author: RYDER, Judge.

text:
    Michael K. HYNES, Appellant, v. CITY OF LAKELAND, Florida, a Florida municipal corporation, William Bruce Bull, Harold R. MaGee, and Lakeland Flying Service, Inc., Appellees.
    No. 82-2840.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Rehearing Denied June 6, 1984.

      Philip 0. Allen of DeVane, Munson & Allen, Lakeland, for appellant.
    Mark N. Miller, City Atty., and Ernest M. Jones, Jr. of Jacobs, Valentine, Grosec-lose, McCarthy & Vining, P.A., Lakeland, for appellees.
   RYDER, Judge.

Appellant Michael Hynes, plaintiff below, seeks review of the order granting final summary judgment in favor of appellees William Bull, Harold MaGee, and the City of Lakeland (hereinafter City). We reverse.

On October 21, 1975, appellant became the possessor of the leasehold interest in the property situated directly beneath hangar # 3 located at Lakeland Municipal Airport and also became the owner of the hangar building itself. Appellant acquired these interests pursuant to an October 21, 1975 purchase and sale agreement (hereinafter Agreement) and companion lease (hereinafter Lease) entered into between himself and Lakeland Flying Services, Inc. (hereinafter LFS), a Florida corporation. Hynes’ leasehold estate was carved out of LFS’s larger estate which is situated to the south and east of hangar #3 and also located between hangar # 3 and the airport taxiway that connects with the other taxiways and runways. Part of LFS’s leasehold estate in existence when the Agreement and Lease were executed included property designated in an earlier 1962 lease for use as an aircraft access ramp between its hangar (# 2) and the taxiways. This apparently unpaved access ramp is adjacent to a large portion of the eastern border of hangar # 3 according to the diagram attached to the 1965 lease and incorporated by reference into the October 1975 Lease. The City is the owner and operator of the airport and is the original lessor of all property involved in this case.

In the October 1975 Agreement, LFS promised to sell to Hynes the structure known as hangar # 3 and also promised to assign to him the leasehold interest in a 1965 lease (which covered the property underlying hangar # 3), including all adden-dums and the August 29, 1975 extension relating to that lease. In particular, the Agreement provides in part: “From and after the date of closing, the seller shall have joint use of the ramps, runways, taxiways, and other facilities provided for aircraft and the public at the Lakeland Municipal Airport.” Another provision states that it “shall be binding upon and inure to the benefit of the parties hereto, their heirs, successors, assigns, and personal representatives.” The companion Lease executed thereafter assigned to Hynes the interest in the 1965 lease along with the addendums and the extension and also incorporated by reference the terms and conditions of these documents.

In October 1980, appellant filed a multi-count complaint against the City and LFS, seeking damages and declaratory and in-junctive relief. The underlying basis for the suit concerns appellant’s claim that, under the October 1975 Agreement and companion Lease, he and his sub-lessees have either express or implied easements over property leased by LFS to move aircraft between hangar # 3 and the public taxiways and to move motor vehicles between hangar # 3 and the public road leading to the airport. After some discovery had occurred, appellant in April of 1982, filed a separate complaint against Bull and MaGee for damages, alleging each individual had intentionally interfered with his advantageous business relationships and each had conspired with the City and the corporation to intentionally interfere with the same business relationships. Bull and Ma-Gee purchased LFS’ corporate stock, assets, interests, and obligations in April 1977.

Subsequently, the case was removed to federal court by LFS and the City; however, the federal court remanded the matter back to state court after dismissing the one count of the complaint which alleged a federal cause of action. A second amended complaint was filed in state court against LFS and the City. This amended complaint contained the same counts and claims as the initial complaint plus an additional count.

In Count I, appellant essentially alleged that LFS breached the October 1975 Agreement and companion Lease with him by refusing, beginning in the summer of 1977, to allow him or his sub-lessee at the time “the right of ingress or egress” for both aircraft and motor vehicles across express easements provided for by these agreements which adopted the terms and conditions of the original 1965 lease. In Count II, appellant alternatively sought, in accordance with section 704.01(1), Florida Statutes (1979), to establish implied easements by “way of necessity” over property leased to LFS in order that he be able to beneficially use the leasehold estate (hangar #3) conveyed to him by LFS. With respect to Count III, appellant sought declaratory and injunctive relief to define and protect his express easements or the alternative “ways of necessity.” He also requested that the trial court enjoin both LFS and the City from interferring with his right of access between hangar # 3 and the airport taxiways and runways and between hangar #3 and the public road adjoining the airport.

In Count V, appellant sought damages against the City and claimed it breached the terms of the 1965 original lease and extension, the rights of which had been assigned to him by the October 1975 Agreement and Lease. In particular, appellant alleged the City breached the agreements by leasing to LFS in July of 1980 property over which he had either express or implied easements. Finally, as for Counts VI and VII, appellant sought damages against LFS and the City for intentional interference with his advantageous business relationships and for conspiracy to intentionally interfere with those same relationships.

Sometime between the filing of the second amended complaint and June 23, 1982, LFS apparently filed a voluntary petition for bankruptcy and was no longer subjected to the state proceedings. On July 28, 1982, an amended complaint for damages was filed against Bull and MaGee. This complaint alleged that Bull and MaGee intentionally interfered with his advantageous business relationships by physically obstructing access to his leasehold; threatening to physically obstruct his access; and informing third persons that neither he nor his assignees have rights of access to hangar # 3 when in fact they were aware that the rights inuring from the 1965 lease and extension had been assigned to him.

After discovery was completed, the trial court, on September 27, 1982, set a trial date of November 27, 1982. However, on November 16, appellees Bull and MaGee moved for summary judgment based upon the pleadings, depositions, exhibits filed, and Bull’s affidavit. Between November 18 and December 10, the parties discussed the contents of a pretrial stipulation. On December 10, a stipulation was filed, although that stipulation did not include any agreed-upon facts.

Thereafter, and prior to entry of the trial court’s order granting the motion for summary judgment, the parties orally stipulated that the court and not a jury would determine whether either express or implied easements existed in appellant’s favor. Although that stipulation was not recorded, both parties have indicated to us that the stipulation did not address the question of “when the trial court could rule upon the easement questions.” Nevertheless, on December 10, after the summary judgment hearing (which was also unrecorded), the trial court entered an “Order for Final Summary Judgment.” In that order, the court made the following pertinent findings:

2. The parties stipulated before the Court that the determination of whether the Plaintiff had an express or implied easement would be for the Court to decide and would not be submitted to a jury.
3. The plaintiff relies upon the language contained at Paragraph 2 of an October 21, 1975 Agreement for Sale and Purchase and the language contained in a document, dated October 15, 1975, that purports to be a corporate resolution as the source of his entitlement to an express easement. Neither the contract nor the purported resolution clearly expresses the intention of the parties to create an express easement as further evidenced by the testimony of Robert C. Branson, Arthur Jones and Stanley Pi-variski, parties to the October 21, 1975 transfer, neither do either of the documents clearly define the scope and extent of the alleged easement, and neither were executed with the formalities required for the grant of an easement.
4. As a matter of law, from the facts as established by the pleadings, depositions, answers to interrogatories, and affidavits, there is no implied easement, as defined by 704.01(1), Florida Statutes, available to the plaintiff over lands leased to the defendant, LAKELAND FLYING SERVICE, INC., inasmuch as 704.01(1), Florida Statutes, does not provide for aircraft access to and from public runways.

