author: SCHEB, Judge.

text:
    Robert W. BRADEN, Appellant, v. Clara BRADEN, Appellee.
    No. 82-1184.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1983.
    Clyde H. Wilson of Wilson, Wilson, Na-mack & Jaffer, Sarasota, for appellant.
    Clara N. Braden, pro se.
   SCHEB, Judge.

Robert W. Braden complains of the trial court’s order on his petition for accounting, to purge contempt charges, and to modify alimony payments previously awarded to his former wife Clara Braden. We affirm the trial court except in its refusal to determine appellant’s entitlement to reimbursement for certain expenses he sustained in respect to properties jointly owned with his former wife in Florida and South Carolina.

On July 30, 1979, the circuit court in Sarasota County entered a final judgment dissolving the Bradens’ long-term marriage. Among other things, the dissolution judgment provided that title to the Bradens’ property interests in St. Lucie County, Florida would be held as tenants in common. It further provided the Bradens would continue to jointly own their former marital home in Taylor County, Texas and two parcels of real property in Myrtle Beach, South Carolina. The judgment stipulated that the parties were to be equally responsible for expenses on the Florida property and to equally divide any income and expenses in respect to the Texas and South Carolina properties.

On May 12, 1981, the husband petitioned the court seeking various forms of relief, including a request for an accounting between the parties as to their monetary obligations under the 1979 judgment and a subsequent court order entered October 27, 1980. The husband admitted owing the wife approximately $3,550. However, he claimed she owed him over $4,500 for her portion of the expenses of upkeep and mortgage payments made on the former marital home in Texas and taxes and mortgage payments on the Florida and South Carolina properties.

After the husband filed his petition in the case now before us, he purchased the marital home in Texas pursuant to a final judgment entered in a partition suit in the District Court of Taylor County, Texas on November 20, 1981.

The trial court conducted an evidentiary hearing on the husband’s petition for accounting and other relief in the present case on January 18, 1982. The court ordered a decrease in alimony being paid by the husband but denied his other requests. Specifically the court stated:

1. Husband’s request for credit in reference to expenses on the Texas property is denied. All such claims were either litigated in the Texas litigation, or should have been so litigated.
2. Any taxes paid on other properties is a proper claim in any partition action on those properties and not proper to be considered in these proceedings.

This appeal ensued with the husband rais-' ing four points. His first three arguments are without merit; however, his fourth contention that the court erred in denying him the relief as sought in his petition for accounting does merit discussion.

In support of his fourth point, the husband argues that his claim for expenses with respect to the Texas property was never litigated in the Texas partition suit. The wife testified to the contrary. Irrespective of this conflict in the testimony, under Texas law these matters could and should have been litigated in the partition proceeding since the courts in Texas adjust all equities between parties in a partition suit. See Day v. Day, 421 S.W.2d 703 (Tex. Civ.App.1967); Gonzalez v. Gonzalez, 552 S.W.2d 175 (Tex.Civ.App.1977). Therefore, the doctrine of res judicata bars further litigation of these issues which could or should have been tried in the Texas proceedings. Holcomb v. Brown, 473 S.W.2d 595 (Tex.Civ.App.1971). See also Hudson v. Gooden, 546 S.W.2d 931 (Tex.Civ.App.1977). Thus, the trial court properly concluded the husband’s claims for reimbursement of expenses in respect to the Texas property were or should have been litigated in the Texas court, and the doctrine of res judica-ta precluded them from being raised in the proceedings now before us. Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680 (1952); Pumo v. Pumo, 405 So.2d 224 (Fla. 3d DCA), petition for review denied, 412 So.2d 469 (Fla. 1981); 32 Fla.Jur.2d, Judgments and Decrees § 107 (1981). We hold, therefore, that the court was correct in denying the husband’s request for credit in reference to such expenses.

The husband introduced evidence of payments he made in respect to the Florida and South Carolina properties. As noted, the court indicated such claims would be proper in any partition action involving those properties. We agree. However, it is unclear from the record whether these are being resolved in any partition suits. We hold that the husband is entitled to a credit for the wife’s share of the expenses on the Florida and South Carolina properties which he has already paid, providing such credit has not already been allowed in a partition proceeding.

We remand to the trial court to determine the husband’s entitlement to credit and to award such sum as a setoff against the husband’s indebtedness to the wife. Otherwise, we affirm.

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


source: Caselaw Access Project

author: GLICKSTEIN, Judge. BERANEK, Judge,

license: Public Domain

text:
    STATE of Florida, Appellant, v. Joan DROWNE and George Drowne, Jr., Appellees.
    No. 82-908.
    District Court of Appeal of Florida, Fourth District.
    April 13, 1983.
    As Modified on Motion for Rehearing Aug. 31, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellant.
    Thomas A. Bratten of Bratten & Harris, P.A., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

The state appeals from an order suppressing evidence obtained pursuant to execution of a search warrant at. the residence of a law enforcement officer and his wife. We affirm the result and commend the effort and attention given by the trial judge to his order, which reflects his analysis. It is of immense assistance to this court to know the basis for a trial court’s decision.

The case boils down to two basic issues: whether the affidavit which led to the search warrant was legally sufficient; and if so, whether there was a violation of the “knock and announce” requirement in its execution. Although we disagree with the trial court’s analysis of the first issue, we agree with respect to the second.

I

We quote in large measure from the affidavit because that is the only way to explain to the trial court and the parties our analysis. The measure of an affidavit leading to a search warrant is set forth in former Justice Goldberg’s significant opinion in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965):

These decisions reflect the recognition that the Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

The basis for the issuance of the search warrant has been described by this court in State v. Powers, 388 So.2d 1050, 1051 (Fla. 4th DCA 1980), petition for review dismissed, 397 So.2d 778 (Fla.1981), as follows:

Search warrants are issued upon probable cause and facts constituting probable cause need not meet the standard of conclusiveness and probability required of circumstantial facts upon which a conviction may be based. State v. Heape, 369 So.2d 386 (Fla. 2d DCA 1979). Thus, interpretation of the facts in a “commonsense and realistic fashion,” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), may result in an inference of probable cause to believe that criminal objects are located in a particular place to which they have not been tied by direct evidence. United States v. Valenzuela, 596 F.2d 824 (9th Cir.1979), cert. denied 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979).

(Emphasis original.)

We believe that application of the foregoing reduces the essence of the affidavit to three categories:

1. Who the maker of the affidavit was and the circumstances under which he made it.

From the record, we glean the maker to be a very experienced, well-trained law enforcement officer and conclude that he was caught up in preparation for execution of the anticipated search warrant scheduled for the night of July 3, 1981; that some degree of accelerated activity was involved; and that there was little concern for paragraph structure. We have no way of knowing whether there was available to him a legal adviser, trained in such matters, to edit his work product or the time in which to do it.

2. What the informant was told by Joan Drowne and when.

She told him that she presently had marijuana in her residence; that she would have “dope” at her residence over the weekend of July 4, 1981; and that there were two machine guns on the premises. The circuit judge who subsequently issued the search warrant could have reasonably concluded that all of those statements were made on one occasion by Joan Drowne; and that reference to a forthcoming holiday weekend could have reasonably been made in close proximity to it. The disclosure by the informant to the law enforcement officer on July 2, 1981, rather than at the earlier meeting, would support this reasonable conclusion.

3. What the informant observed in the Drowne residence and when.

He saw numerous weapons — unde-scribed — -in the Drowne residence in the three weeks prior to July 2,1981; and, over the past two years, he had seen both appel-lees smoking marijuana. The former observation would strengthen the likelihood in the mind of the issuing circuit judge that Joan Drowne's reference to there being machine guns in the residence was made in the few weeks before the affidavit was presented to him. The second observation would corroborate the likelihood of the presence of marijuana.

