author: ORFINGER, Chief Judge. COWART, Judge,

text:
    Gary W. CAMPBELL, Appellant/Cross Appellee, v. Chalermsri V. CAMPBELL, Appellee/Cross Appellant.
    No. 82-233.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1983.

      Devo A. Heller of Brinson, Smith, Heller & Smith, P.A., Kissimmee, for appellant/cross appellee.
    Addison E. Walker, St. Cloud, for ap-pellee/cross appellant.
   ON MOTION TO REVIEW

ORFINGER, Chief Judge.

After this appeal was filed, the former husband filed a petition in the trial court seeking to modify the alimony and support provisions of the final judgment, alleging changed circumstances in that his earnings had been severely diminished since the final judgment was entered. The former wife challenged the trial court’s jurisdiction to consider the petition during the pendency of this appeal, but the trial court overruled the objections on the ground that Florida Rule of Appellate Procedure 9.600(c) permitted it to entertain the petition.

The trial court then proceeded to hear testimony on the petition, after which it entered an order on February 1, 1983, in which it found that there had been a substantial change of circumstances in that the husband had been partially unemployed subsequent to the final judgment and had later become employed at a substantially reduced salary. The order modified the final judgment by reducing the child support to $50.00 per week (the equivalent of $216.66 per month) and by reducing the alimony award to $20.00 per week ($86.66 per month). The trial court specifically held that it was making no ruling as to the reasonableness, excessiveness or insufficiency of child support and alimony as previously awarded, which issues were on appeal, “... but is ruling only as to the modification sought on the basis of a substantial change of circumstances.” The former wife has filed a motion for review of the February 1, 1988, order, pursuant to Rule 9.600(c).

The wife contends that the trial court had no jurisdiction to modify the original final judgment, albeit on a finding of changed circumstances, because of the pendency of this appeal. Florida Rule of Appellate Procedure 9.600(c) says:

In dissolution of marriage actions the lower tribunal shall retain jurisdiction to enter and enforce orders awarding separate maintenance, child support, alimony, or other awards necessary to protect the welfare and rights of any party pending appeal, including costs and attorney’s fees. The review of such orders shall be by motion filed in the court within 30 days of rendition. The receipt or payment of funds under an order awarding separate maintenance, child support or alimony shall not prejudice the rights of appeal of any party.

This rule clearly restricts the trial court’s powers to the entry of “orders ... or awards necessary to protect the welfare and rights of any party pending appeal” (Emphasis ours). This is a limited jurisdiction and is calculated to protect the party seeking or needing relief until the appellate court decides the issue on appeal. Of course, this view presupposes that the subject matter of the post-appeal order involves the subject matter on appeal, because in such case it seems to be well settled that the trial court has no jurisdiction to interfere with the subject matter on appeal.

This general proposition of law has been recognized in numerous cases involving post-appeal orders in dissolution cases. In Kalmutz v. Kalmutz, 299 So.2d 30 (Fla. 4th DCA 1974), the court noted:

There is a serious question as to the authority of the trial court to enter a temporary order affecting the merits of the cause involved in the main appeal or which would have the effect of rendering the main appeal moot. Willey v. W.J. Hoggson Corporation, 1925, 89 Fla. 446, 105 So. 126; State v. Robles, 1933, 109 Fla. 528,147 So. 910. Unquestionably the trial court has the power to grant temporary relief pending appeal and possesses the inherent power and authority to take such action as justice and equity requires. It would appear, however, that when the jurisdiction of the appellate court attaches it is exclusive as to the subject covered by the appeal; so that modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order actually is.

Id. at 32.

This view was reaffirmed in Buckley v. Buckley, 343 So.2d 890 (Fla. 4th DCA 1977), under facts similar to those here. Francis Buckley appealed a final judgment of dissolution of marriage. Pending his appeal, he filed a motion to amend the final judgment, the purpose of which was to obtain a reduction in the amount of alimony and child support he was required to pay. The trial court declined to hear the petition because it believed that it had no jurisdiction in view of the pending appeal, and the appellate court agreed, citing Kalmutz, and holding that “modification of an order under appeal would be beyond the jurisdiction of the trial court from the very innate nature of the appellate jurisdiction and from the very practical viewpoint that there is no order to be modified until the appellate court determines what the order is.”

While it is true that both Kalmutz and Buckley were decided under former Rule 3.8(b), Florida Appellate Rules, 1962 Revision, which rule was somewhat narrower in scope than the present Rule 9.600(c), the Fourth District has reached the same result under the present rule. In Weider v. Welder, 402 So.2d 66 (Fla. 4th DCA 1981), the court held that a post-judgment order by the trial court pending appeal of the judgment, awarding to the wife exclusive use and possession of the marital home “. .. until July 14, 1983, or a determination of the appeal of the final judgment ... whichever occurs latest in point of time” exceeded the trial court’s jurisdiction, because:

Fla.R.App.P. 9.600 allows the trial court to enter and enforce orders necessary for the protection of a party pending appeal. By awarding the wife the exclusive use and possession of the marital home until July 14, 1983 in the event this appeal is decided prior to that time, the trial court has exceeded its jurisdiction. The trial court losses [sic] jurisdiction upon the filing of a notice of appeal except for those matters specifically enumerated in Rule 9.600, and this rule does not provide for such jurisdiction beyond the pendency of the appeal, (emphasis in original).

Id. at 68.

In Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980), the court held that the trial court had no jurisdiction to modify portions of the final judgment while the appeal was pending without the consent of the appellate court. In Bailey v. Bailey, 392 So.2d 49 (Fla. 3d DCA 1981), the same court stated the general rule applicable to trial court jurisdiction pending appeal of the final judgment thusly:

Whether the trial court lacks jurisdiction depends not simply on the fact that an appeal in the case has been taken and is pending, but rather on the nature of the action being taken by the trial court in relation to the subject matter of the pending appeal. If what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court’s power and authority to decide the issues presented to it by the appeal, then the trial court can act. The jurisdiction of the appellate court is exclusive only as to the subject matter of the appeal.

Id. at 52. Because the trial court’s order involved a post-judgment allowance of attorney’s fees which was not decided by the original judgment nor involved in the appeal, the court held that the trial court had jurisdiction to make the award. It nevertheless recognized the continued validity of the principles espoused in Blum, that the trial court has no jurisdiction to modify the very order appealed from, during the pend-ency of the appeal. In Johnson v. Ferguson, 383 So.2d 715 (Fla. 3d DCA 1980), the court held that pending an appeal of a final judgment of dissolution, the trial court had no jurisdiction to enter an order requiring the parties to sell the marital home, the exclusive possession of which had been given to the wife by the final judgment, despite the claim that it was an order entered to protect the welfare and rights of a party pending appeal and thus within the scope of Rule 9.600(b), because of a pending mortgage foreclosure action.

Sub judice, the trial court granted not just temporary relief during the pendency of the appeal, but a permanent change in alimony and support. While it may be said that alimony and child support awards are never “permanent” because they are always subject to modification, they are permanent until modified or until the event which terminates the award occurs. Thus “permanent” periodic alimony is so characterized despite its susceptibility to modification upon a proper showing. The very subject matter of the appeal here involves not only the characterization of the alimony award, but the amounts awarded both for alimony and child support. Thus any modification of the judgment while the appeal is in progress cannot do anything other than interfere with this court’s jurisdiction and thus “impinge upon the appellate court’s power and authority to decide the issues presented to it by the appeal.” Rule 9.600(c) grants to the trial court the power to grant relief pending appeal, as a temporary measure, which includes the power to award such amounts of alimony or support as may be “necessary to protect the welfare and rights of any party pending appeal,” but any attempt to exceed that time frame, as in the order under review, and to grant a “permanent” modification of the final judgment, exceeds that jurisdiction.

The order of modification is set aside for lack of jurisdiction, but as in Buckley, once jurisdiction is revested in the trial court, it may enter an order on the petition for modification retroactive to the date on which it was filed, if it is of the continued opinion that changed circumstances warrant that relief.

AFFIRMED in part, REVERSED in part, and REMANDED.

DAUKSCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Does a trial court have jurisdiction to entertain a petition to modify an order for spousal or child support on the ground of a change of circumstances while a prior adjudication of support is being reviewed on appeal?

The majority view confuses separate and distinct legal causes of action or claims for relief and reaches the conclusion that during the pendency of appellate review of a prior order for support the trial court lacks jurisdiction to entertain a claim for relief from the prior adjudication based on a changed circumstance. I do not agree.