On appeal, appellant contends the trial court erred in determining the easement questions at the summary judgment stage and in ruling that (1) the 1975 purchase and sale agreement and related documents do not create any express easements and (2) section 704.01(1), Florida Statutes (1981), does not provide for a “way of necessity” for aircraft access to and from public taxiways and runways.

We hold the trial court first committed error in deciding the easement issues prior to the time appellant had an opportunity to present his case-in-chief before the court. The oral stipulation, according to both parties and the language of the trial court’s order, simply stated the trial court and not a jury would determine whether express or implied easements existed in appellant’s favor. The stipulation did not, as admitted by the parties, indicate the court could resolve any genuine issues of material fact at the summary judgment stage and based solely upon facts derived from the court file. In short, we hold the stipulation simply provided there would be a nonjury trial as to the easement issues. Such an agreement between litigating parties is consistent with the spirit of Florida Rule of Civil Procedure 1.430(c). Accordingly, absent an express agreement that the court was to weigh disputed facts and determine the easement issues at the summary judgment stage, we will not deprive appellant of his right to present evidence and live testimony in open court. A party does not waive his “day in court” merely by agreeing to a nonjury trial. Thus, only after appellant has had the opportunity to present his case-in-chief can the court resolve the questions contained in this stipulation. Fla.R.Civ.P. 1.480(a). Therefore, the case must be remanded for nonjury trial for a determination of the easement issues in accordance with the dictates of this opinion.

In reaching its conclusions on remand, the trial court should be aware we find genuine issues of material fact exist as to whether appellant has an express easement for aircraft access between his hangar and the taxiways and runways and whether appellant has an express easement for vehicular access between his hangar and the public road adjoining the airport facilities. Holl v. Talcott, 191 So.2d 40 (Fla.1966). It is well-settled that an express easement can be created in favor of a leasehold estate at the time the contracting parties enter into a lease agreement. Robinson v. Feltus, 68 So.2d 815 (Fla.1953). Moreover, a contract may operate as a grant of an easement if it is necessary to give the agreement that affect in order to carry out the parties’ intent. Kingdon v. Walker, 156 So.2d 208 (Fla.2d DCA 1963); Jabour v. Toppino, 293 So.2d 123 (Fla. 3d DCA 1974).

In the case sub judice, it is the October 1975 Agreement and companion Lease (which we have noted incorporated by reference the terms and conditions of the 1965 original lease) that would form the basis of any possible express easements. Therefore, a question to be answered by the trial court, after reviewing the evidence received during the nonjury trial, is whether either or both of these instruments executed by LFS and appellant actually created an express easement for aircraft ingress and egress between hangar #3 and the public taxiways and runways and/or an express easement for motor vehicle access between hangar # 3 and the public road adjoining the airport.

We observe that no particular form and language are necessary to create an easement; rather, any words clearly showing the intention of the parties to create a servitude on a sufficiently identifiable estate is sufficient. Seaboard Air Lines Railway Co. v. Dorsey, 111 Fla. 22, 149 So. 759, 761 (1933). See generally 20 Fla. Jur.2d Easements § 14 (1980); 2 G. Thompson, Thompson on Real Property, § 332, p. 111-112 (1980 repl.). The failure of the parties to precisely describe the boundaries of the easements does not automatically render a transfer of the interest void. Kotick v. Durrant, 143 Fla. 386, 196 So. 802 (1940). The trial court can look to the intention of the parties to determine the location and extent of any purported easements. Kingdon. In the instant case, the parties’ intentions as to the precise description of any express easement can be ascertained by considering not only the terms of the October 1975 Agreement and Lease but also “the conditions and purposes for which the easement was intended,” “the situation of the parties and the property, the circumstances at the time the instrument is executed, the practical construction as evidenced by the conduct and admissions of the parties themselves, and by the single ‘contemporary usage with respect to the subject granted.’ ” Kingdon at 213.

Moreover, our examination of the October 1975 Agreement and Lease convinces us that each satisfies the statute of frauds and comports with the technical formalities necessary to create express easements. Burdine v. Sewell, 92 Fla. 375, 109 So. 648 (1926). Furthermore, the alleged easements would not be void because the agreement and lease have not been recorded; recordation only protects the easement holder from having a servitude extinguished by subsequent purchasers of lessors of the servient estate. Burdine. In the case below, the sale and transfer of LFS’s stock from previous stockholders of LFS to appellees Bull and MaGee in April of 1977 did not change the fact that LFS still held the leasehold interest in the burdened estate and remained obligated to fulfill the terms of the October 1975 Agreement and Lease executed between the corporation and appellant.

In addition to holding the trial court committed error by ruling at the summary judgment stage that no express easements were created by the October 1975 Agreement and Lease, we hold the trial court also committed error in ruling that, as a matter of law, a “way of necessity” for aircraft access could not be established under section 704.01(1), Florida Statutes (1981). Neither party has directed our attention to a case specifically on point, and our independent research indicates to us the issue seems to be one of first impression.

Section 704.01 provides, inter alia:

The common law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified. Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved. An implied grant arises only where a unity of title exists from a common source other than the original grant from the state or United States .... (Emphasis supplied).

As an initial point, we agree a leasehold is capable of supporting a “way of necessity.” Commonwealth v. Richardson, 313 Mass. 632, 48 N.E.2d 678, 146 A.L.R. 648 (1943); Alabama Fuel & Iron Co. v. Courson, 212 Ala. 573, 103 So. 667 (1925); Patterson v. Graham, 140 Ill. 531, 30 N.E. 460 (1892); Powers v. Harlow, 53 Mich. 507, 19 N.W. 257, 51 Am.Rep. 154 (1884); Southex Trading Co. v. Piankay Realties, Inc., 59 N.Y.S.2d 362 (Sup.Ct. 1946). This concept has been succinctly stated as follows:

Where land is leased and is so situated that access to it from the highway cannot be had except by passing over other land of the lessor, the lessee becomes entitled to a right to pass over the land of his lessor for the purpose of reaching the highway and returning to the leased land.

2 G. Thompson, Thompson on Real Property, § 362, p. 393 (1980 repl.). The policy of preventing the idleness of real property is no less important in landlord-tenant situations, especially in light of the fact that many leases are for extended periods of time and most leases contemplate a specific use.

Consequently, the main issue before us is whether a “way of necessity” can be recognized under section 704.01(1) where a lessee properly receives a leasehold estate which is intended to be used for aircraft storage, maintenance, flying instruction, and flying services, but the property is so positioned that access to it from public airport taxiways and runways by aircraft is not possible except by traveling over a portion of the lessor’s estate. We believe an affirmative answer to this question is in order upon a plain and ordinary construction of section 704.01(1) and upon examining the policy underlying the recognition of the “way of necessity,” especially when we apply the principle to a present day problem relating to easements and the inaccessibility of property. Cf. Redman v. Kidwell, 180 So.2d 682, 684 (Fla. 2d DCA), cert. denied, 188 So.2d 806 (Fla.1965), and appeal dismissed 189 So.2d 631 (Fla.1966).