Without attempting to be quarrelsome, we question the interpretation given to an affidavit by the appellate court in Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980), upon which appellees rely. Therein it was held that the following affidavit did not sufficiently establish probable cause because it did not indicate when the informant observed the contraband:

Heretofore, within the past ten days a confidential informant, who has proven reliable in the past, said informant having led to the arrest of persons for drug violations, further it is known by your affiant that said confidential informant has knowledge of the appearance, texture and odor of marijuana, advised your affi-ant that a quantity of marijuana was inside the above described premises and that said marijuana was observed by said confidential informant. Therefore, your affiant has probable cause to believe that marijuana is now being kept in the above described premises. [Emphasis added.]

Id. at 861. Let us assume that in lieu of an affidavit the issuing circuit judge had sworn the affiant, asked him the following question and received the following answer:

Q. In the last ten days, what, if anything, did the informant advise you?
A. He advised me there was marijuana in the home.

In such dialogue, it seems reasonable to us that the questioning judge could have concluded that there was marijuana in the home at or about the time the informant relayed his information. We so conclude because people interchange “was” and “is” when they speak. Were we to be more esoteric, we would refer to the third division of “meaning”; namely, “pragmatics,” which is described in R. Dickerson, Legal Drafting 34 (1981), as follows:

Pragmatics, which deals with the relation between words and their users or hearers. This considers the psychological consequences of the fact that established meanings constitute verbal habits.

(Emphasis added.)

In contrast to the affidavit in Orr, however, that which the court invalidated in King v. State, 410 So.2d 586, 586 (Fla. 2d DCA 1982), recited, in part:

[Y]our affiant’s reason for his belief is that within the last six days he met with a confidential and reliable informant who advised him that inside 118 Lake Avenue, Apt. A, Largo, Pinellas County, Florida, he observed one Diana King rolling handmade cigarettes filled with what he believed to be cannabis (marijuana).

(Emphasis added.) Again, assume the issuing judge had sworn the affiant, asked the following question and received the following answer:

Q. In the last six days, what, if anything, did the informant tell you?
A. That he saw Diana King inside the house rolling cigarettes with what he thought was marijuana.

In the latter hypothetical, unlike the first, “saw” is not practically interchangeable in modern speech with “see” as “was” with “is.” Accordingly, we can understand the result in King. Like the first hypothetical, however, the affidavit in the present case is reasonably tied to a time frame, in that it is in close proximity to July 2, 1981.

ON MOTION FOR REHEARING

We withdraw the latter part of the earlier opinion State v. Drowne, 436 So.2d 916 (4th DCA Apr. 13, 1983) that commences with the discussion of II and substitute therefor the following:

II

As for the second issue, the trial court found:

Pursuant to said Affidavit, a Search Warrant was authorized by a Judge. Thereafter, in the evening hours of July 3, a plain-clothes investigator from the State Attorney’s office, together with a SWAT team surrounded the Drowne residence and prepared to execute the Search Warrant. As the investigator and the SWAT team approached the house, an 11 to 13-year-old son of the Drownes opened the front door and yelled at two of the family dogs located in the garage to be quiet. At that time, the investigator for the State Attorney’s office and one or more members of the SWAT team began running toward the front door apparently unseen by the boy. The boy started to close the door and in fact had moved it from a position of approximately 90 degrees open to approximately 45 degrees open when one of the officers grabbed the door, opened it further, and the investigator and members of the SWAT team stepped to the door where they were met immediately by Mrs. Drowne, who became hysterical, screaming and yelling at the officers. She was advised that they were in fact police officers and was shown a Search Warrant and told that the Warrant was going to be executed. They entered the house with Mrs. Drowne still inquiring as to how she should be assured that they were in fact police officers. Following the finding of the evidence from the rear portion of the house, Mrs. Drowne was shown identification that the investigator was with the State Attorney’s office. Mr. Drowne was not present when the Warrant was executed.

It concluded:

In the instant case, the Drowne’s son was closing the door, not having seen the officers when the door was grabbed by the officers and opened with the officers stepping to the door. There was no knock by the officers, no notice of the officers’ authority, and no refusal of admittance to the house prior to their grabbing of the door and opening of it. While the officers may in fact have announced their authority and purpose once the door was open, such is insufficient in view of the fact that the breaking had already occurred. Nothing prohibited the officers from waiting until the door was closed by the Drowne’s son and then their knocking and announcing their authority and purpose. Further, there was no evidence that the officers had reasonable grounds to believe that the evidence would be destroyed or that their safety would be threatened by knocking and announcing. Earman vs. State, 265 So.2d 695 (Fla.1972), State v. Collier, 270 So.2d 451 (Fla. 4th DCA 1972).

The trial court quoted at length from Benefield v. State, 160 So.2d 706 (Fla.1964):

Entering one’s home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial. It was condemned by the yearbooks of Edward IV, before the discovery of this country by Columbus.... William Pitt categorized a man’s home as his castle. Paraphrasing one of his speeches in which he apostrophized the home, it was said in about this fashion: The poorest pioneer in his log cabin may bid defiance to the forces of the crown. It may be located so far in the backwoods that the sun rises this side of it; it may be unsteady; the roof may leak; the wind may blow through it; the cold may penetrate it and his dog may sleep beneath the front steps, but it is his castle that the king may not enter and his men dare not cross the threshold without his permission.

Id. at 709.

This sentiment has moulded our concept of the home as one’s castle as well as the law to protect it. The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call. There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the law protects its entrance so rigidly. The law so interpreted is nothing more than another expression of the moral emphasis placed on liberty and the sanctity of the home in a free country. Liberty without virtue is much like a spirited horse, apt to go berserk on slight provocation if not restrained by a severe bit.

Id. at 709.

We repeat our initial statement that we agree with the trial court’s analysis of this second issue. The officers knew of their obligation to knock and announce when they undertook to execute the search warrant. Although they were aware of machine guns in the residence, there is absolutely nothing in the record to indicate that a modern day Dillinger type character was inside ready to use them. As it turned out, the persons in the home were a woman and children. What the trial court was unwilling to do was to allow the swarming officers to be excused from their obligation not to break the close before providing notice of their authority and purpose — in the absence of additional facts which would establish exigent circumstances, or circumstances indicating the requirement of compliance to be an idle gesture. It would be inappropriate for us to re-interpret the facts as found by the trial court in the absence of any misperception by the trial court of the probative effect of the evidence. Moreover, we share the trial court’s apparent revulsion to the officers’ forcing the front door of the home to remain open when the young child was attempting to close it. The trial court obviously believed it to be an unnecessary precipitate act.

We find State v. Manning, 396 So.2d 219 (Fla. 4th DCA 1981), petition for review denied, 407 So.2d 1104 (Fla.1981), to be factually distinguishable. In that case the officers had knocked. In Manning this court discussed the interests to be protected in applying the rule; and concluded the circumstances of that case, after knocking, did not prevent the officers’ entry. In this case we have an unnecessary, premature invasion of the home. Society unanimously rejects unnecessary violence and invasion of rights.

In affirming, we judges acknowledge our study of matters on “instant replay”; and that law enforcement officers function without such luxury. To them suddenness is as routine as studied consideration of a legal issue is to us. Undoubtedly, it would be an education for us to ride with such officers to understand how quickly and unexpectedly events occur each day to which they must make intelligent, trained responses. Moreover, we must apply the same test towards their actions in response to these events as we do to their draftsmanship of affidavits. Nevertheless, these same officers must be consciously aware of the law in order to react properly to the sudden incidents they experience. Had they been so aware of their responsibilities under the knock and announce rule — and the reasons for such rule — the approach in this case would perhaps have led to a proper seizure.

