION, STATE OF FLORIDA, is hereby granted and the Defendant, DEPARTMENT OF TRANSPORTATION, is enjoined and restrained from allowing surface waters to flow onto the real property belonging to the Plaintiff, WILLIAM M. BURNETTE. . . .
      ORDERED and ADJUDGED that the DEPARTMENT OF TRANSPORTATION OF STATE OF FLORIDA is hereby Ordered to immediately begin condemnation proceedings of the real property owned by WILLIAM M. BURNETTE which is more particularly described as follows:
      . . . [description of entire tract] Further ORDERED and ADJUDGED that the DEPARTMENT OF TRANSPORTATION, STATE OF FLORIDA, is hereby granted ninety (90) days from the date hereof to comply with this Final Judgment either by commencing condemnation proceedings or by changing the course of said surface waters pursuant to the restraining order above.

      . State Road Department v. Harvey, 142 So.2d 773, 775 (Fla. 2d DCA 1962); State Road Department v. Darby, 109 So.2d 591, 593 (Fla. 1st DCA 1959).

      . Florida Statutes, §§ 73.021, 74.031 (1979); Tosohatchee Game Preserve, Inc. v. Central and Southern Florida Flood Control District, 265 So.2d 681 (Fla.1972).

      . Canal Authority v. Miller, 243 So.2d 131 (Fla.1970); Ball v. City of Tallahassee, 281 So.2d 333 (Fla.1973); Knappen v. DOT, 352 So.2d 885 (Fla. 2d DCA 1977).

      . A storm occurring with “average frequency” every 25 years. Residential design criteria and “ponding” requirements are based on the amounts of rainfall generated within a six-hour period during such a storm.

      . 146 Fla. 745, 1 So.2d 868 (1941); Kendry v. State Road Department, 213 So.2d 23 (Fla. 4th DCA 1968), cert. denied 222 So.2d 752 (Fla.1969); Thompson v. Nassau County, 343 So.2d 965 (Fla. 1st DCA 1977); Pinellas County v. Austin, 323 So.2d 6 (Fla. 2d DCA 1975); Elliott v. Hernando County, 281 So.2d 395 (Fla. 2d DCA 1973); City of Jacksonville v. Shumann, 167 So.2d 95 (Fla. 1st DCA 1964); State Road Department v. Darby, 109 So.2d 591 (Fla. 1st DCA 1959).

      . This idea is not original. See, e. g. Kermetz v. Cook-Johnson Realty Corp., 54 Ohio App.2d 220, 376 N.E.2d 1357 (1977).

      . Cox Enterprises v. Phillips Petroleum, 550 P.2d 1324 (Okl.1976); See, 6A Nichols, Eminent Domain, § 28.3 at 28, 89, 90 (3d Ed. 1979); 27 Am.Jur.2d, Eminent Domain, § 501 at 457.

      . Brooks Investment Co. v. City of Bloomington, 305 Minn. 305, 232 N.W.2d 911 (1975) (street illegally constructed across land prior to sale of property, held owner at time of construction rather than subsequent owner entitled to recover); Marianna & B. R. Co. v. Maund, 62 Fla. 538, 56 So. 670 (1911) (railroad track laid across land without compensation, held suit dismissed without prejudice were assignment of claim to subsequent owner was attained after suit filed.

      . 2A, Nichols, Eminent Domain, § 6.4441 [8], in part:
      [A] system of drainage collecting surface water from the streets of an entire section of a city and turning it by artificial channels upon private land to which it would not naturally have flowed could not be constructed without compensation to the owner of the land affected. Such an injury would not reasonably be contemplated when the street in front of such land was laid out, . . . and . . . would be such a severe and direct invasion of property as to constitute a taking in the constitutional sense.


author: MILLS, Chief Judge. SHIVERS, Judge,

text:
    Shirley Jayne BARKER, Appellant, v. Frank Delano BARKER, Appellee.
    No. PP-137.
    District Court of Appeal of Florida, First District.
    June 13, 1980.
    Sharon H. Tanner and John Paul Howard, Jacksonville, for appellant.

      Frank Barker, in pro. per., for appellee.
   MILLS, Chief Judge.

Mrs. Barker appeals from a final judgment of dissolution of marriage awarding her rehabilitative alimony of $1,000.00 a month for five years, contending the trial court should have awarded her permanent alimony of $1,000.00 a month.

We affirm. Mrs. Barker has failed to show the trial court abused its discretion and as the period of rehabilitative alimony draws to a close, she may, upon a showing of diligent effort toward rehabilitation which through no fault of her own has been unsuccessful, move the trial court for an extension of the rehabilitative alimony or for an award of permanent alimony. Greene v. Greene, 347 So.2d 1090 (Fla. 1st DCA 1977); Gann v. Gann, 334 So.2d 325 (Fla. 1st DCA 1976); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

We affirm also the amount of alimony and child support awarded because it passes the reasonableness test set forth in Cana-karis.