First, section 704.01(1) does not restrict the application of the doctrine to any particular type of “lands or estates.” Additionally, the statute provides no limitation on the nature or physical makeup of the “way” sought to be imposed. Moreover, we hold, applying the “way of necessity” principle to this modern factual setting, that public airport taxiways and runways are the equivalent of public roads or highways. Therefore, their presence abutting the proposed servient estate can satisfy the requirement that the party seeking to impose the “way” must ultimately be in need of access to a “public road.” Hanna v. Means, 319 So.2d 61 (Fla.2d DCA 1975). It cannot be seriously contended that a public airport taxiway or runway or other access route provided for aircraft movement is significantly different in physical character or function than any public road, street or highway. Both public roads and public taxiways and runways are officially designated, created, and maintained passageways and thoroughfares which are integral parts of our entire transportation system and are specifically provided for the movement of people and property.

Very important in our decision to recognize that a “way of necessity” might be proper in a case such as the present one is the policy underlying section 704.01(1) and its common law predecessor. The main focus of the statute and common law is whether a route or path for egress and ingress between a purchaser’s or lessee’s estate and a publicly-designated passageway is necessary for “the reasonable, practicable, convenient, and comfortable enjoyment of the property” sold or leased. E.g., Redman at 684. Accord, Star Island Associates v. City of St. Petersburg, 433 So.2d 998 (Fla. 2d DCA 1983); Reyes v. Perez, 284 So.2d 493, 496 (Fla. 4th DCA 1973). In particular, with respect to facts analogous to this case, the question can be posed as follows: whether a refusal to recognize a “way of necessity” renders the shut-in property (hangar # 3) incapable of being beneficially used and enjoyed as contemplated by the October 1975 Lease? This is one of the questions which the trial court may have to answer on remand.

Therefore, because we hold a “way of necessity” can be imposed to create a right of ingress and egress to a public airport’s taxiways and runways from an airplane hangar, and because we find there are genuine issues of material fact with respect to this central issue, we direct the trial court on remand, if it concludes that no express easement for aircraft access exists, to determine whether the facts of this particular case require a “way of necessity” to be recognized. The trial court must look to the requirements of section 704.01(1), this opinion, and the cases construing the statutory provision when making its determination. See Star Island Associates; Dinkins v. Julian, 122 So.2d 620 (Fla. 2d DCA 1960). Furthermore, should the trial court rule that appellant is entitled to a “way of necessity,” we note that section 704.01(1) “clearly contemplates that such a way of necessity be of reasonable length and width, consistent with the needs of the owners or lessees of the lands that are hemmed in.” Hayes v. Reynolds, 132 So.2d 781, 782 (Fla.App.1961).

As a final point, we mention the trial court’s order granting summary judgment did not address whether appellant was entitled to a “way of necessity” for motor vehicles between hangar # 3 and the public road adjoining the airport facility. Accordingly, because we find genuine issues of material fact exist as to this issue as well, the trial court is further directed, if it finds an express easement does not exist with respect to this matter, to determine whether section 704.01(1) requires that a “way of necessity” be recognized and imposed over property leased to LFS.

REVERSED and REMANDED, with directions, for further proceedings consistent herewith.

OTT, C.J., and LEHAN, J., concur.

      . LFS, the assignee of the original lessee who executed a 1965 lease with the City, was entitled under that lease to assign the property underlying hangar # 3 (hangar # 3 was not in existence at the time of the 1965 lease). See note 4.

      . LFS received these parcels of property as a result of it receiving the assignment of the interest in the 1962 lease between the original lessee and the City.

      . The extension expanded the term of the original lease until June 21, 1985.

      . In this respect, the 1965 lease provides in relevant portions:

      2. The Lessee shall have the right ... to construct or erect upon said premises above described, at its own expense, buildings known as T-Hangars or hangar buildings_

      11. It is further mutually agreed and understood by the parties hereto that the premises leased shall be used for aircraft storage, repair, overhaul, aircraft and parts sales and service, flight instruction, aircraft charter, passenger flights, aerial photos and surveys, office space for the Lessee only, or other aviation purposes authorized by the Lessor.

      13. It is understood and agreed that the Lessee shall have the joint use of the ramps, runways, taxi-ways and other facilities provided for aircraft and the public at said airport.

      15. The Lessee may assign or sublet the premises ....

      22. On the 1st day of March 1962, the parties hereto entered into a lease agreement covering Hangar No. 2_
      23. It is mutually understood and agreed that the Lessee shall have the right and option to renew this lease for an additional ten year period ....

      .Apparently, the second amended federal complaint was filed as the state complaint with the understanding that the dismissed federal count (# 4) was to be given no effect by the parties or the trial court.

      . It is unclear from the record as to the present status of LFS after it filed bankruptcy; however, we note the effect of the automatic stay provisions of 11 TJ.S.C. § 362 (the Bankruptcy Code).

      . According to the trial court’s order, the City orally moved for summary judgment at the summary judgment hearing on the same grounds argued by Bull and MaGee.

      . Even if LFS did not possess the leasehold interest in all the property situated between hangar # 3 and the public road at the time the Agreement and Lease were executed, the doctrine of after-acquired title might apply because of the July 22, 1980 lease between the City and LFS. Kingdon at 217.

      . With respect to the alleged express easement for aircraft access, the trial court should consider, along with any other admissible evidence, the diagram attached to the 1965 lease which was incorporated by reference into the October 1975 Agreement and Lease.


source: Caselaw Access Project

author: HOBSON, Judge.

license: Public Domain

text:
    Olivia RODRIGUEZ, as Personal Representative of the Estate of Eddie Rodriguez, Appellant, v. CITY OF CAPE CORAL, Renny Wiersma and The Aetna Casualty & Surety Company, Appellees.
    No. 83-1068.
    District Court of Appeal of Florida, Second District.
    May 4, 1984.
    Rehearing Denied June 19, 1984.

      Joel S. Perwin of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appel-lees.
   HOBSON, Judge.

Plaintiff/appellant appeals a final summary judgment entered in favor of municipal defendants/appellees. We affirm.

This action commenced on January 4, 1980, when the appellant, as personal representative of the estate of Eddie Rodriguez, filed a lawsuit charging the City of Cape Coral and three of its police officers, among other defendants, with the wrongful death of Eddie Rodriguez. After a series of amended complaints, the appellant filed a fourth amended complaint. The amended complaint alleges, inter alia, that in the early morning hours of October 15, 1978, the decedent, obviously intoxicated, was walking east on the Cape Coral Parkway towards the Cape Coral Bridge in Cape Coral. At that time he was observed by several officers of the Cape Coral Police Department, one of whom was Renny Wi-ersma, appellee.

The amended complaint further alleges that at that time “Rodriguez had a blood alcohol of approximately .216% and was staggering in his motions, rocking back and forth, had a strong smell of alcohol on his person, and talked with extremely slurred words, having consumed a quart of rum that evening” and that the decedent’s intoxicated condition was or should have been known to each of the three officers. The officers engaged in conversation with Rodriguez after which they requested a third party, who was at that location, to have Rodriguez transported over the Cape Coral Bridge.

The amended complaint goes on to allege that, because Rodriguez was obviously intoxicated and as such incapacitated and in need of medical assistance, the officers were negligent in failing to take him into protective custody. As evidence of such negligence, the amended complaint alleges that the officers were required under section 396.072, Florida Statutes (1977), to take the decedent into protective custody, the failure of which was the proximate cause of Rodriguez’s death when an automobile struck him as he attempted to cross the Cape Coral Parkway. The amended complaint also alleges that the City of Cape Coral was negligent in failing to train police officers in a manner which complies with section 396.072.