November 15,1982, was the centennial of the birth of the late Justice Felix Frankfurter. In memorializing the occasion, the comments of Edwin M. Yoder, Jr., seem an appropriate conclusion to our remarks:

Frankfurter’s judicial bent is best epitomized in a story. Friends had taken him, late in life, to see Robert Bolt’s great play about Sir Thomas More, A Man For All Seasons. In one scene, More’s son-in-law, Roper, indignantly declares that he would cut down every law in England to get at the Devil.
“Oh,” More responds. “And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws.... Man’s laws, not God’s — and if you cut them down ... then d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”
As More’s lines were spoken, Frankfurter, edging forward in his seat, enthusiastically whispered: “That’s it! That’s it!”

DELL, J., concurs.

BERANEK, J., concurs specially.

BERANEK, Judge,

concurring specially on rehearing.

I limit my concurrence to the result (af-firmance) stated in the original opinion.

      . The heart of the affidavit recited:
      Your affiant Marvin Forman is a police officer for the Town of Palm Beach and has been so employed for the past 13 years. Your affiant is presently assigned to investigate matters pertaining to internal affairs of the police department. Your affiant has worked in the Detective Division, Internal Affairs Unit, Intelligence and Organized Crime Bureau over the past 11 years, and has received approximately 2,000 hours of training in Law Enforcement subjects including narcotics and drug enforcement. Your affi-ant has worked in the aforementioned units since about 1970 and has investigated numerous cases involving the investigation of criminal acts and activity.
      During the week of June 22, 1981, your affiant contacted a confidential informant whose name was supplied to your affiant by the Palm Beach County State Attorney’s Office, Florida. Your affiant personally met with the confidential informant during the week of June 22, 1981. Confidential informant is a good citizen in the community, is not pending criminal charges, has never been arrested and is not a paid informant. The confidential informant wishes to remain anonymous for fear of reprisal. This confidential informant has previously supplied information to Assistant State Attorney Ann Vitunac of the Palm Beach County State Attorney’s Office, Florida, which according to Ann Vitunac, has resulted in the seizure of large quantities of marijuana.
      The confidential informant, on July 2, 1981, personally told your affiant that Joan Drowne told the confidential informant that she, Joan Drowne, presently had marijuana in her residence at 12855 Sandy Run Lane, Jupiter, Florida, and would have “dope” there at the residence for the 4th of July, 1981 weekend at that residence.
      The confidential informant also told your affiant that he has been at the Drowne residence on prior occasions over the past two (2) years and has personally witnessed Joan and George Drowne smoking marijuana. (George Drowne is a police officer for the Town of Palm Beach, Florida and your affi-ant knows this of his own personal knowledge).
      The confidential informant also told your affiant that he has personally seen numerous weapons in the Drowne residence at 12855 Sandy Run Lane, Jupiter, Florida, within the last three (3) weeks. The confidential informant also said Joan Drowne stated that there were two (2) machine guns on the premises. It is illegal to possess machine guns under Federal Law and Florida Law.

      . Mere possession of a machine gun in Florida is a felony. See section 790.221, Florida Statutes (1981). That fact satisfied the probable cause requirement without the necessity of disproving defenses in the affidavit. See State v. Thompson, 390 So.2d 715 (Fla.1980).

      . For example: “He said there was going to be trouble!”; or “He said the place was on fire”; or “He said there was a problem.”

      . The author’s other divisions are “semantics” and “syntactics.”

      . We do so to provide a clearer explanation of the facts and to acknowledge the withdrawal by the Third District Court of Appeal of its opinion in Riley v. State, 7 Fla.L.W. 2406 (3d DCA Nov. 16, 1982) (published in advance sheet at 421 So.2d 792 but withdrawn), reversed, 8 Fla.L.W. 928, - So.2d - (3d DCA Mar. 29, 1983) (adopting dissenting opinion of Hendry, J., as opinion of court).

       Section 933.09, Florida Statutes (1981), provides:
      The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein.

       There is authority to support the trial court’s conclusion that the officers’ preventing the door from being closed constituted a breaking. Urquhart v. State, 211 So.2d 79 (Fla. 2d DCA 1968). See also Anno. 70 ALR 3d 871 (1976). On the subject of “breaking” generally, see Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) and Cartey v. State, 337 So.2d 835 (Fla. 2d DCA 1976).

      . See United States v. McClard, 333 F.Supp. 158 (D.C.Ark.1971), affirmed, 462 F.2d 488 (1972), cert. denied, 409 U.S. 988, 93 S.Ct. 345, 34 L.Ed.2d 255 (1972).

      . Miami Herald, November 20, 1982, at 31A, col. 6.


author: PER CURIAM. LEHAN, Judge,

text:
    TAMPA-HILLSBOROUGH COUNTY EXPRESSWAY AUTHORITY, Appellant/Cross-Appellee, v. CAMPOAMOR MODERN DAIRY, INC., and Modern Feed Manufacturing Company, Appellees/Cross-Appellants.
    No. 82-1311.
    District Court of Appeal of Florida, Second District.
    May 18, 1983.
    Rehearing Denied Aug. 19, 1983.
    William C. McLean, Jr., P.A., Tampa, for appellant/cross-appellee.
    Paul B. Johnson of Johnson, Paniello & Hayes, Tampa, for appellees/cross-appel-lants.
   PER CURIAM.

Affirmed.

RYDER, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.

ON MOTION FOR REHEARING

Counsel for appellant having filed a motion for rehearing/and request for certification of questions as ones of great public importance in the above-styled cause, upon consideration; it is

ORDERED that said motion is hereby denied.

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

LEHAN, J., dissents with opinion.

LEHAN, Judge,

dissenting.

Tampa-Hillsborough County Expressway Authority (the “Authority”) appeals an award to appellees of business damages in this eminent domain action.

In 1979 the Authority filed a petition in eminent domain and a declaration of taking to condemn certain parcels of appellees’ property as rights-of-way for construction of the Tampa-South Crosstown Expressway. Appellee Campoamor Modern Feed, Inc. filed responsive pleadings and claimed business damages. Campoamor alleged that the taking of part of its land precluded further use of the remainder of the property for its established business (a dairy farm), compelling Campoamor to shut down business.

The Authority filed a motion in the trial court to determine that section 73.071(3)(b), Florida Statutes (1981), is unconstitutional. The trial court denied the motion. After a trial, the jury awarded appellees $301,070 for business damages in addition to damages awarded for the condemned land.

The Authority appeals the business damage award and contends that section 73.-071(3)(b), Florida Statutes (1981), is an unconstitutional violation of the Authority’s right to equal protection under the law. The Authority argues that the statute allows business damages to be awarded to an owner of property partially taken by eminent domain proceedings, whereas an owner whose property is entirely taken cannot be similarly compensated under Florida law. I agree with the Authority’s contention, would grant appellant’s motion for rehearing, and would, therefore, reverse. I would find the Authority’s remaining points to be either without merit (consistent with the majority) or moot (under the result of this dissent).

Appellees argue that the Authority lacks standing to challenge the constitutionality of the statute because the Authority is not a member of the class affected by the alleged unequal protection, i.e., the Authority is not an owner of property entirely taken by eminent domain. “[0]ne who is not himself denied some constitutional right or privilege cannot be heard to raise constitutional questions on behalf of some other person who may at some future time be affected.” Steele v. Freel, 157 Fla. 223, 25 So.2d 501, 503 (Fla.1946). Also, as a general rule ministerial public officials charged with the duty of administering a legislative enactment cannot raise the question of its unconstitutionality. Barr v. Watts, 70 So.2d 347 (Fla.1953).

One exception to that general rule, however, is when the official’s administration of the enactment in question will require the expenditure of public funds. Arnold v. Shumpert, 217 So.2d 116 (Fla.1968); Kaulakis v. Boyd, 138 So.2d 505 (Fla.1962); State ex rel. Florida Portland Cement Co. v. Hale, 129 Fla. 588, 176 So. 577 (Fla.1937). In this case, the enactment in question would require the Authority to use public funds to pay business damages to appellees. Therefore, I would find that the Authority has standing to challenge the constitutionality of section 73.071(3)(b).