Although the situation with child custody and child support is similar, alimony (spousal support) gives a good example of the relationship between a prior adjudication of support and a “modification” based on a change of circumstances. An original substantive cause of action for spousal support is granted by sections 61.08 and 61.09, Florida Statutes (1981), and is based on the premise that a married person has a duty to contribute to the support of his or her spouse when one has the ability and the other the need for future maintenance and support. This claim for relief is the claim of a needy obligee spouse for future maintenance and support from a spouse with ability to provide it. The factual bases for invoking the jurisdiction of the trial court as to this cause of action are only the facts existing on or before the date of the filing of the complaint or petition for such relief. Every adjudication of support, and any appellate decision reviewing it, is limited in res judicata effect to the facts which preceded that cause of action and which supported that adjudication.

On the other hand, there is another entirely separate and different cause of action or claim for relief. The exclusive substantive cause of action or claim for relief from a prior adjudication ordering spousal or child support is granted by sections 61.14 and 61.17(l)(b), Florida Statutes (1981), and is founded on the premise that every adjudication ordering future payments of support is limited to the particular set of facts relating to relative need and ability at the time of such adjudication and that when the factual circumstances relating to those matters have changed either the obligee or obligor is entitled to have the alleged new set of facts judicially examined to determine if they are substantially and materially different from those underlying and supporting the prior adjudication and, if so, to have the prior adjudication terminated and to have a new adjudication of support based on the new set of facts made to govern future payments of support.

The effect of the very existence of a cause of action for relief from every adjudication of future support upon a changed factual circumstance is necessarily to limit every adjudication of such support to the facts on which it is based and also to limit the res judicata duration of every adjudication ordering future support payments to the time when it is later judicially determined that the relevant facts have materially changed. This is a wise recognition of the fact that the effective facts supporting every order for future support payments will substantially change sooner or later in every case and that no support order should be effective beyond that event. Of course once an appeal is taken of any particular adjudication of support based on its set of facts the trial court does not have jurisdiction to change that adjudication based on those facts. This does not, need not, and should not mean the trial court does not have jurisdiction to consider a new cause of action based on a new and different set of facts.

Therefore a later “modification” of a pri- or adjudication of support upon a changed factual circumstance does not modify or change the prior adjudication in the retroactive and ab initio manner of an appellate court reversal which determines that the prior adjudication was erroneous from its entry on the facts upon which it was based. The subsequent change actually constitutes a successive separate and distinct cause of action or claim for relief and by its very definition is based on a different set of facts. Each subsequent change of circumstance must be separately alleged, proved and adjudicated in the trial court and each such adjudication is itself legally correct or incorrect and is subject to a separate and different appellate review. Appellate review of any adjudication of support relates only to the facts involved in that adjudication and the question on review is always whether that particular conclusion is legally correct as to its facts. Appellate jurisdiction to review one adjudication as to one cause of action is not, and should not be related to, or confused with, appellate jurisdiction to review another. Likewise, appellate review of the original adjudication, or any prior adjudication of support is not concerned with, nor affected by, any subsequent trial court adjudication of support based on another subsequent and different set of facts. Nor is any subsequent “modification” proceeding based on the theory that the prior adjudication was incorrect, which is the question involved in any appeal of a prior adjudication. To the contrary, the subsequent modification proceeding is neutral and indifferent as to the legal correctness of the prior adjudication and correctly proceeds on the theory that, whether or not the prior adjudication was correct on the facts then found and adjudicated, those facts have now changed and the present factual circumstances differ so substantially and materially from those underlying the prior adjudication that a different level of support is warranted.as to the future. It is not enough to merely say that the “subject matter” of both a pending appeal and a subsequent modification proceeding is “support.” The subject matter of the pending appeal is always the legal correctness of the support awarded on the particular facts supporting the prior adjudication. That is not the subject matter of the subsequent modification proceeding which is concerned with whether the facts have substantially and materially changed since the prior adjudication and if so, the correct level of the new support.

Therefore a subsequent “modification” proceeding based on a changed factual circumstance (as distinguished from some attack in the trial court on the validity of the prior adjudication such as under Florida Rule of Civil Procedure 1.540) does not, and cannot, in any legal way interfere with or impinge on the appellate court’s jurisdiction to review and determine the legal correctness of the prior adjudication on its facts.

Neither the majority opinion nor any of the cases it cites demonstrate how a trial court’s undertaking to adjudicate a change of circumstances interferes with a pending appellate review of the correctness of some prior adjudication relating to some other state of facts. Any feeling that the later change in circumstances wrongfully moots the prior adjudication, or its appellate review, does not appreciate the facts of life as to such matters. A genuine substantial material change in factual circumstances following an adjudication of support, as a practical matter always moots the practical, but not the legal, effect of the prior adjudication and should. Long judicial labor leading to a perfect support order (whether or not it is reviewed on appeal) is always mooted when either the obligee or obligor dies or any other substantial factual change occurs.

The statement in Kalmutz, 299 So.2d at 32, cited in the majority opinion, “that there is no order to be modified until the appellate court determines what the order is,” is patently incorrect. Trial court orders of support are real, lawful and binding and enforceable whether or not appealed and subject to “modification” when the facts upon which they are based have substantially changed whether or not the prior order of support was appealed.

Florida Rule of Appellate Procedure Rule 9.600(c) has nothing to do with the question in this ease but relates to the jurisdiction of the trial court during an appeal to enter an initial order of support or to enforce an existing order for support during appeal.

The circumstances of parties are often prone to change rapidly in these times and when that change constitutes or creates a new claim and right to relief from the effect of a prior adjudication the constitutional right of access to the court to prosecute such new right to relief should not be denied or delayed until completion of appellate review of some other prior judicial action. Nor should an artificial threshold barrier to the enforcement of the new right be created by requiring one to petition an appellate court to unnecessarily relinquish its jurisdiction to review the correctness of some prior adjudication of another and different cause of action or claim for relief.

In summary, there is no good reason to hold that the trial court does not have jurisdiction to hear and consider a petition for modification of a prior adjudication for support or custody based on a substantial and material change in circumstances occurring since the prior adjudication merely because the prior adjudication is itself undergoing appellate review.

      . While not mentioned in the order, neither did the trial court attempt to address the question of whether permanent alimony had been properly awarded.

      . For some reason, as to support in drawn out domestic relations cases, counsel frequently presents without objection and the trial court considers occurrences and events occurring after the action is filed notwithstanding that such matters are not pleaded in supplemental pleadings as contemplated by Florida Rule of Civil Procedure 1.190(d).

      . Peculiarly under Florida Rule of Civil Procedure 1.110(h) the initial pleading alleging this cause of action occurring subsequent to final judgment is designated a supplemental complaint or petition but differs in purpose from the supplemental pleadings under Rule 1.190(d) mentioned in the preceding note. As usual Henry P. Trawick, Jr., ably distinguishes the two pleadings. See Trawick’s Florida Practice and Procedure, § 14-8 (1981).


source: Caselaw Access Project

author: FRANK D. UPCHURCH, Jr., Judge.

license: Public Domain

text:
    TRANSCON TRAILERS, INC., etc., Appellant, v. NORTHLAND INSURANCE COMPANY, etc., Appellee.
    No. 82-1564.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1983.

      George A. Stelogeannis of George A. Stelogeannis, P.A., Ocala, for appellant.
    Wayne C. McCall of Ayres, Cluster, Curry, McCall & Briggs, P.A., Ocala, for appel-lee.
   FRANK D. UPCHURCH, Jr., Judge.

Transcon Trailers, Inc., appeals from a final summary judgment in favor of its insurance carrier, Northland. The court below determined that the loss suffered by Transcon from the theft of one of its trailers was excluded from coverage. We disagree and reverse the final summary judgment.

The insurance policy issued by Northland provided coverage for loss of the trailer due to theft or larceny. The policy also contained the following exclusion:

This insurance does not apply:

Under the Comprehensive and Theft Coverages, to loss or damage due to conversion, embezzlement or secretion by any person in possession of a covered automobile under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance....

At the time of the theft, the trailer was leased to Ray Fuller for use in his trucking business. Fuller turned the trailer over to his driver who was apparently never seen again. If the driver had possession of the trailer under a “bailment lease, conditional sale, purchase agreement, mortgage, or other encumbrance” between Fuller and Transcon, then the loss was excluded from coverage.

On appeal, Transcon argues that its lease agreement with Fuller was not a “conditional sale, purchase agreement” or “mortgage.” Northland agrees and further concedes that the lease agreement was not a “bailment lease.” Thus, the only issue presented for our consideration is whether the phrase “or other encumbrance” in the exclusion includes the lease agreement.

Since the exclusion contains an enumeration of specific items followed by a more general phrase, the rule of “ejusdem generis” is applicable. Under the doctrine of “ejusdem generis”, when an enumeration of specific things is followed by some more general word or phrase, then the general word or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated. Halifax Area Council v. City of Daytona Beach, 385 So.2d 184 (Fla. 5th DCA 1980). This doctrine is actually an application of the broader maxim “noscitur a sociis” which means that general and specific words capable of analogous meaning when associated together take color from each other so that the general words are restricted to a sense analogous to the specific words. State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla.1958).