In response, the municipal defendants filed a motion for summary judgment on three grounds: 1) that there was no evidence showing that Rodriguez was obviously intoxicated on the morning of October 15, 1978, and thus was not incapacitated within the terms of section 396.072; 2) that the city’s conduct was not a proximate cause of Rodriguez’s death; and 3) that the plaintiff had produced no evidence that the city was negligent in failing to train its officers. The trial court granted the summary judgment regarding two of the police officers who had been at the scene, but denied the motion regarding both the City of Cape Coral and Renny Wiersma, the officer who had made the decision not to take Rodriguez for treatment.

Thereafter, this court decided Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983), and City of Cape Coral v. Duvall, 436 So.2d 136 (Fla. 2d DCA 1983), and the municipal defendants filed another motion for summary judgment asserting that the decision not to take Rodriguez into protective custody was a discretionary decision and that the municipal defendants, therefore, were protected by the sovereign immunity doctrine of Everton and Duvall. The defendants’ motion for summary judgment also alleged that there was no duty on the part of Renny Weirsma to take Rodriguez into protective custody or to take him to the hospital under the facts of the ease.

Apparently agreeing, the trial court entered a final summary judgment for the remaining municipal defendants.

Among other issues raised in this appeal, appellant argues that the trial court erred in entering final summary judgment for the remaining municipal defendants because, unlike Everton, which addresses sovereign immunity protection arising from a deputy sheriff’s discretionary decision as to whether to arrest a drinking driver, this case involves the city’s negligence in failing to perform a nondiscretionary, ministerial function required by section 396.072(1), Florida Statutes (1977). With this assertion, we disagree.

In Everton, Azor Everton, a passenger in a car driven by Renee Trinko, was seriously injured and Trinko was killed in a two-car collision. Marion Willard, who drove the second vehicle, was stopped several minutes before the accident by a sheriff’s deputy. The deputy issued a citation for a traffic violation and, while doing so, observed that Willard had been drinking, a fact Willard himself admitted. The deputy did not charge Willard with a driving offense related to intoxication, and Willard drove away. Appellants alleged that the deputy sheriff violated a duty he owed to them and to the public in general by not detaining or arresting Willard for intoxication and that this violation resulted in the subsequent collision causing Trinko’s death and Everton’s injuries. The trial court, in granting appellees’ motion to dismiss, explained that “the law enforcement officer must be allowed the freedom to exercise his discretion, a discretion to enforce which lies at the very heart of the policy of law enforcement, without being subject to suit in tort if his decision in retrospect results in misfortune to innocent third parties.” 426 So.2d at 998.

On appeal, this court affirmed the trial court in a detailed and thorough opinion, holding that neither a county nor deputy sheriff may be held liable for the exercise of discretion not to arrest a driver who has been drinking, when that driver subsequently causes injury. Notwithstanding two noteworthy distinctions between Ever-ton and this case, 1) that the person against whom the officer exercised his discretion was not the subsequent accident victim, and 2) that the discretionary decision in Everton was whether to arrest a driver who had been drinking, we adopt Everton ⅛ rationale and holding to the facts of this case.

This is not the first time the Everton reasoning and holding has been adopted by this court. In City of Cape Coral v. Duvall, four parties filed lawsuits against the city, Margaret McNally, Randall Industries, Inc., William Adkins and three insurance companies, seeking damages for personal injuries and wrongful death arising out of an automobile accident. The amended complaint alleged that all the plaintiffs were occupants of a taxicab struck by an automobile operated by McNally. McNally had been stopped several hours earlier by the city police department. The complaint further alleged that McNally was intoxicated, but the police department did not arrest McNally. Rather, he was delivered into the custody of Adkins, a cab driver for Jack’s Radio Cabs, a subsidiary of Randall Industries. The complaint alleged that the officers negligently failed to determine the correct whereabouts of McNally’s residence and the cab company failed to deliver him to his home. McNally was returned to his car by the cab company, after which McNally drove away and subsequently caused the accident and injuries to appel-lees. Following trial, the jury returned a verdict against McNally, Jack’s Radio Cabs and the City of Cape Coral, and awarded damages. Subsequently, the city appealed alleging, inter alia, that the trial court erred in refusing various jury instructions.

On appeal, this court held that the trial court erred in failing to instruct the jury on an applicable statute. However, rather than reversing’ and remanding the cause for a new trial on that basis, the judgments below awarding appellees damages for personal injuries were vacated based on the rationale and holding of the then recently decided case of Everton v. Willard. Everton and Duvall serve as the basis for our decision in this case.

Section 396.072(1), Florida Statutes (1977), provides in pertinent part:

Any person who is intoxicated in a public place and appears to be incapacitated shall be taken by the peace officer to a hospital or other appropriate treatment resource. A person shall be deemed incapacitated when he appears to be in immediate need of emergency medical attention or when he appears to be unable to make a rational decision about his need for care.

(Emphasis added.) Thus, pursuant to the language of the statute, it is when a person “appears” to be incapacitated that the duty of a police officer arises. The determination of whether a person appears to be incapacitated is an officer’s judgmental decision which is limited by time, lighting conditions, communications and other circumstances. Thus, in this case, after Officer Weirsma observed and conversed with the decedent, he determined that the decedent was not incapacitated and did not take him into protective custody. Such a determination was within Officer Weirsma’s discretion.

We, therefore, hold that neither a city nor a city police officer may be held liable for the exercise of his discretion in not taking an intoxicated person into protective custody under section 396.072(1), Florida Statutes (1977).

AFFIRMED.

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


author: PER CURIAM. FRANK D. UPCHURCH, Judge, SHARP, Judge,

text:
    In re the ESTATE OF Chad STARLING. Dewayne Y. STARLING and Wilma C. Starling, as Personal Representatives, Appellants, v. Asis SAHA and Barbara Saha, Appellees.
    No. 82-1457.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.
    Rehearing Denied June 19, 1984.

      R. Lee Dorough, of Whitaker & Koepke, Orlando, for appellants.
    Charles T. Wells, of Wells, Gattis, Hal-lowes & Holbrook, P.A., Orlando, for appel-lees.
   PER CURIAM.

The Starlings appeal from a final summary judgment entered against them on their negligence count (Count I) and the dismissal of their attractive nuisance count (Count II). The appellants sued the Sahas after their minor son, Chad, drowned while swimming in a pond which had been excavated on the Sahas’ land. Chad was an excellent swimmer, but he was caught and held under water by the suction of a hose attached to a pump, which had been left running, unsupervised, at the pond. We think the attractive nuisance count states a good cause of action and it was improperly dismissed; but we affirm the summary judgment on the negligence count because the record establishes as a matter of law that the relationship between the Sahas and the operator of the pump was one of employer-independent contractor.

COUNT I: NEGLIGENCE

The record shows that Dr. Saha entered into an oral agreement with White to dig a pond on his property to water Saha’s cattle. In return, White was entitled to keep or resell all the dirt. By the summer of 1980 the pond was excavated, but it needed to be squared and sloped. White arranged for Davis, another dirt broker, to do the final work, because he did not have the needed equipment. Davis started his pump running on the morning of the day Chad drowned. He left it running unattended, and was not on the property at the time Chad drowned by becoming caught in the hose. Saha did not supervise Davis or White in any manner, although he made periodic visits to the property to feed and look after his livestock.