Section 73.071(3)(b) provides that compensation for a taking of private property shall include:

(b) Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including, when the action is by ... [a] public body for the condemnation of a right-of-way, and the effect of the taking of the property involved may damage or destroy an established business of more than 5 years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause....

The language of section 73.071(3)(b) has been strictly construed to allow business damages only when the affected business is located on property adjoining the appropriated land and not when the business is located entirely on the land taken by eminent domain. See Guarria v. State Road Department, 117 So.2d 5 (Fla. 3d DCA 1960).

Owners of businesses located on appropriated lands, who were not entitled to relief under section 73.071(3)(b), have at times tried to claim damages under Florida constitutional provisions relating to eminent domain. In State Road Department v. Bramlett, 179 So.2d 137 (Fla. 1st DCA 1965), the trial court instructed the jury that, in determining the compensation to be awarded for a taking of land on which a business was entirely located, the jury was entitled to consider the value of the damage caused by the destruction of the business which was of more than five years’ standing and was owned and operated by a lessee of the property owner. The First District Court of Appeal held that these business damages were not allowable under Section 73.10(4), Florida Statutes (1963), which was identical in substance to the current section 73.071(3)(b). The court held, however, that there was harmless error by the trial court because the business damages were proper under Article XVI, Section 29, Florida Constitution (1885), and Section 12 of the Declaration of Rights, Florida Constitution (1885).

The Florida Supreme Court reversed this decision in State Road Department v. Bramlett, 189 So.2d 481 (Fla.1966). The supreme court agreed that business damages could not be awarded under the business damage statute because the business was located on the taken land rather than on adjoining lands. The court did not agree, however, that the Florida Constitution would support the damage award. The supreme court noted that the district court’s decision had relied, at least in part, on an earlier supreme court decision, Jacksonville Expressway Authority v. Henry G. DuPree Co., 108 So.2d 289 (Fla.1958), which had allowed compensation in an eminent domain case to be paid to a property owner for the reasonable cost of moving.

In Bramlett, the supreme court pointed out that the damages in the DuPree case had been awarded under the “full compensation” clause of Article XVI, Section 29, Florida Constitution (1885), but that subsequent to DuPree the supreme court had held in Daniels v. State Road Department, 170 So.2d 846 (Fla.1964), that the “full compensation” requirement of Article XVI, Section 29, Florida Constitution (1885), applied only to condemnations by private corporations and individuals. In eminent domain proceedings involving the state or its agencies or political subdivisions, the applicable provision was Section 12 of the Declaration of Rights, Florida Constitution (1885), which required “just compensation.”

The Bramlett supreme court opinion decided that “just compensation” did not include damages for a business located on property taken by eminent domain. “We believe that our state’s requirement of ‘just compensation’ is adequately met by an award covering the value of the land, appurtenances, the leasehold and damages to remaining land or property.” Bramlett, 189 So.2d at 484.

The present Florida Constitution no longer contains separate requirements for “just compensation” for condemnation by the state and “full compensation” for condemnation by a private entity. The constitution now provides: “No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner....” Art. X, § 6, Fla. Const. (1968). The supreme court’s decision in Bramlett seems to have been based on its finding that “just compensation” did not require an award of damages for a business located on appropriated property, and the court did not address the question of whether such damages for the taking of private property for public use must be included in an award of “full compensation.”

If business damages are required under the “full compensation” clause of the present Florida Constitution for a taking of land on which a business is entirely located, then section 73.071(3)(b), which provides for business damages for a taking of land adjacent to land on which a business is located, is not a denial of equal protection because owners of businesses on taken property and owners of businesses on land of theirs adjoining their taken property would be treated alike.

However, in Jamesson v. Downtown Development Authority, 322 So.2d 510 (Fla. 1975), the supreme court found that business damages are not allowable under the “full compensation” clause of the 1968 constitution. Jamesson involved a taking of land on which a business was entirely located but did not meet the issue of whether section 73.071(3)(b) is a denial of equal protection. In Jamesson, owners' of leasehold interests in condemned property requested permission at trial to submit evidence of business damages which would result from the condemnation. The trial court denied the motion and held in the final judgment that where an owner is paid for the complete taking of his property, the business damages or loss of profits of lessees are not elements of damage under the Florida Constitution or condemnation statutes; The supreme court agreed, stating

The right to business damages is a matter of legislative grace, not constitutional imperative. Lost profits and business damages are intangibles which generally do not constitute “property” in the constitutional sense. The Florida legislature has chosen not to allow business damages in cases where all of the condemned property has been taken and the owner has been awarded full compensation. We adhere to the principle previously expressed on the same issue under the “just compensation” clause of the predecessor constitution.

322 So.2d at 511.

The supreme court noted that the appellants in Jamesson had suggested that a decision interpreting the “full compensation” clause as not requiring the award of business damage's for a business located on taken property (which was the holding of Jamesson) would mean that section 73.071, which predated the 1968 constitution, contained an unreasonable classification. But the court declined to address the alleged unequal protection brought about by section 73.071 apparently because the appellants lacked standing to raise that issue; if the statute were found to be constitutionally infirm, the court could only invalidate the business damages allowable under the statute which would not have benefited the appellants in that case who were requesting business damages under Article X, Section 6 of the Constitution. 322 So.2d at 511, n. 3.

In the case now before us, invalidation of the business damages statute would benefit the Authority and is exactly the relief that the Authority requests. Therefore, unlike the situation in Jamesson, this case presents squarely the question of whether section 73.071(3)(b) is an unconstitutional denial of equal protection.

In Jamesson, the supreme court held that business damages are not required by the Florida Constitution and are to be awarded only if provided for by statute. As noted above, section 73.071(3)(b) has been interpreted to allow business damages only if the business is located adjacent to, not entirely on, the taken property. No statute has been cited to us, and I know of none, which authorizes an award for damage to a business entirely located on property taken by eminent domain. Thus, the two classes of business owners — those with businesses located entirely on taken property and those with businesses located on property which is adjacent to their taken property— appear to be treated unequally in Florida by virtue of the business damages payable under section 73.071(3)(b).

Unequal classifications do not necessarily violate the equal protection clause. The legislature has wide discretion in creating statutory classifications. North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So.2d 461, 464 (Fla.1979). However, “[t]he classic criterion for assessing the validity of a statutory classification is whether that classification rests upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” State v. Lee, 356 So.2d 276, 279 (Fla.1978). The party attacking the classification has the burden of showing that it is arbitrary and unreasonable. North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So.2d at 465.

In this case, I agree with the Authority that no fair and proper purpose, within the foregoing supreme court criteria, exists in compensating one class of property owners (those whose property is partially taken) for business damages under section 73.071(3)(b) while denying that same type of compensation to other property owners (those whose property is entirely taken). There is no reasonable basis for concluding that owners of property which is taken and on which a business is entirely located suffer from the damage or destruction of their businesses any less than owners of property on which a business is located and which is adjacent to property which is taken. Such an unequal classification is arbitrary and unreasonable. Therefore, I would hold that section 73.-071(3)(b) is unconstitutional as a denial of equal protection. There is no issue before us as to whether under the constitution owners of property which is taken and on which a business is entirely located should be compensated for business damages; that has been established in the negative by the Florida Supreme Court in Jamesson.

Accordingly, I would reverse and remand for a new trial at which appellees’ claimed damages would be considered under the same standards as those applied to owners of taken property on which a business was entirely located. These damages, which do not include business damages, see James-son, may encompass the value of the land taken, appurtenances thereto and relocation expenses. See Bramlett, 189 So.2d at 484, and DuPree.

I find no merit in appellees’ points raised on cross appeal.

Because the Florida Supreme Court has not had the opportunity to rule on the precise issue which this opinion has addressed, I would certify to the supreme court the following question as of great public importance.