As was noted above, the exclusion for theft coverage applies to situations involving a “bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance.” A “bailment lease” is defined as:

A legal method by which one desiring to purchase an article but unable to pay therefor at the time, may secure possession thereof, with the right to use and enjoy it as long as he pays stipulated rentals and becomes absolute owner after completing such installment payments, on payment of an additional sum which may be nominal.

Black’s Law Dictionary at 129 (5th ed. 1979).

A “conditional sale” is defined as:
A sale in which the vendee receives the possession and right of use of the goods or articles sold, but transfer of complete title to the vendee is made dependent upon the performance of some condition or the happening of some contingency, usually the full payment of the purchase price.

Ballentine’s Law Dictionary at 242 (3rd ed. 1969).

A “purchase agreement” is defined as: An agreement between a buyer and seller of property, setting forth, in general, the price and terms of the sale. A sales agreement or contract.

Black’s Law Dictionary at 1110.

A “mortgage” is defined as:
A mortgage is an interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt.
At common law, an estate created by a conveyance absolute in its form, but intended to secure the performance of some act, such as the payment of money, and the like, by the grantor or some other person, and to become void if the act is performed agreeably to the terms prescribed at the time of making such conveyance. The mortgage operates as a conveyance of the legal title to the mortgagee, but such title is subject to defea-sance on payment of the debt or performance of the duty by the mortgagor.

Id. at 911.

As these definitions indicate, all of the terms in the exclusion involve the transfer of possession as well as the transfer of title (usually, the immediate transfer of possession and the eventual transfer of title contingent upon certain conditions being met). According to Ballentine’s Law Dictionary, “encumbrance” is defined as:

Literally a hindrance, impediment, or obstruction, such as an object in a highway. ... The significance in the law is that of any right to, or interest in land conveyed, which may subsist in a third party, to the diminution of the value of the land, but at the same time consistent with the passage of the fee thereto. Including whatever charges, burdens, obstructs, or impairs the use of the land, depreciates it in value, or impedes its transfer, such as a lien, a mortgage, deed of trust, or an easement.... “Encumbrances” fall into two general classes: (1) Those which affect or relate to the title or the record thereof, and (2) those which affect or relate to the actual physical conditions upon the realty such as a path or roadway indicating a servitude.
The application of the term “encumbrance” is almost invariably made to real estate, although it would seem entirely proper to speak of a chattel mortgage or lien upon personal property as an “encumbrance.” (citations omitted)

Id. at 401.

Since the other terms in the exclusion refer to interests which are intended to ultimately result in ownership, under the doctrine of “ejusdem generis”, the phrase “other encumbrance” should likewise relate or affect the transfer of title. More specifically, the policy here appears to have been drafted to exclude liability where the covered vehicle is in effect “sold” to another party. As the other party would have possession and the insured only “bare” title, it may be reasonable to shift the responsibility for insuring the vehicle to the other party.

A lease agreement, however, does not necessarily involve or contemplate the eventual transfer of title. When used with reference to tangible personal property, the word “lease” means

[A] contract by which one owning such property grants to another the right to possess, use and enjoy it for specified period of time in exchange for periodic payment of a stipulated price, referred to as rent.

Black’s Law Dictionary at 800.

The lease between Transcon and Fuller was for a term of twelve months but was terminable at will. The agreement contained no reference to “renting to own”, an option to purchase or anything of a similar nature. Thus, it is clear that Fuller and Transcon did not intend or even contemplate the eventual transfer of title. In these circumstances, the lease agreement does not fall within the phrase “or other encumbrance.” As the lease agreement did not cause the loss to be excluded from coverage, Northland was obligated to pay Transcon’s claim.

REVERSED.

ORFINGER, C.J., and COBB, J., concur.

      . Of course, when used in reference to real property (which is not the case here), a lease may constitute an encumbrance. See Lovett v. City of Jacksonville Beach, 187 So.2d 96 (Fla. 1st DCA 1966).


author: PER CURIAM.

text:
    Timothy Shawn BUSHWAY, Appellant, v. STATE of Florida, Appellee.
    No. 82-1705.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1983.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

DISMISSED. See Robinson v. State, 373 So.2d 898 (Fla.1979); and Griffin v. State, 403 So.2d 623 (Fla. 5th DCA 1981).

ORFINGER, C.J., DAUKSCH and FRANK D. UPCHURCH, Jr., JJ., concur.


author: COBB, Judge. SHARP, Judge,

text:
    The FLORIDA CHAPTER OF the SIERRA CLUB, a non-profit corporation, Appellant, v. ORLANDO UTILITIES COMMISSION, Appellee.
    No. 83-77.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1983.

      Irby G. Pugh, Orlando, for appellant. Thomas B. Tart, Staff Counsel, Orlando Utilities Commission, Orlando, and Ken Van Assenderp of Young, Van Assenderp, Varnodoe & Benton, P.A., Tallahassee, for appellee.
    J. Alan Cox, Asst. Gen. Counsel, Dept, of Environmental Regulation, Tallahassee, for appellee Dept, of Environmental Regulation.
    William H. Green, Gary P. Sams and Elizabeth C. Bowman of Hopping, Bóyd, Green & Sams, Tallahassee, for amicus curiae, Florida Electric Power Coordinating Group, Inc.
   COBB, Judge.

The Florida Chapter of the Sierra Club (Sierra) appeals from a certification order for the proposed Curtis H. Stanton Energy Center, Unit 1, a 415-megawatt coal-fired power plant to be built by the Orlando Utilities Commission in Orange County. We affirm.

The order, issued by the Governor and Cabinet under the Florida Electrical Power Plant Siting Act (FEPPSA), sections 403.-501 to 403.517, Florida Statutes (1981), is the final step in the process for certification of power plants in Florida. Before turning to the facts of the instant appeal, a brief outline of the statutory process of certification is in order.

The FEPPSA was adopted initially in 1973, with the legislative intent clearly spelled out in section 403.502, Florida Statutes (1981), which states in pertinent part:

The Legislature finds that the efficiency of the permit application and review process at both the state and local level would be improved with the implementation of a process whereby a permit application would be centrally coordinated and all permit decisions could be reviewed on the basis of standards and recommendations of the deciding agencies. It is the policy of this state that, while recognizing the pressing need for increased power generation facilities, the State shall ensure through available and reasonable methods that the location and operation of electrical power plants will produce minimal adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. It is the intent to seek courses of action that will fully balance the increasing demands for electrical power plant location and operation with the broad interest of the public. Such action will be based on these premises:
(1) To assure the citizens of Florida that operation safeguards are technically sufficient for their welfare and protection.
(2) To effect a reasonable balance between the need for the facility and the environmental impact resulting from construction and operation of the facility, including air and water quality, fish and wildlife, and the water resources and other natural resources of the state.
(3) To provide abundant, low-cost electrical energy.

The process of certification involves four agencies of the state government: The Department of Environmental Regulation, The Department of Veteran and Community Affairs, the applicable water management district, and the Public Service Commission (PSC). The initial application for certification is filed with the DER § 403.-504(3), which then furnishes the application to the other three agencies, with each having a specific responsibility in the application process.

The Department of Veteran and Community Affairs reports to the DER on the compatibility of the proposed electrical power plant with the state comprehensive plan. The water management district, in whose jurisdiction the proposed electrical plan is located, prepares a report on matters within its field of expertise, and the Public Service Commission prepares a report on the present and future need for the electrical generating capacity to be supplied by the power plant. § 403.507. The affirmative determination of need by the PSC is a condition precedent to the conduct of a certification hearing. § 403.508(3). These reports are collected by the DER, which then recommends either to grant or to deny the power plant application in a report submitted to the certification hearing officer. § 403.504(8).

While the DER is collecting the reports from the other agencies, a land use hearing is conducted in the county of the proposed site of the plant. The sole issue for determination at this hearing is whether or not the proposed site is consistent and in compliance with existing land use plans and zoning ordinances. The order of the hearing officer from this hearing is then reviewed by the Siting Board, which consists of the Governor and Cabinet, for final approval. § 403.508(2).

The final stage of the certification process is a certification hearing held by a hearing officer from the Division of Administrative Hearings. § 403.508(3). Following the hearing and the officer’s recommendation and findings of fact and law, the Board reviews that order. If the order is approved and certification granted, the construction and operation of the power plant may begin. § 403.511. The issuance or denial of the certification by the Board constitutes final administrative action required as to the application. § 403.509(3). The proceedings under Chapter 403 are reviewable as provided in Chapter 120. § 403.513.

In the instant case, no issue is raised regarding the reports filed by the Department of Veteran Affairs or the St. Johns Water Management District, both of which agreed that the power plant was acceptable in their respective areas. Additionally, the zoning and land use hearing, which the Sierra Club attended in August, 1981, but at which it produced no witnesses or evidence, led to a determination that the power plant was in compliance with existing land use plans and zoning ordinances of Orange County. This recommendation was approved by the Siting Board on October 21, 1981.