The trial court held that the relationship between White and Davis and the Sahas was one of employer-independent contractor. The basic element in an employer-employee relationship is the right or the actual exercise of control by the employer over the details or means by which the work is performed. Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla. 1st DCA 1958). In this case, Davis was clearly an independent contractor. Although he may have been negligent in leaving the pump running, his employer, Saha, has no vicarious liability for his negligence. Fisherman’s Paradise, Inc. v. Greenfield, 417 So.2d 306 (Fla. 3d DCA 1982).

Further, the record establishes that appellees did not know Davis was running the pump at the time of this accident or that it was a dangerous risk to the neighborhood children who trespassed to swim in the pond. In order for there to be liability on the part of the landowner, it must be established that the landowner knew or should have known of the danger or risk to the class of persons, one of whom was injured. The Sahas did not know of the pump or any defect in the hose; nor should they have known because they were not exercising control over the pond. That control was in the hands of the independent contractor. See Winn Dixie Stores, Inc. v. Virginia Construction Company, Inc., 330 So.2d 158 (Fla. 1st DCA 1976).

COUNT II: ATTRACTIVE NUISANCE

In Count II appellants alleged that Dr. Saha and his employees knew neighborhood children entered Dr. Saha’s property to swim in the excavated pond; and that the unsupervised running of the pump in the pond, with its concealed and unguarded intake hose beneath the surface involved an unreasonable risk of death to the children; and that Chad was drowned when he became caught in the hose by the suction of the pump. The lower court dismissed this count because appellants alleged that the child was attracted onto Dr. Saha’s premises by the prospect of swimming in the pond rather than curiosity about the pump or hose. This view, however, overlooks the fact that the pond alone did not kill the child. The combined effect of the hose holding him and the water in the pond accomplished the drowning.

In applying the attractive nuisance doctrine, we are bound by the Florida Supreme Court’s requirement that the plaintiff allege and prove that a child was lured or attracted onto the land by the condition or structure that injured him. Johnson v. Bathey, 376 So.2d 848 (Fla.1979); Concrete Construction, Inc. of Lakeworth v. Petterson, 216 So.2d 221 (Fla.1968). The source of this requirement is apparently the much criticized opinion by Justice Holmes in United Zinc & Chemical Company v. Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615 (1921). However, we should not read this requirement so literally that we abolish application of the attractive nuisance doctrine to concealed dangers operating in connection with conditions or other objects on property, which jointly contribute to the child’s injury.

The Florida Supreme Court’s cases which discuss the allurement requirement do not mandate this interpretation. In Johnson, a child was injured by a pump operating on dry land, after being attracted onto the land by the prospect of receiving surplus vegetables from a packing house. The pump alone was the cause of his injury. The discussion of the allurement plus injury element in Petterson is dictum. Petter-son held that the explosion of a construction cartridge which was found and carried away by a child the previous day was too remote in time and location to impose liability on the landowner. The injury has to occur on the premises.

Allen v. William P. McDonald Corporation, 42 So.2d 706, 706 (Fla.1949), states the rule of law which is controlling in this case:

[T]he owner of artificial lakes, fish ponds, mill ponds, gin ponds and other pools, streams and bodies of water are not guilty of actionable negligence on account of drownings therein unless they are constructed so as to constitute a trap or raft or unless there is some unusual element of danger lurking about them not existent in ponds generally. (Emphasis supplied).

The Allen court held that the complaint stated a cause of action under the attractive nuisance doctrine. The complaint alleged that a child was attracted onto the defendant’s property by white sand piled around an artificial pond. It said the steep slopes and resulting drop-off into the water constituted a hidden or concealed danger. As in the case at bar, the child in Allen drowned in the pond. The combination of what attracted him, the sand plus the concealed danger (steep slopes), killed him. The court did not separate the two. Significantly, the court did not say recovery would not lie because the child was attracted by the benign white sand rather than the hidden steep slopes.

Ansin v. Thurston, 98 So.2d 87 (Fla. 3d DCA 1957), cert. denied, 101 So.2d 808 (Fla.1958), followed Allen. In Ansin, a child was lured onto the property by banks of white sand surrounding a pit filled with water. The child evidently found a raft at the end of a dock and drowned when it tipped over while he was playing on it. The concealed danger was the sudden and steep drop-off of the sides of the pit. The white sand of the artificial pond attracted him, but the concealed danger caused his drowning. The court did not deny recovery because the child was not attracted by the hidden, steep banks. See also Larnel Builders v. Martin, 105 So.2d 580 (Fla.3d DCA 1958), cert. dismissed, 110 So.2d 649 (Fla.1959).

Hendershot v. Kapok Tree Inn, Inc., 203 So.2d 628 (Fla.2d DCA 1967), which was relied on by the trial court, is distinguishable from the case before us, although we have trouble distinguishing it from Ansin and Larnel. In Hendershot, the court held there were insufficient allegations that “a man-made condition which involved an unusual element of extreme danger” existed in an artificial pond where a child drowned. Id. at 630. The complaint alleged the concealed danger was a sudden drop-off two feet from the edge of the water. In the instant case, the complaint alleges the existence of an extremely dangerous intake hose of sufficient size and strength to catch and hold a swimmer. A better man-made trap we cannot imagine.

The point is that if the thing that attracts a child onto the premises has concealed in its depths a dangerous object or is in a dangerous state, the attractive nuisance doctrine should apply. The first case in Florida to adopt the attractive nuisance doctrine, Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330 (1925), illustrates this point. There, a child was attracted onto the defendant’s property by a beautiful blooming magnolia tree. He climbed the tree to pick the blossoms, unaware that hidden in the foilage of the tree were wires charged with high electrical voltage. The court applied the attractive nuisance doctrine, although it could not be said the child was attracted onto the property by the wires that injured him, anymore than in the instant case the child was attracted by the pump that killed him.

Because Count II states a good cause of action, the trial court erred in dismissing it. At this juncture it is improper for us to look beyond the pleadings and affirm the dismissal because other matters in the record might sustain a summary judgment on the grounds that the workmen were independent contractors or that Dr. Saha did not know the pump was being negligently used. Green Springs, Inc. v. Calvera, 239 So.2d 264 (Fla.1970); Vogel v. Allen, 443 So.2d 368 (Fla. 5th DCA 1983).

In any event, Florida case law does not shield a landowner from liability if a child is injured on his premises by an “attractive nuisance” created or operated on his land by an independent contractor. In Butler v. Porter-Russell Corporation, 217 So.2d 298 (Fla.1968), a child was injured on a construction site where a building project was underway. A concrete block fell on him from a pile of blocks, which had been negligently stacked by a subcontractor. The blocks were delivered to the site at the end of a work day, when no one else was present, and the injury occurred shortly thereafter. The court reversed a summary judgment for all four defendants, the owner, the general contractor, the trucker who delivered the blocks, and the sub or materi-alman who supplied the blocks. The court stated:

The test to be applied in a case of this type is whether a reasonably prudent person should have anticipated the presence of children or other persons at the place where appellee created a condition that a jury could find was an ‘inherently dangerous condition’ ....

Id. at 300. The court concluded a jury could find the defendants, or some of them, should have foreseen the possibility a block would fall on a child.