Is section 73.071(3)(b), Florida Statutes (1981), an unconstitutional denial of equal protection because it authorizes an award for damage to or destruction of a business located on property adjacent to property taken by eminent domain while the owner of a business entirely located on property taken by eminent domain is allowed no business damages under Florida law?


author: PER CURIAM.

text:
    Robert A. MALLARD, Property Appraiser of Duval County, Florida; Lynwood Roberts, as the Tax Collector of Duval County, Florida; and Randy Miller, as Executive Director of the Department of Revenue, State of Florida, Appellants, v. Robert John WINICKI, Appellee.
    No. AP-133.
    District Court of Appeal of Florida, First District.
    May 20, 1983.
    Barbara Staros Harmon, Asst. Atty. Gen., Tallahassee, for appellant Randy Miller and intervenor Jim Smith, Atty. Gen.
    Linda Logan Bryan, Asst. Gen. Counsel, Jacksonville, for appellants Robert A. Mallard and Lynwood Roberts.
    Robert John Winicki, pro se.
    Mark C. Taylor, Jacksonville, for appel-lee.
   PER CURIAM.

Affirmed on the authority of and for the reasons enunciated in Osterndorf v. Turner, 426 So.2d 539 (Fla.1983).

ERVIN, THOMPSON and WIGGINTON, JJ., concur.


author: OTT, Chief Judge.

text:
    STATE of Florida, Appellant, v. Scott Dale WHITE, Appellee.
    No. 82-1807.
    District Court of Appeal of Florida, Second District.
    May 25, 1983.
    Rehearing Denied Aug. 19, 1983.
    Jerry Hill, Public Defender, Bartow, and Rick Dalan, Asst. Public Defender, Clear-water, for appellee.
   OTT, Chief Judge.

The State of Florida appeals an order discharging appellee. We reverse.

Appellee was originally convicted of burglary, sexual battery, and robbery. An appeal to this court resulted in reversal of the convictions, and the- cause was remanded for new trial. White v. State, 407 So.2d 247 (Fla. 2d DCA 1981). After issuance of our mandate on January 13, 1982, the state filed a notice of discretionary review in the supreme court and moved this court for a stay of the mandate and an extension of speedy trial, requesting in pertinent part:

WHEREFORE, the State seeks withdrawal and stay of mandate and a stay and extension of speedy trial of 90 days from the Florida Supreme Court’s disposition hereof.

(Emphasis added.) In response thereto this court, on February 18,1982, issued an order stating that “said motion is hereby granted until disposition of the petition for discretionary review by the Florida Supreme Court.”

The supreme court denied the state’s petition for discretionary review, and said denial was received by the circuit court on May 10, 1982.

Appellee’s motion for discharge alleging that speedy trial had expired was filed on July 20,1982. The motion was granted, the trial court reasoning that thirty-six days had elapsed from the issuance of our mandate (January 13, 1982) to the date of our order staying speedy trial (February 18, 1982). Therefore, following the supreme court’s denial of review only fifty-four days remained before speedy trial expired, making July 3, 1982, the last day for retrial of appellee.

We admit that our order extending speedy trial is not a model of clarity. However, when viewed in conjunction with the state’s motion and the relief requested therein, our intent that the ninety-day speedy trial period begin to run anew after disposition by the supreme court of the state’s petition for .review becomes clear. Hence, the motion for discharge was filed before the speedy trial period expired on August 8, 1982.

Our sister court was faced with a similar fact situation in State v. Johnson, 320 So.2d 453 (Fla. 3d DCA 1975). Based on Florida Rule of Criminal Procedure 3.191(g), the third district reached the same conclusion as we reach today, and we adopt that court’s analysis.

Appellee argues that this court lacked jurisdiction to extend speedy trial, citing Nelson v. State, 414 So.2d 505 (Fla.1982), for the proposition that only a trial judge can enter an order extending speedy trial. Nelson was decided on April 1,1982, almost two months after our February 18, 1982, order extending speedy trial. At the time this court’s order was entered, there was no clear cut statement of whether, in cases where the state seeks review in the supreme court of a district court opinion, the state should request an extension of speedy trial in the trial court or seek a stay of mandate in the district court which would achieve the same result. Compare Nelson v. State, 399 So.2d 79 (Fla. 4th DCA 1981), with Ferrell v. State, 385 So.2d 120 (Fla. 3d DCA 1980); see also Nelson, 414 So.2d at 506.

Because of our disposition here, we also reverse the denial of the state’s motion to extend speedy trial pending this appeal. See State of Jenkins, 389 So.2d 971 (Fla. 1980). The state shall have ninety days from the date of our mandate in this case within which to bring appellee to trial.

SCHEB and LEHAN, JJ„ concur.


author: SCHEB, Acting Chief Judge. SCHEB, Acting Chief Judge,

text:
    CROWN LIQUORS OF BROWARD, INC., and Belle Fonte Insurance Company, Appellants, v. Daniel EVENRUD, Appellee.
    Nos. 82-2270, 82-2271.
    District Court of Appeal of Florida, Second District.
    June 1, 1983.
    Rehearing Denied Sept. 7, 1983.

      Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for Crown Liquors.
    Michael L. Kinney and T. Gregory Sloth-er of Marlow, Shofi, Ortmayer, Smith, Con-nell & Valerius, Tampa, for Belle Fonte Ins. Co.
    Paul Castagliola of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellee.
   SCHEB, Acting Chief Judge.

Appellants, Crown Liquors and its insurer, challenge a jury verdict awarding damages to appellee Daniel Evenrud for Crown’s negligence in failing to prevent injury to Evenrud, one of its customers. We hold the evidence was insufficient to show a breach of duty by Crown, and that the trial court erred in denying appellants’ motions for directed verdict.

Evenrud sued Crown and its insurer and Julio Santas seeking compensatory and punitive damages for injuries he received when he was allegedly struck by Santas at the Crown Lounge in St. Petersburg. In his multi-count complaint, Evenrud alleged that Crown was negligent in failing to exercise reasonable care to maintain its premises in a safe condition and in failing to supervise its patrons for the purpose of preventing injury from known risks. Appellants (Crown and its insurer) answered by denying negligence and pled comparative negligence on Evenrud’s part. The court denied appellant’s motions for directed verdicts on the above counts, and the jury awarded Evenrud compensatory damages of $150,000 against Crown and its insurer and punitive damages of $200,000 against Crown. After the court denied appellants’ post-trial motions, this appeal ensued.

The relevant facts are simple and uncon-troverted. On the evening of August 18, 1979, Evenrud stopped in at the Crown Lounge, where he had been a frequent patron the last year or so. The lounge, owned and operated by Crown Liquors, sold alcoholic beverages for consumption on the premises and provided music for dancing and entertainment of its customers. Julio Santas and his girlfriend, Patti Yonce, were already at the lounge that night. After having a couple of drinks and being in the lounge for a while, Evenrud’s next recollection was of waking up sometime later in the hospital and not knowing what had happened to him. The testimony of other witnesses revealed that while Evenrud was dancing with Yonce, Santas approached him and delivered the one and only blow of the encounter. Evenrud went down quickly from the punch, hit his head on the floor, and lay there bleeding from the left ear.

During the trial several witnesses testified as to the events of August 18. Additionally, four officers of the St. Petersburg Police Department testified, over appellants’ objections, that the Crown Lounge had a reputation as a problem spot in the community. Officer Spangella, who patrolled the area for a year and a half prior to August 18,1979, testified, “we had problems almost every evening in the bar.” Sergeant Potts stated, “I had more complaints of fights and injuries at that bar than any other.”

Over relevancy objections of appellants, Evenrud was also allowed to introduce evidence of two specific disturbances at the lounge, both involving Patti Yonce. In May 1979 Yonce began a squabble with three males and was kicking and swinging at them. However, everyone calmed down and quickly went back to drinking together, and no one was ejected from the premises as a result. The second incident was on July 3, 1979, when Yonce, apparently angered by observing Santas dancing with another girl, got into an altercation with the girl. The girl retaliated by hitting Yonce with a beer bottle, and Yonce had to be taken to the hospital.