The focus of this appeal is the report issued by the PSC on October 9, 1981, finding that a need exists for the proposed power plant. In the report, the PSC found that the plant will provide significant economic benefits to Florida in terms of supplying alternatives to oil-fuel generation, displacing approximately 3,750,000 barrels of foreign oil per year. The Commission found that the plant will lead to lower costs to the utility customers by 1987, and lead to fuel diversity free from foreign embargoes. The PSC reached this determination after two days of public hearings on August 13 and 14, 1981. Sierra did not participate at any point in the PSC hearings, but sent a letter to the PSC, urging it to consider alternative conservation measures.

Following the submission of the reports, the DER issued an analysis recommending certification of the plant, subject to some 34 conditions, which were agreed to by the Orlando Utilities Commission.

The certification hearing in the instant case was held on March 15-22, 1982, with the Sierra Club, as well as other parties, participating in the hearing. Following the taking of much testimony, as well as the receiving of the DER’s report, the hearing officer issued his findings of fact, conclusions of law and recommended order on November 12,1982. In the order, the hearing officer described the background of the area, the plans for the plant, its effect on air, water and wildlife, and the testimony presented at trial regarding these matters. The officer concluded that:

Unit 1 and its associated facilities, if constructed as applied for with the subject conditions of certification, will produce minimal adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. The operation safeguards as proposed for Unit 1 are technically sufficient for the protection and welfare of the citizens of Florida. Further, a reasonable balance is struck between the need for the facility and the environmental impact resulting from construction and operation of the facility. Finally, the facility is capable of providing abundant low-cost electrical energy.

The hearing officer recommended that the certification be granted for the 415-me-gawatt plant, with ultimate site capacity of approximately 2,000 megawatts.

On December 7, 1982, a public hearing was held by the Governor and Cabinet, sitting as the Siting Board. Sierra was represented by counsel at the hearing and presented testimony. The Board issued its order on December 14, 1982, unanimously approving the certification of the plant and adopting the order of the hearing officer. On January 13, 1982, Sierra filed its Notice of Administrative Appeal from this final order.

Sierra Club contends the certification of the plant was in error, due to the misconstruing of section 403.519, Florida Statutes (1981), by the hearing officer and the Board. That section provides as follows:

403.519. Exclusive forum for determination of need. — On request by a utility or on its own motion, the commission shall begin a proceeding to determine the need for an electrical power plant subject to the Florida Electrical Power Plant Siting Act. The commission shall be the sole forum for the determination of this matter, which accordingly shall not be raised in any other forum or in the review of proceedings in such other forum. In making its determination, the commission shall take into account the need for electric system reliability and integrity, the need for adequate electricity at a reasonable cost, and whether the proposed plant is the most cost-effective alternative available. The commission shall also expressly consider the conservation measures taken by or reasonably available to the applicant or its members which might mitigate the need for the proposed plant and other matters within its jurisdiction which it deems relevant. The commission’s determination of need for an electrical power plant shall create a presumption of public need and necessity and shall serve as the commission’s report required by s. 403.507(l)(b). (Emphasis added.)

The Sierra Club contends that the hearing officer is required to balance the degree of need versus the environmental impact of the project, something it claims was not done here, since the hearing officer and the Board saw the determination of need as a matter strictly for the PSC (the Commission), whose determination would not be tampered with.

Section 403.519 was not part of the initial FEPPSA, but was added in 1980, as part of the Florida Energy Efficiency and Conservation Act, sections 366.80 to 366.85, Florida Statutes (1981). In that act, the legislature specifically states that it finds that the PSC is the appropriate agency to adopt goals and approve plans related to the conservation of electrical energy and natural gas usage. § 366.81. Additionally, in 1981, the legislature amended section 403.508, dealing with the certification hearing, to include the provision that “however, an affirmative determination of need by the Public Service Commission pursuant to section 403.519 shall be a condition precedent to the conduct of the certification hearing.” These statutes show an intention on the part of the legislature that the PSC was to be the sole determiner of need and that need was not a proper topic for examination at the subsequent certification hearing.

In the instant case, the hearing officer found that need, for the plant was not an issue in the proceeding, since that need was previously determined by an order of the PSC. The purpose of the certification hearing is spelled out in the stipulation between the parties, as follows:

Nature and purpose of the hearing. The purpose of the certification hearing is to put on the record for the hearing officer testimony and other evidence of a competent and substantial nature concerning whether location, construction and operation of the proposed Stanton Energy Center and related facilities will produce minimal adverse affects on human health, the ecology of the land and wildlife, the ecology of state waters and their aquatic life.
The precise purpose of the hearing is to hear testimony and produce facts and render findings of fact and conclusions of law on all applicable environmental, economic and other “broad interests of the public,” including those matters raised by all participating governmental agencies pursuant to specific authority in the Florida Power Plant Siting Act, so that the hearing officer can properly effect a reasonable balance between need for this facility and the environmental impact resulting from its construction and operation. Treated as “given” or already established as a matter of law is the consistency and compliance order of the Governor and Cabinet.

No Florida court has interpreted section 403.519, but the language therein, as well as the' language from section 403.508(3), compels the finding that the PSC is the sole judge as to the need for the power plant, with the hearing officer and, indeed, the Siting Board, bound by that determination.

Sierra contends that the certification is incorrect, even assuming that the PSC is the proper forum for determining need, in that the need assessment radically changed following the issuance of the PSC’s report due to a decline in oil prices.

The Sierra Club initially moved to reopen the hearing on September 27, 1982, stating that, based on information it had from an article in the Orlando Sentinel, the PSC was reopening the need evaluation based on a revised economic forecast predicting lower oil prices. The Sierra Club stated that the impact of the plant was proportional to any need; thus, if need went down, so would the level of impact allowable. The OUC and PSC responded to this motion, with the PSC stating that it was the exclusive forum for determining need, and that in any event, the PSC had not reopened the process of need evaluation, but that only some staff members had reevaluated the recommendation, still finding the plant cost effective. The hearing officer denied the motion to reopen on November 12, 1982, stating that the PSC has not receded from its earlier order finding need, and that the order was therefore binding. This order was subsequently adopted by the Board in its December 14, 1982 order.

It appears from the record that the PSC never reopened the “need” evaluation process, and that its initial determination that need was present remained unchanged. This is evidenced in a letter from the PSC chairman to the Florida Cabinet, sent on November 29, 1982, in which the chairman reiterates the findings of the PSC that the early construction of the unit is desirable from the standpoint of economic displacement of oil-fired generators. The letter continues that even with the oil price decline, oil displacement benefits could accrue in the first full year of operation, and that the determination of need continues to be well-founded.

The Sierra Club’s final contention concerning the proper role of the PSC and the hearing officer concerns the issue of conservation measures. The Sierra Club had made a proffer of evidence from Dr. Barney Capehart, the gist of which was his contention that if OUC adopted a conservation program, it would not have to participate in building the proposed power plant. The OUC objected to this testimony under section 403.519, citing it as evidence of need, a matter proper only for the PSC to consider. The hearing officer disallowed the proffered testimony, stating that it dealt with matters properly before the PSC and thus was not proper for consideration in the certification hearing.

Section 403.519 specifically provides for the PSC to “expressly consider the conservation measures taken” as part of the need determination. This is in line with section 366.81, Florida Statutes (1981), which was adopted along with section 403.519, providing for the PSC to be the appropriate agency in adopting plans related to the conservation of electrical energy and natural gas usage.

Issues of conservation were considered by the PSC in the need hearing and were specifically addressed in the order determining need, thus meeting the statutory requirements. Since conservation issues are part of the need determination, and that determination is solely for the PSC, the exclusion of the evidence here was correct, as a reevaluation of need cannot occur. The proper forum for the introduction of this evidence would have been the PSC hearing on need. The Sierra Club did not participate in this hearing, nor did it present any testimony, and it should not be allowed to raise points in an improper forum simply because it failed to present the testimony in the appropriate one.

The determination of need is solely within the jurisdiction of the PSC, and any reevaluation of need at the certification hearing would be wasteful and improper. The purpose of that hearing is to judge the impact of the plant, after a need for the plant has been determined, on the surrounding environment. This determination does not require a weighing of the need beyond that done by the PSC, and the hearing officer and Board in this case were correct in so holding.

The Sierra Club also contends that the findings of fact by the hearing officer and Board were not based on substantial, competent evidence. Specifically, the Sierra Club claims that some evidence was not considered and that the hearing officer failed to make an explicit ruling as to other testimony.