In Carter v. Livesay Window Company, Inc., 73 So.2d 411 (Fla.1954), the court reversed a summary judgment in favor of a general contractor, and allowed the case to proceed to a jury against the general contractor and the landowner. In Carter, a child was killed on a building site when a heavy window fell on him. The window had been improperly braced by a subcontractor on the site. The court said the test was whether a reasonably prudent person should anticipate the presence of children at the place where a jury might find an inherently dangerous condition or a dangerous instrumentality was created. If an independent contractor creates an inherently dangerous condition that may be found to be an attractive nuisance, the independent contractor status does not insulate the employer from liability. See Fouraker v. Mullis, 120 So.2d 808 (Fla. 1st DCA), cert. denied, 123 So.2d 674 (Fla.1960).

Accordingly, we affirm the summary judgment as to Count I; and we reverse the dismissal of Count II.

AFFIRMED IN PART AND REVERSED IN PART.

DAUKSCH, J., concurs.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur in part; dissent in part, with opinions.

FRANK D. UPCHURCH, Judge,

concurring in part, and dissenting in part.

I concur with Judge Dauksch in affirming the final summary judgment as to count I.

I also agree that count II states a cause of action under the attractive nuisance doctrine. Count II alleged the following:

14. The Defendants and their agents, employees or servants knew or should have known that the Plaintiffs’ decedent and other minor children were entering or would enter the property of the Defendants to swim in the pond located on the property and in spite of this knowledge, installed upon the property a pump which had its intake pipe located beneath the surface of the pond and was concealed from Plaintiffs decedent and other minor children.
15. That the Decedent was attracted onto the property of the Defendants by the pond, and entered the pond to swim and dive based on such attraction and allurement.
16. Defendants and their agents, employees or servants knew or should have known that the installation of the pump and concealed intake pipe beneath the surface of the pond, with no warning being posted and no supervision of the operation of the pump involved an unreasonable risk of death to Plaintiffs’ decedent and other minor children entering .the property. Further, Defendants knew or should have known that the maintenance of this pipe in its concealed condition without any screen or guard on the pipe created an extremely hazardous condition and a trap.
17. Plaintiffs’ decedent had never seen the pump located on the pond before the date of his death and being unaware of the concealed pipe, its size and location within the pond, could not realize the risk involved in swimming in the pond.
18. Defendants knowingly allowed a dangerous condition involving unreasonable risk of harm to exist upon their property, (emphasis added)

As the basis for summary judgment as to count I, the court below found in part:

[T]he Defendants had an oral contract with one Sam White, for the digging of this pond. The sole consideration to be received by Mr. White was the fill from the excavation. It is not shown that the Defendants retained any right to control the work but it is expressly shown that they did not in fact exercise any control over the work. They had reserved the right to terminate the work at their option but had not exercised this option at the time of the death of Plaintiffs’ son on July 7, 1980. The contract required that the bank of the pond be slopped [sic]. Mr. White subcontracted that work to a Mr. Davis, a fact of which the Defendants were unaware. Mr. Davis had within the two or three days before the accident brought upon the premises the pump which was in operation and which was involved in the accident. The Defendants did not know Mr. Davis was on the job and exercised no control over his work. The Defendants had knowledge that a pump had been used by Mr. White in the past for the purpose of draining water from the pond, to aid and assist in the work. The Defendants had no knowledge that the deceased was on the property on July 7 and had never given him permission to be on the property at any time. The Defendants’ property was completely enclosed by a fence with a gate. The Plaintiffs do not assent that the gate was opened or that the deceased used the gate at any time. Based on the foregoing facts, the Court concludes, as a matter of law, that the relationship between the Defendants and Mr. White was one of owner and independent contractor (footnote omitted) and that the deceased minor plaintiff was a trespasser or at most an uninvited licensee. The owners did not know of his presence and had no opportunity to take precautions to warn him, if they had been aware that the pump constituted a dangerous condition, (emphasis added)

The facts set out above would negate a determination of liability under the attractive nuisance doctrine. Thus, it is obvious that the appellants cannot prevail. Based on the principle of collateral estoppel, I would remand the case with directions to enter a final summary judgment in favor of appellees.

SHARP, Judge,

concurring in part and dissenting in part.

I dissent only on the affirmance of the summary judgment as to Count I; otherwise, I endorse the per curiam opinion.

The lower court granted summary judgment for Dr. Saha because it found his relationship with White and Davis was employer — independent contractor. I question whether the record in this case is so clear that a jury might not have found the casual, verbal, and long-term relationship between White and Dr. Saha was a kind of partnership or joint venture, which would impose vicarious liability on Dr. Saha. I think the status of the parties should have been submitted to a jury. Gregg v. Weller Grocery Company, 151 So.2d 450 (Fla. 3d DCA 1963), 41 Am.Jur.2d Independent Contractor § 53 (1968).

Further, even if the relationship between White-Davis and Dr. Saha was one of employer — independent contractor, the record discloses disputed facts upon which a jury could find the general rule of non-liability should not apply here. Read in a light most favorable to the appellants, the depositions and affidavit in the record establish that Dr. Saha’s excavated pond had become a favorite swimming hole for the neighborhood children. For two summers since it was dug, and while it was being enlarged, they regularly climbed the fence and swam in the pond, and played on the “mountains” or “hills” of dirt created by the drag-line operation.

The children thought they had Dr. Saha’s permission to swim in the pond. He gave permission to one child to swim there and an unidentified worker on a bulldozer told another she could swim in the pond. Dr. Saha frequently visited the property to feed his livestock. The children saw him and his workers on the property while they were swimming. One child built a diving board at the deep end of the pond, which they played on. The workers as well as Dr. Saha saw them and they must have been aware that children were swimming in the pond on a frequent basis.

The excavation and digging process involved the simultaneous running of a pump to drain down the water in the pond so that dirt could be dug out along the slopes or edges. White’s six inch pump ran from time to time at the site, for at least a year prior to the accident. Dr. Saha must have been aware of it, due to his frequent visits to the property. Aside from running on gasoline rather than diesel fuel, White’s pump was not materially different than Davis’, the pump involved in the child’s death. Both were six inch pumps, used in similar ways to lower the water level in the pond.

White and Davis were both aware that various neighborhood children regularly trespassed on Dr. Saha’s property to swim and play on the dirt piles. White testified you would have to be blind not to be aware of the children’s presence. Both were concerned that a child might be injured by their equipment (backhoes, dragline, tractors) or trucks driven onto and off the property by other small business independent contractors.

On the day the child drowned, Davis started the pump running early in the morning. He noticed children had put mud on his backhoe and tractor parked near the pond. It was still wet, and had small feet and hand prints on it. Near the banks he noticed many children’s bare foot prints. He also knew the hose he was using to pump the water out of the pond was mashed at the intake end, and would not have pulled enough water had it not been for an eighteen inch gash along the side near the end, and one closer to the surface. The holes were unscreened and unshielded. The hose was under water, and unmarked. The pump and hose were at the deepest part of the pond, near the diving board the children had made and used often. Despite all of these indicia of the presence of children, Davis left the pump running, unmarked and unsupervised at 11:00 a.m. when he left for lunch. He did not return until 4:00 p.m., when he learned of the accident.

The scenario of this tragedy, although disputed in part by appellants, could, I think, enable a jury to find liability on the part of Dr. Saha for his own negligence in not taking reasonable precautions to protect the children from injury resulting from their contact with the dangerous machinery operating on his land.