Evenrud introduced into evidence the written rules utilized internally by Crown for the guidance of its bartenders, barmaids, and bouncers. Two executive supervisors for Crown testified that intoxicated and violent people were to be barred for the protection of other patrons. Both witnesses stated that circumstances 'as serious as the July 3 and August 18 incidents would warrant a written report, cause the participants to be temporarily barred, and be the subject of a meeting among Crown employees. Although one supervisor admitted having been orally informed of both incidents, neither supervisor had any knowledge of any meeting, written report, or barring relative to those two incidents. There was never any written list of those persons previously barred or involved in violence, and the only means of implementing the barring process was by word of mouth or a face to name recognition of the barred individual by any employee.

Appellants contend that the trial court erred in failing to grant their motions for directed verdict. We agree.

A tavern owner or operator has a duty to maintain his premises in a reasonably safe condition. This includes the duty of preventing injuries, the risk of which is known, to the owner. Spillers v. Hall, 428 So.2d 268 (Fla. 2d DCA 1982); Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980). However, such owner or operator is not an insurer of the safety of its patrons; and is not liable in damages to one jwho is injured unless it has notice of the danger involved and an opportunity to protect against it. Highlands Insurance Co. w. Gilday, 398 So.2d 834 (Fla. 4th DCA), cert. denied, 411 So.2d 382 (Fla.1981). In order for Crown to be held liable, it must have been foreseeable by Crown that Santas was going to attack Evenrud.

Here, there was , no evidence presented that Santas had ¡ever been involved in a fight at Crown Lounge. Furthermore, there was no wanking that San-tas had violent propensities jor of any impending violence by Santasj, which could have put Crown on notice in time to prevent the fight. To the contrary, there was testimony that Santas was a] “nice person” and had never caused any problems. As noted in Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978), foreseeability is an essential element which must be established to predicate liability based on negligence, and what is “foreseeable” is not “what might possibly occur.” Here, Evenrud’s injuries resulted from a single punch. The entire incident was over almost before it started, and the evidence simply does not show that Santas’ behavior was foreseeable by Crown. Moreover, even though a bouncer was present at the lounge that night, there was no time for him to prevent the fight.

Appellee Evenrud argues that Santas’ behavior was foreseeable when viewed in light of his relationship with Yonce. According to appellee, Yonce’s fight on July 3, 1979, should have put Crown on notice that the Santas/Yonce relationship might give rise to subsequent violent acts and injuries when they were together in the bar. We reject this argument. The mere fact that Yonce may have exhibited prior aggressive tendencies, and that Santas was her boyfriend is not enough to support a finding that Crown knew, or should have known, that Santas would suddenly attack Evenrud just because he was dancing in public with Yonce. Moreover, assuming arguendo the admissibility of all the evidence as to Crown’s reputation as a trouble spot, such evidence does not support proof of any specific knowledge of Crown’s part that Even-rud was in danger of being injured.

Crown does have a general duty to use reasonable care to protect its patrons. However, this duty does not require Crown “to guard against the risk created by a specific patron, unless [it] has actual or constructive knowledge of the need for specific supervision and a reasonable opportunity to exercise it.” (Emphasis supplied.) Warner v. Florida Jai Alai, Inc., 221 So.2d 777, 778 (Fla. 4th DCA 1969), cert. discharged, 235 So.2d 294 (Fla.1970). In the absence of a showing of such actual or constructive knowledge, we hold that Crown did not breach its duty to Evenrud. Therefore, the trial court erred in denying appellants’ motions for directed verdict.

In view of our holding, we need not reach the other issues raised by appellants.

Accordingly, we vacate the final judgment against appellants and remand for entry of a corrected final judgment discharging appellants from liability.

RYDER and DANAHY, JJ., concur.

ON MOTION FOR REHEARING

SCHEB, Acting Chief Judge,

Appellee, Daniel Evenrud, seeks a rehearing on the ground that our decision is not in conformity with the Florida Supreme Court’s recent decision in Stevens v. Jefferson, 436 So.2d 33 (Fla.1983). While Stevens was not filed until the day after our opinion had been filed, that case does not persuade us to change our holding that the evidence was insufficient to show a breach of duty by appellant, Crown Liquors. Yet, we feel that in view of the supreme court’s opinion in Stevens, some additional comment is warranted.

In Stevens a tavern owner was held liable for the gunshot slaying of Earl Sidney Jefferson, one of the bar’s patrons, by another patron. Jefferson’s widow was able to prove a history of shootings and fights in the bar, that the owner had failed to maintain order, and that no security personnel had been employed notwithstanding the fact that the owner knew or should have known that his patrons were being exposed to risk of harm from fights or shootings by other patrons. However, the tavern owner appealed contending the court erred in entering final judgment in favor of Jefferson’s widow, because she failed to allege that the tavern owner knew of any dangerous propensities of her husband’s assailant.

In affirming the judgment for Mrs. Jefferson, the supreme court rejected the contention that proof of foreseeability of harm to a bar’s patrons should be limited to evidence of actual or constructive knowledge of a particular assailant’s propensity for violence. Rather, the court held that a tavern owner’s liability could also be predicated on knowledge of the likelihood of disorderly conduct by third persons in general which might endanger the safety of his patrons.

The court also emphasized a plaintiff’s responsibility to prove legal causation and noted that Mrs. Jefferson had established that element by showing that the bar had a history of fights and gunplay and that the owner had terminated all security service and left the premises in the charge of a female employee who could not maintain order. Under those facts a jury could properly conclude that the owner could have remedied the danger but failed to do so and that because of that failure to perform his duties Jefferson was killed.

Admittedly, our opinion focused on the issue of whether Crown Liquors could have foreseen that Julio Santas would attack Evenrud. We did not find it necessary to discuss whether Crown could be liable for failure to take precautions against third persons in general because, irrespective of the evidence of Crown’s reputation, there was no showing of any breach of the duty Crown owed its patrons. Even if it could be argued that Evenrud evidentially established the element of foreseeability, still it is clear that there was no evidence to support a finding that Crown failed in its duty to provide security or had an opportunity to prevent the completely unexpected blow which Santas delivered to Evenrud.

We conclude that Crown could not have foreseen that Santas would attack Evenrud. And even if it could have known, either actually or constructively, that there was a likelihood of disorderly conduct by third persons in general which could result in harm to Evenrud, any opportunity to protect against the risk of harm was totally lacking. As noted, Santas’ attack on Even-rud involved a single punch, and the entire incident was over almost before it started. Thus, the legal cause of Evenrud’s injuries could not be attributed to Crown.

We find the facts in Stevens to be distinguishable from the facts here. Inasmuch as our holding does not conflict with Stevens, the motion for rehearing is denied.

RYDER and DANAHY, JJ., concur.

      . Our discussion is limited to Counts II and III. Count I was directed solely against Santas. Judgment was rendered against him, and he is not a party to this appeal. The court dismissed Count IV, which charged Crown with failure to protect Evenrud from assaults by specific patrons with known dangerous propensities. Count V sought punitive damages from Crown.

      . Thus, our discussion of foreseeability as a basis of establishing the liability of a tavern owner focused on narrower principles than those articulated in Stevens.


author: PER CURIAM

text:
    DUNG BA NGUYEN, Appellant, v. HOLYOKE MUTUAL INSURANCE COMPANY, Appellee.
    No. 82-2182.
    District Court of Appeal of Florida, Third District.
    June 28, 1983.
    Rehearing Denied Sept. 21, 1983.

      Rossman & Baumberger, Podhurst, Or-seck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellant. .
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Miami, for appellee.
    Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM

We recede from footnote 10 in Volkswagen Insurance Co. v. Nguyen, 405 So.2d 190 (Fla. 3d DCA 1981), and remand to the trial court in light of Hodges v. National Union Indemnity Co., 249 So.2d 679 (Fla. 1971); § 320.01(1)(a), (13), Fla.Stat. (1981).