Simply because some evidence is disregarded, that does not mean that the findings themselves are not based on other substantial, competent evidence, which the finder in his judgment relied upon. Additionally, any claim that the hearing officer failed to make an explicit ruling on the facts is without merit, since the hearing officer specifically stated in his findings of fact:

To the extent that the proposed findings of fact and conclusions of law of any party in this proceeding have not been incorporated in this recommended order, those proposed findings of fact and conclusions of law are deemed irrelevant, immaterial, unsupported by competent, substantial evidence or otherwise unnecessary to the determination of this cause.

This is sufficient to show a ruling on the facts by the hearing officer. See Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1366 (Fla.1979). The decision to believe one expert over another is left to the hearing officer and the Board, and cannot be substituted by this court absent a finding of lack of competent, substantial evidence. See § 120.68(10), Fla.Stat. (1981).

There was substantial, competent evidence produced below on the issues discussed by the hearing officer in his findings of fact. Therefore, these findings, which were adopted by the Board, should not be upset by this court.

The final argument presented by the Sierra Club is that the hearing process was fundamentally unfair, denying the Sierra Club, as the only public interest representative, due process. In their argument on this point, the Sierra Club claims that the only true adversarial process was between the OUC and the Sierra Club, since the other state agencies and political organizations “had made their deals and did not critically question OUC’s experts.” The Sierra Club also claims equal opportunity was not given here, due to the unlimited funds OUC made available to itself to promote its position, which the Sierra Club could not match.

The arguments raised by Sierra in its final point are without merit. A remand of agency action is permitted if either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure. § 120.68(8), Fla.Stat. (1981). There has been no showing of that in the instant case.

The Sierra Club participated in the public hearing on land use, the certification hearing, and in the hearing before the Governor and Cabinet. At the latter two hearings, Sierra was represented by counsel and presented witnesses and testimony in its behalf. Furthermore, it was entitled to participate before the PSC, but specifically refused to do so. Thus, Sierra was given full opportunity to participate and to raise arguments as it desired. No showing is made of any violation of due process in the conduct of the hearings below, with the OUC lobbying effort not rising to the level of a constitutional deprivation requiring reversal of the Board’s order.

The certification order issued by the siting board was proper, and is accordingly,

AFFIRMED.

ORFINGER, C.J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

Judge Cobb’s opinion in this case is forceful, logical, and persuasive. Although I would like to agree with him, I think there is a contrary, equally logical interpretation of section 403.519, Florida Statutes (1981), which involves procedural due process as advocated by the Sierra Club. This question of interpretation of the Florida Electrical Power Plant Siting Act (FEPPSA) is a matter of great public importance and interest. I would certify the issue of interpretation as one which should be resolved by our state supreme court.

The FEPPSA is one of three recently enacted statutes which consolidate, coordinate, simplify and streamline the permit and licensing requirements for the construction of facilities which have regional impact and which involve numerous state and local government agencies. The question involved in this case is whether or not the procedure has been too simplified.

The FEPPSA, like the Transmission Line Siting Act (TLSA), requires an applicant to obtain various approvals and reports from specified agencies, including the Public Service Commission (PSC), as a part of its application process. Under both acts, the statutes provide that the PSC’s determination of need is a “condition precedent” to the conduct of the certification hearing. But thereafter, the two statutes differ materially concerning the effect of the PSC’s need determination.

The TLSA clearly provides that the commission’s determination of need “shall be binding on all parties to any certification proceeding”, but section 403.519 of the FEPPSA provides only that the PSC’s need determination “shall create a presumption of public need and necessity and shall serve as the commission’s report required by s. 403.507(l)(b).” Section 403.519 was an amendment to the FEPPSA which was passed at the same time as the TLSA. This makes the difference in language and treatment even more significant. The legislature knows how to make a presumption “conclusive” when it means a finding cannot be challenged. It did so under the TLSA and has done so in other statutes. But it did not so provide in section 403.519 of the FEPPSA. A presumption is generally rebuttable, and I think the need determination here should be subject to challenge at the certification hearing level.

Under the TLSA, section 403.537 clearly requires the PSC to give notice to the public and interested persons of its hearing on need. It stresses that the PSC’s determination constitutes “final agency action.” Upon reading this statute, the conclusion is inescapable that a party seeking to challenge need must appear solely before the PSC. But there are no such provisions in the FEPPSA.

At the certification hearing under the TLSA, the issues for the hearing officer’s consideration and findings are much more circumscribed than under the FEPPSA. The hearing officer’s duties under the TLSA are basically: (1) to determine the completeness of the application; (2) receive DER’s written reports and analysis; (3) conduct the certification hearing; (4) submit to the siting board a recommended order; (5) rule on motions to intervene and (6) alter time limits under the Act. The officer’s primary function appears to be the determination of disputes over the completeness or sufficiency of an application for certification.

In contrast, under the FEPPSA, the purpose of the certification hearing, according to the stipulation set out in the majority opinion, is to

hear testimony and produce facts and render findings of fact and conclusions of law on all applicable environmental, economic and other “broad interests of the public,” including those matters raised by all participating governmental agencies pursuant to specific authority in the Florida Power Plant Siting Act, so that the hearing officer can properly effect a reasonable balance between need for this facility and the environmental impact resulting from its construction and operation. .

It is difficult for me to conceive of how a hearing officer can weigh or balance the need for a plant against its adverse environmental impact if all evidence regarding the quality of the need is excluded. It is like putting a known quantity on one side of a scale, and then weighing it against an unknown on the other side. No realistic weighing can be done unless both components are examined and known.

      . The action is properly in this court pursuant to section 403.513, Florida Statutes (1981), which allows review pursuant to Chapter 120, and section 120.68(2), Florida Statutes (1981), which provides that review shall be held in the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides.

        . Balino v. Department of Health and Rehabilitative Services, 362 So.2d 21 (Fla. 1st DCA 1978); § 120.54(3), Fla.Stat. (1981).

      . §§ 403.501-403.517, Fla.Stat. (1981).

      . Art. V, § 3(b)(4), Fla. Const.

      . Hopping & Raepple, A Solution to the Regulatory Maze: The Transmission Line Siting Act, 8 Fla.St.U.L.Rev. 441 (1980).

      . §§ 403.52-403.536, Fla.Stat. (1981).

      . §§ 403.508(3), 403.537(1), Fla.Stat. (1981).

      . § 403.537(1), Fla.Stat. (1981).

      . Cf. § 742.11, Fla.Stat. (1981).

      . § 90.301(2), Fla.Stat. (1981).

      . §§ 403.525, 403.527, Fla.Stat. (1981); Hopping, supra note 4, at 448.

      . § 403.527(5), Fla.Stat. (1981).


author: COBB, Judge.

text:
    NEW LIFE ACRES, INC., a Florida corporation and Florida Farm Bureau Casualty Insurance Company, Petitioners, v. Richard Wayne STRICKLAND and Debra Lynn Strickland, his wife, Respondents.
    No. 83-939.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1983.
    Chobee Ebbets, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Daytona Beach, for petitioners.
    Angus W. Harriett, Palatka, for respondents.
   ON PETITION FOR WRIT OF CERTIORARI

COBB, Judge.

The defendant carrier below, Florida Farm Bureau Casualty Insurance Company, obtained a statement from its insured driver during the course of its investigation of a vehicular collision, which was the basis for a subsequent law suit initiated by the respondents, Richard and Debra Strickland. The trial court, over the defense objection that a copy of such sworn statement of their insured was work product and therefore privileged from discovery, directed that said material be produced by the defense. Such a statement clearly is work product. Vann v. State, 85 So.2d 133 (Fla.1956); Nationwide Insurance Company v. Monroe, 276 So.2d 547 (Fla. 2d DCA), cert. denied, 283 So.2d 366 (Fla.1973).

In their response to this court’s order to show cause, the Stricklands have failed to indicate the applicability of any of the exceptions set forth in Florida Rule of Civil Procedure 1.280(b)(2) to the general rule that the work product of a party is privileged from discovery. See Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307 (Fla. 5th DCA 1983) and Cavalere v. Graham, 423 So.2d 428 (Fla. 5th DCA 1982).

The trial court’s order departs from the essential requirements of law. Therefore, the Petition for Writ of Certiorari is granted, and the order compelling discovery is quashed.

PETITION GRANTED; ORDER QUASHED.

DAUKSCH and COWART, JJ., concur.


author: HOBSON, Judge.

text:
    Phrances HOWARD, Appellant, v. Robert F. McAULEY, Appellee.
    No. 82-933.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.
    John E. Swisher of Akerson, Swisher & Hitchens, St. Petersburg, for appellant.
    John T. Allen, Jr., and Michael J. Keane of John T. Allen, Jr., P.A., St. Petersburg, for appellee.
   HOBSON, Judge.

Plaintiff Phrances Howard appeals an interlocutory order granting defendant Robert McAuley’s “petition for rehearing” of an order denying his motion to vacate and set aside a default and default final judgment. We have jurisdiction under Florida Rules of Appellate Procedure 9.130(a)(4) and (5). We affirm.