A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety-

Restatement (Second) of Torts § 334 (1965).

A Florida case which appears to apply this Restatement principle is Maldonado v. Jack M. Berry Groves Corp., 351 So.2d 967 (Fla.1977). A three year old child accompanied his parents to the owner/defendant’s grove, where they picked fruit as part of a crew hired and supervised by an independent contractor. An employee of the independent contractor ran a “goat” to lift tubs of fruit into trucks. He was operating the vehicle in reverse, without a rearview mirror, when he ran over the child. The Maldonado court based the grove owner’s liability on the fact that the owner knew children were present with their parents in the grove, although it tried to discourage the practice of bringing the children; and it knew the operation of the “goat” near young children created a dangerous situation for them. The court held that the fact that the goat was used by an independent contractor “will not shield an employer/landowner from legal liability, if the employer/landowner was negligent in failing to take sufficient precautions to alleviate the dangerous situation.” Id. at 968. Summary judgment for the landowner was reversed, as it should be in this case.

An additional exception to the rule of non-liability for torts of independent contractors exists for work done on a landowner’s land which is dangerous by its nature or likely to cause a special risk of harm to others unless special precautions are taken. Restatement (Second) of Torts § 416 (1965); 2 Fla.Jur.2d Agency & Employment § 113 (1977). Under these circumstances, the independent contractor defense is not available to the landowner. See Rayonier, Inc. v. Bryan, 249 F.2d 405 (5th Cir.1957); Rohlfs v. Weil, 271 N.Y. 444, 3 N.E.2d 588 (1936); Rickman Brothers Company v. Miller, 131 Ohio St. 424, 6 Ohio Op. 119, 3 N.E.2d 360 (1936).

Florida cases have recognized this exception. See Maule Industries, Inc. v. Messana, 62 So.2d 737 (Fla.1953) (damages caused by independent contractor pumping water on landowner’s land, which resulted in flooding and damage to plaintiff’s crops); Stuyvesant Corp. v. Stahl, 62 So.2d 18 (Fla.1952) (hotel liable when third party injured by employee of independent contractor who had parking concession, and employee was driving an automobile in the course of his employment); Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978) (improper loading of cargo on airplane by independent contractor); Ross v. Heitner, 156 So.2d 869 (Fla. 3d DCA 1963) (damage caused by independent contractor’s use of chemicals in exterminating pests in structure). Where there is evidence to support it, the question of whether the activity is dangerous should be resolved by the jury.

In Florida Power & Light Company v. Price, 170 So.2d 293 (Fla.1964), the court refused to apply this rule to the employee of an independent contractor who was injured by another employee, in a suit against the land or easement owner, because the injured person was an employee rather than a member of the public. However, it reaffirmed the exception as stated by the district court of appeals for injuries to a member of the public:

As to such work, liability cannot be evaded by employing an independent contractor — unless proper precautions are taken. The taking of these precautions, it is said, is a non-delegable duty owing to third persons who may sustain injuries from the work; and in such instances, the contractor is considered an agent or servant for whose act his employer is responsible. Whether work of a given character is to be regarded as inherently or intrinsically dangerous is to be determined by applying the test of whether danger inheres in the performance of the work ... and it ⅛ sufficient if there is a recognizable and substantial danger inherent in the work, even though a major hazard is not involved.

Id. at 295.

This record contains a sufficient basis for a jury to find the work being done on Dr. Saha’s premises was inherently dangerous, or dangerous to known child trespassers, and therefore liability on the part of the landowner could be premised on his own negligent failure to take precautions or on vicarious liability for his independent contractor’s failure to do so. For these reasons I think summary judgment was improperly entered on Count I (the negligence count) in this case.

      . Most courts now have abandoned the requirement of allurement. W. Prosser, Law of Torts § 58 (4th ed. 1971).

      . See also Atlantic Peninsular Holding Co. v. Oenbrink, 133 Fla. 325, 182 So. 812 (1938), where a child was attracted to a hotel under construction and fell through an open shaft when the fourth floor collapsed due to a latent defect in the floor's construction. The attraction was the unfinished hotel and the danger was the defective floor and unguarded shaft.

      . See Husky Industries, Inc. v. Griffith, 422 So.2d 996 (Fla. 5th DCA 1982).

      . The general rule of an employer’s lack of liability for the torts of a general contractor has so many exceptions one authority suggests the exceptions have become the rule. Annot., 96 A.L.R.3d 1213 (1979).

      . Holl v. Talcott, 191 So.2d 40 (Fla.1966).

      . Channell v. Musselman Steel Fabricators, Inc., 224 So.2d 320 (Fla.1969); Hill v. Walker’s Cay Air Terminal, Inc., 405 So.2d 198 (Fla. 4th DCA 1981); 41 Am.Jur.2d Independent Contractor § 53 (1968).

      . Maldonado v. Jack M. Berry Groves Corp., 351 So.2d 967 (Fla. 1977).

      . Channell, 224 So.2d 320.


author: DAUKSCH, Judge.

text:
    George BERENYI and Naomi Berenyi, his wife, Appellants, v. HALIFAX HOSPITAL DISTRICT d/b/a Halifax Hospital Medical Center; Garner Emergency Physicians, P.A., a Florida professional association; Iris Eisenberg, M.D. and Charles J. Wolfe, M.D., Appellees.
    No. 83-963.
    District Court of Appeal of Florida, Fifth District.
    May 17, 1984.
    Rehearing Denied June 19, 1984.
    William A. Parsons, P.A., Daytona Beach, for appellants.

      John Spencer Robinson, John Spencer Robinson and Associates, Daytona Beach, for appellee Wolfe.
    No appearance for Halifax Hosp., Garner Emergency Physicians, P.A., and Iris Ei-senberg, M.D.
   DAUKSCH, Judge.

This is an appeal from an order which says only “... the Motion to Dismiss is granted.” We are without jurisdiction to entertain an appeal from such an order. It is noted further that the motion to dismiss is based upon the asserted failure to state a cause of action. An order dismissing a complaint-without saying “with prejudice” means the complaint may be refiled; proceedings below have not been terminated by the order and we have no jurisdiction.

APPEAL DISMISSED.

COWART, J., and COLEMAN, T.P., Associate Judge, concur.


author: PER CURIAM.

text:
    Robert A. ARCHER, Appellant, v. STATE of Florida, Appellee.
    No. 84-320.
    District Court of Appeal of Florida, Second District.
    May 18, 1984.
    Rehearing Denied June 20, 1984.
   PER CURIAM.

Appellant appeals from the summary denial of his petition for writ of habeas corpus, which this court has elected to treat as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Upon examination of the record, we find that on August 4, 1978, the trial court imposed judgment and sentence for the same offense in two separate eases, Case No. CRC78-1110CFANO-C and Case No. CRC7501193CFASO. We also find, however, that on September 5, 1978, the trial court vacated the sentence imposed in Case No. CRC78-1110CFANO-C leaving only the sentence imposed in Case No. CRC7501193CFASO in effect. Therefore, contrary to appellant’s assertions, his sentence was lawful.

WE THEREFORE AFFIRM THE ORDER APPEALED IN ALL RESPECTS.