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

text:
    FLORIDA PATIENT’S COMPENSATION FUND, Appellant, v. Saul MILLER, M.D., and Mt. Sinai Hospital of Greater Miami, Inc., Appellees.
    No. 81-87.
    District Court of Appeal of Florida, Third District.
    June 28, 1983.
    Rehearing Denied Sept. 19, 1983.
    Holland & Knight and Julian Clarkson, Tampa, for appellant.
    Blackwell, Walker, Gray, Powers, Flick, Hoehl, and James C. Blecke, Adams & Ward, Richard Adams, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   JORGENSON, Judge.

The trial court, at the hearing on the indemnification claim of Mt. Sinai Hospital, entered an order which, in pertinent part, reads:

THIS CAUSE came on to be heard before the undersigned Judge after due notice for final hearing on the claim of MT. SINAI HOSPITAL OF GREATER MIAMI, INC. that it had a right of common law indemnity against the defendants, SAUL MILLER, M.D. and the FLORIDA PATIENTS COMPENSATION FUND as his carrier. All of the parties to the proceeding stipulated that there was no issue of fact to be determined regarding the liability on the common law indemnity claim. The only issue of fact was the question of the amount of reasonable fee to be awarded to Adams and Ward as attorneys for MT. SINAI HOSPITAL OF GREATER MIAMI, INC. as a part of MT. SINAI’s common law indemnity claim against SAUL MILLER, M.D. and the FLORIDA PATIENTS COMPENSATION FUND.
All parties concede that MT. SINAI HOSPITAL OF GREATER MIAMI, INC. had a right of common law indemnity against SAUL MILLER, M.D. by reason of the verdict and judgment that had been entered in this cause in favor of the plaintiffs. It was admitted that SAUL MILLER, M.D. was a member of the FLORIDA PATIENTS COMPENSATION FUND. FLORIDA PATIENTS COMPENSATION FUND admitted that it was responsible to pay on behalf of SAUL MILLER, M.D. the $100,000 that MT. SINAI had paid in accordance with the final judgment entered in favor of the plaintiffs in this cause because of the fact that SAUL MILLER, M.D.’s liability under Chapter 768.54(2)(b) was limited to $100,000 and he had paid that amount to the plaintiffs. The only issue left for determination was whether or not the FLORIDA PATIENTS COMPENSATION FUND was also obligated on behalf of SAUL MILLER, M.D. to pay the balance of MT. SINAI’s indemnity damage claim which consisted of costs and expenses incurred by MT. SINAI in defense of this suit, the portion of the cost judgment that was awarded against MT. SINAI on behalf of the plaintiff, REYES, and the reasonable attorney’s fees which have been agreed to be paid by MT. SINAI to its attorneys, Adams and Ward. All of the parties agree that this was a legal issue and should be determined by the court.
It has been many times decided that attorney’s fees and costs are a part of the damages sustained by an indemnitee for which an indemnitor is responsible. It is the opinion of the court that under the provisions of Chapter 768.54, Fla.Stat., the FLORIDA PATIENTS COMPENSATION FUND is obligated to pay on behalf of SAUL MILLER, M.D. all damage awards rendered against SAUL MILLER, M.D. in excess of $100,000 that arise out of the rendering of medical care or services by SAUL MILLER, M.D. In this case, the claim of MT. SINAI HOSPITAL OF GREATER MIAMI, INC. against SAUL MILLER, M.D. for common law indemnity has arisen out of the rendition of medical care and service by SAUL MILLER, M.D.

Thereafter, the trial court found that Mt. Sinai Hospital had- established a-right of common law indemnity against Saul Miller, M.D. and that, due to the fact that Dr. Miller had met his statutory obligation under the provisions of Section 768.54, Florida Statutes (1979), the Florida Patient’s Compensation Fund was liable. We agree and affirm.

The trial court’s conclusion that an indemnitee is entitled to recover reasonable attorney’s fees as a part of its damages is buttressed by a substantial body of Florida law. American Home Assurance Company v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979); Brown v. Financial Indemnity Company, 366 So.2d 1273 (Fla. 4th DCA 1979); Insurance Company of North America v. King, 340 So.2d 1175 (Fla. 4th DCA 1976); Canadian Universal Insurance Company v. Employers Surplus Lines Insurance Company, 325 So.2d 29 (Fla. 3d DCA 1976); Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla. 2d DCA 1969); Morse Auto Rental, Inc. v. Dunes Enterprises, Inc., 198 So.2d 652 (Fla. 3d DCA 1967); Fontainebleau Hotel Corporation v. Postol; 142 So.2d 299 (Fla. 3d DCA 1962).

We approve the rationale of the trial court. Had the legislature wished to preclude the application of indemnity principles to cases of this nature, it could have done so when it enacted the statute. It did not, and we, accordingly, affirm.

Affirmed.

FERGUSON, Judge

(specially concurring).

I specially concur only to address the dissent’s analysis which is accurate as far as it goes, but which I think, overlooks practical aspects of the problem. The dissent concludes that the Fund should not be liable for the defense of Mt. Sinai. The problem of who should bear that responsibility then arises.

In order for Mt. Sinai to be ultimately responsible for its defense it would have to forfeit its right to common law indemnity— something not bargained for in the agreement with the Fund. If Miller is held liable, then he would be required to pay for two defenses — his own and that of Mt. Sinai.

In order to limit his liability to $100,000 on any claim, Miller, as a health care provider, was only required to (1) pay the statutory fee for Fund membership, (2) pay the first $100,000 of the claim, and (3) provide an adequate defense for the Fund as to any lawsuit filed against him. § 768.-54(2)(b), Fla.Stat. (1979). In order to now hold Miller liable for the cost of Mt. Sinai’s defense, as well as his own, the dissent necessarily has to, again, read into the statute a nonexistent term, i.e., that a health care provider must provide an adequate defense for any other health care provider who is named a party defendant on the same claim if the liability of that other health care provider is determined to be only vicarious. That, to me, asks too much.

We are presented with a question which the controlling statute simply does not answer. The dissent focuses on the stated purpose of the statute for its conclusion that the Fund should not be liable. The trial court and the majority here have focused on the statutory requirements which a member health care provider has to satisfy in order to enjoy the benefits of limited liability. Either view may be correct. The legislature has obviously left a gap in the law which it will eventually have to fill.

DANIEL S. PEARSON, Judge,

dissenting.

This case involves, or at least should involve, the construction of provisions of the Medical Malpractice Reform Act relating to the Patient’s Compensation Fund. The majority’s reliance on the proposition that an indemnitee is entitled to recover its reasonable attorneys’ fees as a part of its damages is hardly a rationale for making the Fund, as opposed to Dr. Miller, liable for the payment of such fees.

The primary purpose for the establishment of the Fund as part of the Medical Malpractice Reform Act was to create a fund designed to compensate medical malpractice plaintiffs, not to set up an insurance fund with obligations to a health care provider. Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979). A health care provider can, however, limit his liability under Section 768.54(2)(b), Florida Statutes (1979), under the following circumstances:

“A health care provider shall not be liable for an amount in excess of $100,000 per claim ... if the health care provider has paid the fees required pursuant to subsection (3) for the year in which the incident occurred for which the claim is filed, and an adequate defense for the fund is provided, and pays at least the initial $100,-000 or the maximum limit of the underlying coverage maintained by the health care provider.” (emphasis supplied).

As the statute makes clear, the Fund’s role is to cover large claims after the covered health care provider has defended the case at trial and has satisfied the first $100,000 of any adjudicated liability. It is the health care provider who is responsible to provide an adequate defense for the Fund, not the other way around. But the result reached by the trial court and the majority requires the Fund to pay the costs of Mt. Sinai’s defense in direct contravention of the statute as I read it.