Appellant instituted a legal malpractice, action against appellee in the autumn of 1981. Pursuant to appellant’s subsequent motion, the clerk entered a default. The court below thereafter rendered a final judgment of default in her favor. Appellee promptly filed a motion to vacate and set aside the default and default final judgment. At the conclusion of a hearing on appellee’s motion, the court orally ruled against it on the ground that appellee had failed to establish a meritorious defense. Prior to rendition of the court’s order denying appellee’s motion, appellee filed a “Petition for Rehearing.” The court later filed an order granting appellee’s petition and vacating the default and default final judgment, finding that the clerk had committed “error” by entering the default in that ap-pellee had served a motion to dismiss prior to entry of the default by the clerk.

After appellant filed her appeal, we instructed the parties to brief and argue only the issue of whether the court below had jurisdiction to entertain appellee’s “petition for rehearing.” Assuming that it had jurisdiction, there is no question but that it held correctly on the merits. See, e.g., Turner v. Allen, 389 So.2d 686 (Fla. 5th DCA 1980); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744 (Fla. 4th DCA 1974).

Appellant, noting that the order of the court below denying appellee’s motion to vacate and set aside the default and default final judgment was a nonfinal order appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), see Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982), contends that the court lacked jurisdiction to entertain his “petition for rehearing” since a petition for rehearing (i.e., a motion for rehearing) is not authorized from a nonfinal order. See Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972); Smith v. Wee-de, 433 So.2d 992 (Fla. 5th DCA 1983). She submits alternatively that, assuming the court could entertain a petition for rehearing, it lacked jurisdiction to entertain appel-lee’s “petition for rehearing” since his petition was a “nullity” in that it was filed “prematurely,” i.e., before rendition of the order denying his motion. See Tri-State Systems v. Seminole County, 302 So.2d 168 (Fla. 4th DCA 1974). Appellee responds that appellant’s alternative contentions miss the mark since he believes that, placing substance above form, his “petition for rehearing” should not be treated as such. Assuming that we agree with this assertion, he maintains that, although he may have lost his opportunity for appellate review of the nonfinal order denying his motion, various jurisdictional bases, including Florida Rules of Civil Procedure 1.540(a) and (b), existed upon which the court could entertain his petition. Mindful that the Florida Rules of Civil Procedure are to be construed to effectuate the “just” determination of every action, see rule 1.010, and that “technical forms” of pleading are abolished under such rules, see rule 1.110, we accept appellee’s arguments.

Denomination aside, appellee’s “petition for rehearing” was, for all intents and purposes, a motion for relief from judgment under rules 1.540(a) and (b). These rules read in relevant part:

Rule 1.540. Relief from Judgment, Decrees or Orders
(a) Clerical Mistakes. Clerical mistakes in judgments, decrees or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders ....
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; .... The motion shall be made within a reasonable time, and for reasons (1) ... not more than one year after the judgment, decree, order or proceeding was entered or taken ....

Although not expressly citing rules 1.540(a) or (b) in his “petition for rehearing,” appellee’s request for relief therein was easily cognizable under these rules. He asserted for the first time therein that he had served a pleading in a timely fashion and that, given rule 1.500(c), which provides that a party may plead at any time before a default is entered, the clerk had improperly entered the default under rule 1.500(a), which states that the clerk may enter a default only if the party against whom affirmative relief is sought has failed to file or serve any paper in the action.

Treating appellee’s “petition for rehearing” as a motion for relief from judgment under rules 1.540(a) and (b), we hold that, due to the clerk’s “error” as expressly found by the court below, the court correctly assumed jurisdiction pursuant to rule 1.540(a) to vacate and set aside the default and, because it rendered its final judgment of default as a result of the clerk's “error,” it also rightly assumed jurisdiction under rule 1.540(b)(1) to set aside the judgment on the ground of “mistake.” See rule 1.500(d).

Accordingly, we affirm the order granting appellee’s petition to vacate and set aside the default and default final judgment.

AFFIRMED.

OTT, C.J., and SCHEB, J., concur.

      . The Supreme Court of Florida remarked in dicta in Doctor’s Hospital of Hollywood, Inc. v.

        Madison, 411 So.2d 190 (Fla.1982), that an order granting a motion to vacate a default is not a proper matter for interlocutory review since such a nonfinal order does not, paraphrasing from Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), “determine the issue of liability in favor of a party seeking affirmative relief.”
      Whatever the import of this language in Doctor’s Hospital, it does not apply here for two reasons:
      The first reason is that appellant is challenging an interlocutory order which, in effect, granted a motion to vacate a default and default final judgment. Thus, we are vested with jurisdiction under rule 9.130(a)(4), which states in whole:
      Non-final orders entered after final order on motions which suspend rendition are not reviewable; provided that orders granting motions for new trial in jury and non-jury cases are reviewable by the method prescribed in Rule 9.110. Other non-final orders entered añer final order on authorized motions are reviewable by the method prescribed by this rule.

      (Emphasis added.) Cf. Praet v. Martinez, 367 So.2d 657 (Fla. 3d DCA 1979).
      (We cannot help but point out that the “Committee Notes” to rule 9.130(a)(4) volunteer that “[s]uch [nonfinal] orders include ... an order granting a motion to vacate default.” We believe that, given the wording of rule 9.130(a)(4), this note is inaccurate. It should read that “[s]uch [nonfinal] orders include ... an order granting a motion to vacate default and default final judgment.”)

      The second reason why the dicta in Doctor’s Hospital does not apply here is because the order appellant is attacking was, as we view the case, entered on a motion filed pursuant to Florida Rule of Civil Procedure 1.540. See body of opinion, infra. Therefore, we are also vested with jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(5), which reads in full:
      Orders entered on motions filed pursuant to Fla.R.Civ.P. 1.540 are reviewable by the method prescribed by this rule.

        Cf. Praet.

      . Appellee filed his “petition for rehearing” not more than one year after entry of the final default judgment.

      . Florida Rule of Civil Procedure 1.500(d) provides in its entirety:
      (d) Setting Aside Default. The court may set aside a default and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with Rule 1.540(b).


author: OTT, Chief Judge.

text:
    W. Donald ROBERTS, Appellant, v. John D. JASSY and R. Keith Jassy, as Personal Representatives of the Estate of David Jassy, Deceased, Appellees.
    No. 82-2170.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.

      H. Stephen Frank and Jerrold S. Stern, Fort Myers, for appellant.
    Robert L. Donald and William H. Shields of Pavese, Shields, Garner, Haverfield, Dalton & Cottrell, Fort Myers, for appellees.
   OTT, Chief Judge.

The appellant brought suit against David Jassy and several others to recover brokerage commissions. During the course of the litigation (about seventeen months after suit was filed), David Jassy died. His attorney filed a suggestion of death in the case. Appellees were appointed co-personal representatives of the estate of David Jassy. The personal representatives were promptly served with a copy of the complaint and a few days thereafter were duly substituted in the case as defendants by court order dated January 26, 1982.

The litigation proceeded and the case was ultimately assigned a trial date of March 17,1982. On March 15,1982, appellees filed a motion to dismiss asserting that appellant had failed to comply with the “Non-Claim Statute of the Probate Code.” This motion to dismiss remained pending, and trial was rescheduled and then continued several times.

Ultimately, trial was scheduled for September 20, 1982. The appellees filed a second motion to dismiss on July 22, 1982, again alleging that appellant had not filed a claim in the estate and the time for filing claims had expired. The nonclaim period having expired March 10, 1982, the trial court dismissed the suit against appellees, and this appeal followed.

Section 733.702(1), Florida Statutes (1981), provides that no claim that arose before the death of a decedent shall be binding on the estate or personal representative unless presented within three months of the first publication of the notice of administration. Section 733.702(2), directly applicable to the facts of this case, provides:

No cause of action heretofore or hereafter accruing, including, but not limited to, actions founded upon fraud or other wrongful act or omission, shall survive the death of the person against whom the claim may be made, whether an action is pending at the death of the person or not, unless the claim is filed in the manner provided in this part and within the time limited.

(Emphasis added.) By the very words of the statute appellant’s claim is rendered void, and we have no choice but to affirm the order appealed. However, we feel compelled to comment on the inequitable and harsh result in this case.

In In re Williamson’s Estate, 95 So.2d 244 (Fla.1956), the court stated:

We have held it to be a matter of public policy in this state that the estates of decedents shall be speedily and finally determined with dispatch. It is pursuant to this policy that statutes of nonclaim such as the one under consideration have been enacted by the Legislature. While it is not the purpose of the Probate Act to restrict unreasonably the rights of creditors, it is nonetheless the objective of the Act to expedite and facilitate the settlement of estates in the interest of the public welfare and for the benefit of those interested in decedents’ estates. In re Jeffries’ Estate, 136 Fla. 410, 181 So. 833.