Affirmed.

LARRY G. SMITH, J., concurs.

SHIVERS, J., concurs in part and dissents in part.

SHIVERS, Judge,

dissenting in part and concurring in part:

I dissent. I would reverse with directions to convert the award of $1,000 per month rehabilitative alimony to an award of $1,000 per month permanent alimony. The record is uncontroverted that the wife, aged 44, was a devoted wife, mother, and homemaker during the course of this 17 year marriage. She has no employment skills, no special training, and no wage-earning capacity. She has a medical problem with varicose veins which prevents her from standing for long periods of time. Cana-karis v. Canakaris, cited by the majority opinion, establishes that the trial court’s discretionary awards are subject only to a “reasonableness” test:

If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

If the Canakaris decision had stopped at that point, I would be constrained to concur with the majority. However, Canakaris continued:

. The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial court’s discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness. (e.s.)

The trial court’s discretionary act in awarding rehabilitative alimony instead of permanent alimony fails to meet the reasonableness test of Canakaris in light of similar cases. Cf. Lash v. Lash, 307 So.2d 241 (Fla. 2nd DCA 1975); Messer v. Messer, 342 So.2d 1076 (Fla. 2nd DCA 1977); Gratton v. Gratton, 358 So.2d 262 (Fla. 3rd DCA 1978); Yohem v. Yohem, 324 So.2d 160 (Fla. 4th DCA 1975); Schwartz v. Schwartz, 297 So.2d 117 (Fla. 3rd DCA 1974).

The proper treatment, in my opinion, is to award permanent alimony and to require the husband to petition for modification should the circumstances change. The husband has the ability to pay permanent alimony.

I concur with the majority opinion that the amount of alimony and child support awarded should be affirmed.


text:
    Luis MEDINA, Petitioner, v. Jack SANDSTROM, Director, Department of Corrections and Rehabilitation, Respondent.
    No. 80-1212.
    District Court of Appeal of Florida, Third District.
    June 13, 1980.
    Essen & Spiegel and Eric B. Feldman, Miami, for petitioner.
    Janet Reno, State’s Atty. and Stephen V. Rosin, Asst. State’s Atty., for respondent.
    Before HENDRY, NESBITT and DANIEL PEARSON, JJ.
   PER CURIAM.

The petitioner, charged with crimes punishable by life imprisonment, was denied bail by the trial court upon a finding that the proof of guilt was evident and the presumption was great. See Article I § 14, Fla.Const.; Fla.R.Crim.P. 3.130(a). He thereafter petitioned this court to issue a writ of habeas corpus.

At the bail hearing held below, the trial judge considered, inter alia, evidence in the form of a sworn written statement of one of the victims taken by a police officer. The petitioner objected to the trial judge considering this hearsay evidence. The trial judge candidly remarked:

“[I] do accept hearsay in bond hearings. I conduct them somewhat like probation hearings. Ordinarily, that testimony all by itself would not be able to establish the burden of proof, those kind of things, but I do accept it to corroborate things and matters like that.”

The right of cross-examination is fundamental in a bail hearing. Stansel v. State, 297 So.2d 63 (Fla. 2d DCA 1974). A statement made to a police officer by a victim of the crime which is not subject to cross-examination is hearsay and cannot serve as a basis for denying bail. Primm v. State, 293 So.2d 725 (Fla. 2d DCA 1974). Compare James v. State, 241 So.2d 383 (Fla.1970) (in which the prior statement of the victim taken at a preliminary hearing and subject to cross-examination by the defendant was held admissible). Where bond determinations have been made in part on the basis of hearsay testimony, we have struck the hearsay in reviewing the reasonableness of the bail. State ex rel. Bardina v. Sandstrom, 321 So.2d 630 (Fla. 3d DCA 1975). See also Rodriguez v. State, 305 So.2d 305 (Fla. 2d DCA 1974).

We cannot discern the extent to which the trial judge was influenced in his decision to deny bail by the wrongfully admitted hearsay evidence. We accordingly remand this cause with directions that the hearsay statement of the victim be stricken from the record and that the trial judge, after conducting such additional evidentiary hearing as he deems necessary, reconsider his order denying bail.

Remanded.

      . No statement was procured from the other victim.


text:
    Larry GRANT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1828.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

The appellant’s probation was revoked after an affidavit was filed alleging breach of three conditions of his probation. At the outset of the hearing, two of the alleged breaches were dismissed. At the conclusion of the hearing, the trial court determined that the appellant had violated his probation and revoked same, finding him in violation as to each of the allegations contained in the affidavit of violation. This was error, and the matter is returned to the trial court solely for the purpose of correcting the revocation order. See: Robinson v. State, 366 So.2d 1239 (Fla. 2d DCA 1979).

Reversed and remanded, with directions.