The fallacy in adjudicating the Fund liable for Mt. Sinai’s costs of defense is more readily seen when one analyzes the rights and responsibilities of each of the parties vis-a-vis the other. As between the Fund and Mt. Sinai, Mt. Sinai is required by the statute to provide a defense against any claim of medical malpractice. As between the Fund and Miller, Miller is required by the statute to provide a defense against any claim of medical malpractice. As between Mt. Sinai and Miller, Miller is required under principles of common law indemnity to provide a defense against any claim of medical malpractice arising from Miller’s negligent treatment while acting as Mt. Sinai’s agent. Nowhere in this calculus does the Fund become liable for the costs of defense.

I respectfully dissent and would reverse the judgment below insofar as it awarded Mt. Sinai costs and attorneys’ fees against the Fund.


author: GOLDMAN, M., Associate Judge.

text:
    R. Kay KRAMER and Victoria Joan Kramer, Appellants, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, an insurance cooperative association, Appellee.
    No. 82-1485.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1983.
    Rehearing and/or Clarification Denied Sept. 20, 1983.
    Joel Daves of Burdick & Daves, West Palm Beach, for appellants.
    David F. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for appel-lee.
   GOLDMAN, M., Associate Judge.

This is an appeal from a final judgment dismissing Appellant’s complaint. We reverse as to the Appellant, Victoria Joan Kramer, only.

The complaint alleged that Appellee had for many years furnished automobile insurance to R. Kay Kramer. It further set forth facts alleging that Appellee did not have a local agent, and Appellant was required to order insurance by long distance phone directly with Appellee. The complaint went on to allege that Victoria Joan Kramer was listed on her father’s policy as an insured driver. On 8/17/81 Victoria purchased a new car, and on the advice of her father, phoned Appellee concerning insurance coverage for her new car. Victoria ' it is alleged, was told by Appellee that her father’s existing policy covered her new car for a period of thirty days or until the vehicle could be added to this policy, or until another policy was issued.

Victoria, relying on these statements, took no further action to obtain any other insurance for her new car. To her dismay, Appellee denied coverage when the auto was damaged in an accident which occurred on 8/31/81.

Appellee’s motions to dismiss and strike were granted and this appeal was then timely filed. Appellee urges us to affirm by applying the general principle that the doctrine of waiver and estoppel are not available to extend the coverage of an insurance policy or to create a primary liability. Radoff v. North American Company for Life and Health Insurance, 358 So.2d 1138 (Fla. 3rd DCA 1978); Six L’s Packing Company v. Florida Farm Bureau Mutual Insurance Company, 268 So.2d 560 (Fla. 4th DCA 1972); Johnson v. Dawson, 257 So.2d 282 (Fla. 3rd DCA 1972).

We are not unmindful of this general proposition of law and the multitude of cases which assert and support it. However, the peculiar factual situation presented here cannot be resolved by a simple application of a broad, general statement of law. Nor has this legal doctrine been applied without exception.

In the case of General Motors Acceptance Corporation v. American Liberty Insurance Company, 238 So.2d 450 (Fla. 1st DCA 1970), G.M.A.C. was a lienholder with a loss payable clause in its favor in a policy written by Commercial Union Insurance Company. The day before this policy was to expire, G.M.A.C. made inquiry of Appellee’s Agent and was advised that a new policy would be issued by Appellee containing a loss payable clause in favor of G.M.A.C. In reliance thereon, G.M.A.C. took no further action, and when the inevitable time came for G.M.A.C. to make a claim as lienholder, Appellee denied coverage, claiming it had only issued a 30 day binder which had lapsed without the issuance of a collision policy.

The Court reversed a judgment for Appellee, holding that it was estopped from denying coverage in view of G.M.A.C.’s reliance upon the verbal confirmation of coverage by Appellee’s agent.

Another case in point is Burns v. Consolidated American Insurance Company, 359 So.2d 1203 (Fla. 3rd DCA 1978) wherein the Court recognized the broad general principle of law involved herein, but refused to apply it on the peculiar facts of that case. Instead the Court stated: “While estoppel cannot be invoked to create coverage clearly excluded by a written contract of insurance, the concept may be utilized against an insurer when its conduct has been such as to induce action in rebaneé on it. Mutual of Omaha Insurance Company v. Eakins, 337 So.2d 418 (Fla. 2d DCA 1976).” The Court then noted that the issue in the case is not one of estoppel creating coverage, but one of estoppel to deny the existence of an oral contract creating coverage.

Another recent case has considered the issue before us, and has distinguished the application of the general rule in a similar factual situation. In Peninsular Life Insurance Company v. Wade, 425 So.2d 1181 (Fla. 2d DCA 1983) the Court clearly recognized the general rule relative to waiver and es-toppel, however cited numerous authorities “in which the insurer was held estopped to deny coverage where the insured was assured of coverage and sustained a loss before learning that the policy actually issued did not provide coverage for the loss in question.”

The insured in the Peninsular Life case (and the Appellant herein) was affirmatively misled by the agent of the insurance company as to the extent and existence of insurance coverage.

We agree with the reasoning set forth in Peninsular, to wit:

“where an insurer or its agent misrepresents, even though innocently, the coverage of the insurance contract, or the exclusions therefrom, to an insured before or at the inception of the contract, and the insured reasonably relies thereupon to his ultimate detriment, the insurer is es-topped to deny coverage after a loss or a risk from a peril actually not covered by the terms of the policy. The proposition is one of elementary and simple justice ... If the insured is saddled with coverage it may not have intended or desired, it is of its own making, because of its responsibility for the acts and representations of its employees and agents. It alone has the capacity to guard against such a result by the proper selection, training and supervision of its representatives.”

The facts pled in Appellant’s complaint present an unusual situation. Victoria Joan Kramer did not have the luxury of dealing with an insurance agent. As was clearly and properly alleged, the only office Appel-lee maintains in Florida is in Tampa, and the only manner of obtaining insurance coverage from Appellee was by telephone.

Had Victoria dealt with an insurance agent who was negligent in failing to procure the proper coverage requested by her,. she would have a cause of action against the agent. Cat N’ Fiddle Inc. v. Century Insurance Company, 200 So.2d 208 (Fla. 3rd DCA 1967); Caplan v. La Chance, 219 So.2d 89 (Fla. 3rd DCA 1969); de Marlor v. Foley Carter Insurance Co., 386 So.2d 22 (2d DCA 1980); Sheridan v. Greenberg, 391 So.2d 234 (Fla. 3rd DCA 1981). See also Scott v. Sun Bank of Volusia County, 408 So.2d 591 (Fla. 5th DCA 1982).

In the case before us, Victoria dealt tele-phonically directly with the Appellee, at the latter’s direction. She should not be prejudiced because of Appellee’s method of doing business.

The complaint, while not a model pleading, does state a cause of action as to Victoria Joan Kramer, and therefore the judgment appealed from is affirmed as to R. Kay Kramer and reversed as to Victoria Joan Kramer with directions to reinstate said complaint as to the latter Appellant.

LETTS, C.J., and DOWNEY, J., concur.

      . Appellants concede that there is no cause of action stated on behalf of R. Kay Kramer.

      . In the case of Liberty Mutual Fire Insurance Company v. Sanderman, 286 So.2d 254 (Fla. 3rd DCA 1973) the Court, while not mentioning either waiver or estoppel, clearly found the existence of coverage based on these doctrines. To the same effect see also Emmco Insurance Company v. Marshall Flying Service, Inc., 325 So.2d 453 (Fla. 2d DCA 1976).
      See also Cigarette Racing Team Inc. v. Parliament Insurance Co., 395 So.2d 1238 (Fla. 4th DCA 1981) where the Court, while recognizing the general rule, noted an exception where the carrier assumes the defense of an action with knowledge of facts which would have permitted it to deny coverage.

      . We need not decide whether Appellee’s actions created an oral modification of an existing contract since this was neither pled nor argued.