Id. at 246. Prior to adoption of the 1974 Florida Probate Code, section 733.16(l)(a), Florida Statutes (1973), the nonclaim statute, permitted a claimant to file suit and serve the personal representative within the applicable six-month time period rather than file a claim.

In Kornblum v. Heflin, 183 So.2d 843 (Fla. 2d DCA 1966), we held that “the filing of a motion to substitute a personal representative is ... the equivalent to filing suit against the estate within the meaning of section 733.16(l)(a).” Thus, appellant would prevail under the prior statute. Such a result unquestionably comports with the public policy of this state as enunciated in In re Williamson’s Estate, supra. The personal representative is put on notice that the claim exists and can promptly evaluate it and notify beneficiaries.

The 1974 Florida Probate Code drafters opted to follow many reforms recommended by the Uniform Probate Code. The general comment to article 3, part 8, Uniform Probate Code, stresses the need for uniformity of law from state to state in the area of creditors’ claims. Notwithstanding, section 733.702(2) is completely contrary to the recommendation of the Uniform Probate Code, section 3-804(2), which reads:

The claimant may commence a proceeding against the personal representative in any Court where the personal representative may be subjected to jurisdiction, to obtain payment of his claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim. No presentation of claim is required in regard to matters claimed in proceedings against the decedent which were pending at the time of his death.

(Emphasis added.) This provision clearly follows the expressed public policy of this state that estates of decedents be settled as expediently as possible without unduly restricting the rights of creditors.

We fail to understand why our legislature, in its infinite wisdom, chose to place a burden on creditors who are already litigating their claims.

While we are sympathetic with appellant here who spent nearly two years in court, only to be dismissed on a technicality, the requirement of the nonclaim statute is clear. The trial court was correct, and his order of dismissal is, therefore, AFFIRMED.

GRIMES and SCHOONOVER, JJ., concur.

      . See generally Fenn & Koren, The 1974 Florida Probate Code — A Marriage of Convenience, 27 U.Fla.L.Rev. 1 (Fall 1974).

      . Cf., Pierce v. American Bank & Trust Co., 433 So.2d 655 (Fla. 1st DCA, 1983).


author: CAMPBELL, Judge.

text:
    LA BOUTIQUE OF BEAUTY ACADEMY, INC., a Florida corporation, Appellant, v. Dennis R. MELOY, David M. Meloy, John W. Heaberlin and Marilyn F. Heaberlin, Appellees.
    No. 82-2675.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.

      David E. Olson of Speer & Olson, P.A., Holiday, for appellant.
    Roger P. Hartley of Donald F. Kalten-bach, P.A., New Port Richey, for appellees, Dennis R. and David M. Meloy.
    No appearance for appellees, the Heaber-lins.
   CAMPBELL, Judge.

La Boutique of Beauty Academy, Inc., the mortgagee in this case, appeals the trial judge’s order granting summary judgment in favor of the mortgagors, Dennis and David Meloy. We affirm.

The mortgagors received the property in question from the Heaberlins and, in so doing, assumed the mortgage held by appellant. According to the terms of the note and mortgage, payments were due on the 26th of each month; there was also a fifteen day grace period that extended the time in which proper payment could be made.

According to the information contained in affidavits filed by both parties, the problems giving rise to this law suit came about in the following manner. Appellee, Dennis Meloy, issued a check on October 1, 1981, for the mortgage payment due September 26. Thus, the check was written during the grace period. Earlier, he had deposited some checks issued by his tenants into the same checking account. Appellant received appellees’ check on October 12, one day beyond the grace period. Nevertheless, appellant’s president accepted this payment, as she had accepted a payment made in July which was also beyond the grace period, and deposited the check the next day. The bank returned the check for insufficient funds on October 14. On October 16, appel-lees learned that one check issued by one of their tenants had been returned for insufficient funds. Dennis Meloy then went to his bank and deposited cash to cover the bad check. Meanwhile, appellant again presented appellees’ check for payment on October 16 and was told that there were still insufficient funds. Since Meloy did not deposit cash to cover his tenant’s bad check until the afternoon of the 16th, which was a Friday, the deposit would not have been credited until the next banking day, which was the following Monday, October 19. For some reason, however, Meloy’s deposit was not even credited on that day, rather, it was apparently credited to his account later that week. Appellant’s president presented ap-pellees’ check "again on Monday the 19th, but because the bank had not formally credited the deposit, one of its employees again informed appellant’s president that there were insufficient funds. Appellant then sent notice of acceleration to appellees on October 23. Until that time, appellees, not knowing that any default had occurred and not having received any notice of insufficient funds, believed that any deficit of available funds in their account had been cured on the 16th by the cash deposit.

After appellant formally sued to foreclose the mortgage, both parties moved for summary judgment, and after a hearing on those matters, the trial judge granted ap-pellees’ motion and denied appellant’s motion.

Initially, we note that neither party has questioned whether this case was ripe for summary judgment, so we do not address that question. The trial judge, after examining the pleadings and affidavits and hearing arguments of counsel, decided that it would be unconscionable to allow acceleration under these circumstances. We agree with the trial judge, however, we also believe that we can affirm under a slightly different but supportive rationale.

The trial judge’s conclusion is soundly supported by Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1928), and by Althouse v. Kenney, 182 So.2d 270 (Fla. 2d DCA 1966). Both cases recognize that in some circumstances a court of equity may refuse to foreclose a mortgage when to do so would be unjust and unconscionable. In Campbell v. Wer-ner, 232 So.2d 252 (Fla. 3d DCA 1970), the court noted that this rule applies only when the pleadings or proof and the surrounding circumstances support such action by a trial judge. The pleadings here, coupled with the circumstances which we have detailed, clearly support the findings of the trial judge. Although a mortgagee may properly, upon default by the mortgagor, elect to accelerate, Uwanawich v. Gaudini, 334 So.2d 116 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1977); Guynn v. Brentmoore Farms, Inc., 253 So.2d 136 (Fla. 1st DCA 1971), our courts have consistently noted that acceleration will be denied where the default is merely technical or where the overall equities of a particular case warrant such a result. River Holding Co. v. Nickel, 62 So.2d 702 (Fla.1952); Amerifirst Federal Savings & Loan Ass’n v. Century 21 Commodore Plaza, Inc., 416 So.2d 45 (Fla. 3d DCA 1982); Rockwood v. DeRosa, 279 So.2d 54 (Fla. 4th DCA 1973); Pearson v. Arthur, 248 So.2d 227 (Fla. 3d DCA 1971); Schechtman v. Grobbel, 226 So.2d 1 (Fla. 2d DCA 1969); Koschorek v. Fischer, 145 So.2d 755 (Fla. 2d DCA 1962); and Lieberbaum v. Surfcomber Hotel Corp., 122 So.2d 28 (Fla. 3d DCA 1960).

In fact, the instant case is very similar to Pearson v. Arthur. There the mortgage initially provided a fifteen day grace period that was later reduced to ten. The mortgagor continued making payments beyond the new grace period but within the old one. The mortgagee accepted these payments for a time and then sent a notice of acceleration which crossed in the mail with the late payment. The court affirmed the denial of the right to accelerate, saying that the equities of the case, coupled with the mortgagee’s prior acceptance of payments outside the grace period, estopped the mortgagee from accelerating the note and foreclosing the mortgage. That same reasoning applies here, and it introduces an alternative ground for affirmance which we believe is applicable.

In Campbell v. Werner, the court, in discussing the relationship between defaulting mortgagors and their mortgagees, noted that acceleration of a mortgage could be denied

where the right to accelerate has been waived or the mortgagee estopped to assert it, because of conduct of the mortgagee from which the mortgagor (or owner holding subject to a mortgage) reasonably could assume that the mortgagee, for or upon a certain default, would not elect to declare the full mortgage indebtedness to be due and payable or foreclose therefor; or where the mortgagee failed to perform some duty upon which the exercise of his right to accelerate was conditioned; or where the mortgagor tenders payment of defaulted items, after the default but before notice of the mortgagee’s election to accelerate has been given (by actual notice or by filing suit to foreclose for the full amount of the mortgage indebtedness); or where there was intent to make timely payment, and it was attempted, or steps taken to accomplish it, but nevertheless the payment was not made due to a misunderstanding or excusable neglect, coupled with some conduct of the mortgagee which in a measure contributed to the failure to pay when due or within the grace period.

232 So.2d at 256-57 (footnotes omitted). These specific situations are really nothing more than a nonexclusive list of equitable considerations that should be examined whenever a mortgagor is accused of defaulting on his obligations. Appellant’s own affidavit, filed by its president, states that appellees “consistently ... failed to make payments when due” and then noted that the July, 1981, payment had been made beyond the grace period. This conduct, in our view, falls within the first situation described in Campbell because appellees could fairly believe that since appellant had not exercised its acceleration rights after prior defaults, it would not do so this time either. Thus, appellant is estopped from now exercising these acceleration rights. Kreiss; Pearson; Smith v. Landy, 402 So.2d 441 (Fla. 3d DCA 1981); 37 Fla.Jur.2d, Mortgages § 218 (1982).

Accordingly, because the mortgagee, by its own conduct, led appellees to believe acceleration would not occur following a late payment and because under the circumstances of this case acceleration and foreclosure would be inequitable, we affirm the order granting summary judgment for the mortgagors and denying it as to the mortgagee. Appellees’ motion for attorney’s fees is denied.

AFFIRMED.

BOARDMAN, A.C.J., and LEHAN, J., concur.


author: CHEATWOOD, J.C., Associate Judge.

text:
    Andrew BRUSKO, Jr., Appellant, v. CIRCLE OF SEMINOLE, INC., a Florida corporation, Appellee.
    No. 82-2829.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.
    Robert K. Hayden, Clearwater, for appellant.

      Peter T. Hofstra of DeLoach & Hofstra, P.A., Seminole, for appellee.
   CHEATWOOD, J.C., Associate Judge.

Andrew J. Brusko, plaintiff below, appeals a final judgment awarding him $5,000 in damages rather than the $9,000 that he had requested in his complaint. We reverse and remand for entry of judgment in Brus-ko’s favor for the entire $9,000.

Brusko entered into a written contract to purchase real property from appellee, The Circle of Seminole, Inc. (“Seminole”). At the time he signed the contract, on October 18, 1980, Brusko delivered to Seminole the sum of $1,000, which was stated in the contract to be an earnest money deposit made in part payment of the total purchase price of $39,500. The contract also provided, “Additional payment of $9,000.00 due on or before November 15, 1980.”

Brusko timely paid the $9,000 sum but did not close on the contract. Upon Brus-ko’s default, Seminole retained the entire $10,000 paid by Brusko. Brusko sued Seminole, admitting that the real estate contract would allow Seminole to retain the $1,000 earnest money deposit paid when the contract was signed, but claiming that retention by Seminole of the other $9,000 was improper. The contract provided that, if Brusko failed to perform, Seminole could terminate the contract “and the purchaser shall forfeit said earnest money or deposit; [sic] and the same shall be retained by the Seller, as liquidated damages.... ”

In its answer to the complaint, Seminole claimed that the entire $10,000 was earnest money subject to the liquidated damages clause in the contract. In its counterclaim, Seminole also asked for actual damages because it had been required to pay real estate tax on the property and a real estate commission. In his affirmative defenses to Seminole’s counterclaim, Brusko responded that Seminole was entitled to no damages other than the $1,000 earnest money deposit.

After a nonjury trial, the trial court found that the $1,000 was an earnest money deposit subject to the liquidated damages clause and that Seminole had not established that the additional $9,000 was to be applied toward damages in the event of a default. The court further found that Seminole was entitled to $4,000 in actual damages. Thus, the trial court ordered Seminole to return the $9,000, after setting off the $4,000 damage award, leaving a $5,000 judgment in favor of Brusko.

We find that the trial court should have entered judgment for Brusko for the entire $9,000. Once the trial court determined that only the $1,000 earnest money deposit was subject to the liquidated damages clause, he should not have awarded damages in excess of that sum. As in Williams v. Stewart, 424 So.2d 204 (Fla. 2d DCA 1983), the parties had agreed that forfeiture of the purchaser’s earnest money deposit would be the appropriate remedy in the event of a breach by the purchaser. This court held that the vendors in Williams were not entitled to seek from the purchaser any damages over and above the earnest money deposit contrary to the terms of the contract. 424 So.2d at 205.

Accordingly, this cause is REVERSED and REMANDED to the trial court for entry of judgment for Brusko in the amount of $9,000.

RYDER, A.C.J., and CAMPBELL, J., concur.


text:
    STATE of Florida, Appellant, v. David Bruce ADAMS, Appellee.
    No. 83-160.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellant.
    Harry Blair of Harry A. Blair, P.A., Fort Myers, for appellee.
   PER CURIAM.

The state appeals an order granting defendant David Adams’ motion to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). We reverse and remand.

Defendant was charged by information with aggravated assault. He filed a motion to dismiss. In his motion, he alleged that the officers were attempting to execute an invalid search warrant when the alleged aggravated assault on the officers occurred. The state traversed the above allegation.

After a hearing, the motion to dismiss was granted, apparently based on the invalidity of the search warrant.

Even assuming that the search warrant were invalid, we think the trial court erred in granting defendant’s motion to dismiss. The validity or invalidity of the search warrant had no relevance to the crime charged, The crime occurred while the police officers were attempting to execute a search warrant. If the warrant were indeed invalid, only evidence secured under the authority of the warrant would be suppressed. The position advanced by appellee, taken to its logical extreme, would support dismissal of a homicide charge if an officer had been killed attempting to execute a search warrant, based on the fact that the search warrant was deficient.

Under the facts of this case, the aggravated assault charge cannot be determined on a motion to dismiss under rule 3.190(c)(4).

Accordingly, the order below dismissing the information against defendant is hereby reversed and this cause is remanded to the trial court for proceedings consistent with this opinion.

HOBSON, A.C.J., and GRIMES and SCHOONOVER, JJ., concur.


author: LEHAN, Judge.

text:
    In re the Petition of Kerry Mack HOOPER, to Change Name.
    No. 83-288.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 1983.

      Kerry Mack Hooper, Englewood, pro se.
    Priscilla Ruth MacDougall, Madison, Wis., and James K. Green of Green, Eisenberg & Cohen, West Palm Beach, Florida Association of Women Lawyers, amicus curiae for appellant.
   LEHAN, Judge.

Petitioner Kerry Mack Hooper appeals from an order of the circuit court denying her petition for a change of name which sought to have her birth-given name reinstated in place of her former husband’s surname which she had retained at the time of the dissolution of her marriage. We reverse.

The uncontested petition for change of name was sworn to and the following allegations were acknowledged as being true: Petitioner has been a bona fide resident and domiciliary of Charlotte County, Florida, since June 17,1982. Petitioner was born to Kenneth and Catherine Mack on November 16, 1943, in New York City. On June 8, 1962, petitioner’s name was changed from Mack to Adcock as a result of her marriage to Thomas Adcock in St. Petersburg, Florida. Her name was changed back to her birth-given name by final decree of divorce entered in Pinellas County on November 2, 1964. On April 3, 1969, petitioner married Jack Hooper in New Orleans, and three children were born of that marriage. On September 12,1975, petitioner was divorced from Jack Hooper in Florida and was given custody of the three minor children, who are still minors and live with the petitioner in Charlotte County. Her name was not changed back to her birth-given name at the time her second dissolution of marriage decree was entered. The children have the surname of their father, Jack Hooper. The petitioner currently is not married. She has been known only by her maiden name, her married name of Adock, and her married name of Hooper. She has never been adjudicated bankrupt nor has she been convicted of a felony. No money judgment has ever been entered against her. The petition, which listed all her prior places of residence, states that it was filed for no ulterior or illegal purposes and that granting the petition would not invade the property rights of others.

A hearing was held on the petition. There is no transcript of the hearing. On January 11, 1983, the trial court denied the petition without stating its reasons. Petitioner then filed timely notice of appeal.

Although the record in this case contains no grounds for the trial court’s action, there is a suggestion that the reason may have been that upon a change in petitioner’s name, petitioner’s minor children would then have a name different from that of their mother. We do not find that a reason of that nature would constitute grounds for denial of the petition here. See Moskowitz v. Moskowitz, 118 N.H. 199, 385 A.2d 120 (1978).

Section 68.07, Florida Statutes (1981), which contains requirements to be met to authorize a name change, does not provide for any restriction for a change of name by a custodial mother whose children would have a name different from that of their mother. The right of a woman to her birth-given name, notwithstanding marriage, is established under Florida law. See Marshall v. State, 301 So.2d 477 (Fla. 1st DCA 1974); Davis v. Boos, 326 So.2d 226 (Fla. 3d DCA 1976). See also Egner v. Egner, 133 N.J.Super. 403, 337 A.2d 46 (N.J. 1975). Absent injury to the rights of others, there appears to be no reason why a woman’s failure to assert that right upon her marriage should prevent her from doing so later, i.e., at the time of her divorce or thereafter.

A divorced mother’s remarriage apparently is “a statistical probability.” Egner, 337 A.2d at 48. The dissimilarity of a divorced mother’s and her children’s names is not prohibited upon her remarriage and her assumption of her new husband’s name. Arnett v. Matthew, 259 So.2d 535 (Fla. 1st DCA 1972). Relative to the interests of the children, we can see no distinction between that situation and the facts of this case. Lazow v. Lazow, 147 So.2d 12 (Fla. 3d DCA 1962).

Accordingly, we reverse and remand. On remand, the trial court is directed to grant the relief requested if it finds the allegations are in fact true as alleged.

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