GRIMES, A.C.J., and RYDER and DAN-AHY, JJ., concur.


text:
    Jerry GRUEN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-591.
    District Court of Appeal of Florida, Third District.
    May 29, 1984.
    Rehearing Denied July 11, 1984.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Michael J. Nei-mand, Asst. Atty. Gen., and Lawrence G. Price, Certified Legal Intern, for appellee.
    Before HUBBART and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Brill v. State, 159 Fla. 682, 32 So.2d 607, 609 (1947); Carone v. State, 361 So.2d 437 (Fla. 2d DCA), cert. denied, 365 So.2d 710 (Fla.1978); Randolph v. State, 292 So.2d 374 (Fla. 3d DCA), cert. denied, 300 So.2d 901 (Fla.1974).


text:
    Michael Raymond MORRISSEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-216.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We find no error by the trial court in refusing to sever appellant’s trial from that of his codefendant. McCray v. State, 416 So.2d 804 (Fla.1982). We also find no reversible error by the trial court in the admission of the fingerprint evidence or in its instructions to the jury. We agree with appellant, however, that his conviction for the lesser included offense of attempted robbery with a firearm cannot stand. See Bell v. State, 437 So.2d 1057 (Fla.1983).

Accordingly, we affirm appellant’s conviction and sentence for murder, but remand this cause to the trial court with directions that the conviction for attempted robbery with a firearm be vacated.

ANSTEAD, C.J., and LETTS and BERA-NEK, JJ., concur.


text:
    Jeffrey DEMICK, Appellant, v. STATE of Florida, Appellee.
    No. 83-230.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Rehearing Denied July 11, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant has raised several issues which are identical to those raised in the companion case of Morrissey v. State, 451 So.2d 526, which decision is issued simultaneously herewith. We resolve those issues in accord with the opinion in Morrissey. However, appellant has also raised a claim that he was entitled to a mistrial when the prosecutor stated in closing argument that the state’s chief witness, an admitted participant in the same crimes alleged against appellant, had, unlike appellant, voluntarily given a detailed and truthful statement to the police admitting his participation in the crimes alleged. Appellant claims that this constituted an improper comment on his right to remain silent. See Kinchen v. State, 432 So.2d 586 (Fla. 4th DCA 1983).

Under the prevailing law as set out in Kinchen, if the comment is fairly susceptible of being interpreted by the jury as a comment on the appellant’s exercise of his right to remain silent when initially confronted, such a comment constitutes per se reversible error. Here, a comment that the prosecution witness gave a statement up front, and the defendant did not, is surely “fairly susceptible” of being interpreted as a comment on appellant’s failure to speak out in the beginning. In other words, under the “fairly susceptible” standard adopted by the Florida Supreme Court, we have no choice but to reverse. In doing so, however, we acknowledge, as we did in Kinchen, that two of our sister courts have applied different standards than we apply here. See Gains v. State, 417 So.2d 719 (Fla. 1st DCA 1982); and State v. Bolton, 383 So.2d 924 (Fla. 2d DCA 1980).

Accordingly, appellant’s convictions are reversed and this cause is remanded for a new trial in accord herewith.

ANSTEAD, C.J., and LETTS and BERA-NEK, JJ., concur.

      . In reviewing the record, we believe that the prosecutor's remarks were actually made in response to defense counsel’s attack during final argument on the credibility of the prosecution witness and, especially, the state’s willingness to allow the witness to plead guilty to a lesser offense in exchange for his testimony. If we were free to apply the standard set out in Gains and Bolton, we would be inclined to affirm appellant’s conviction on the grounds that the particular comment was harmless, considered in the context in which it was made and in view of the other evidence of appellant’s involvement. In reaching this conclusion, we are also influenced by the fact that appellant testified at the trial, and his credibility too was before the jury.


author: PER CURIAM. ANSTEAD, Chief Judge, BERANEK, Judge,

text:
    REINHOLD CONSTRUCTION, INC., Appellant, v. CITY OF VERO BEACH, Florida, Appellee.
    No. 83-1806.
    District Court of Appeal of Florida, Fourth District.
    May 30, 1984.
    Rehearing Denied July 5, 1984.
    Larry Klein, West Palm Beach, and John A. Barley & Associates, P.A., Tallahassee, for appellant.
    Charles P. Vitunac, City Atty., Vero Beach, for appellee.
   PER CURIAM.

AFFIRMED.

LETTS, J., concurs.

ANSTEAD, C.J., concurs specially with opinion.

BERANEK, J., dissents with opinion.

ANSTEAD, Chief Judge,

specially concurring:

I agree that there is competent, substantial evidence in the record to support the trial court’s factual determination that the City acted properly within the authority of its public bidding ordinance in awarding a construction contract to a bidder who submitted a bid slightly higher than that of the appellant.

BERANEK, Judge,

dissenting:

I respectfully dissent. I believe the City Council awarded the public works contract to a contractor other than the lowest responsible bidder for the reason that the successful contractor was a local firm. Hometown location was not one of the criteria listed in the solicitation for bids. Furthermore, it was not one of the criteria to be considered in determining the lowest responsible bidder as set forth in the city ordinance. I would reverse. See Adolphus v. Baskin, 95 Fla. 603, 116 So. 225 (1928).


text:
    Joseph A. WAITE, Appellant, v. Paul HEWITT, Sandra Hewitt and Cecil & Bruce Truck Equipment, Inc., Appellees.
    No. 84-487.
    District Court of Appeal of Florida, Third District.
    June 12, 1984.

      John M. Murrell, Jr., Miami, for appellant.
    Richard B. Marx and William A. Malnick, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the judgment taxing costs, namely, the fees of an accountant appointed by the court as a special master, upon a holding that such costs were taxed against the appellant, Waite, in derogation of his constitutionally guaranteed opportunity to be heard upon proper notice and without the submission of evidence in support thereof. See Neimark v. Abramson, 403 So.2d 1057 (Fla. 3d DCA 1981); Posner v. Flink, 393 So.2d 1140 (Fla.3d DCA 1981).

Reversed and remanded for further proceedings.


author: MILLS, Judge.

text:
    David P. MAGGARD, Appellant, v. SIMPSON MOTORS, and South Carolina Insurance Company, c/o Crawford and Company, Appellees.
    No. AU-55.
    District Court of Appeal of Florida, First District.
    June 12, 1984.
    Thomas R. Mooney and Sherry L. Davis of Meyers & Mooney, P.A., Orlando, for appellant.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.
   MILLS, Judge.

Maggard appeals from an order of the deputy commissioner denying his claim for wage loss benefits. We affirm.

At the hearing on Maggard’s claim, the deputy commissioner received into evidence the deposition of Dr. Frank Field, a board-certified orthopedic surgeon, who began treating Maggard in October 1981. On the issue of whether Maggard had sustained any permanent physical impairment, Dr. Field offered the following opinion:

A. He came in — I thought he reached MMI on 4/14/82. I gave him a five-percent impairment and again I can’t, I can’t use the AMA guide on that. It’s just his chronic pain. It was my assumption that he had aggravated some pre-existing degenerative changes in the middorsal. I gave him a five-percent impairment.
Q. Based on subjective complaints?
A. Yes.

The deputy commissioner denied the claim, finding that Maggard had conducted an inadequate work search and that he had no permanent physical impairment rating in accordance with the AMA Guides to the Evaluation of Permanent Impairment.

On appeal, Maggard concedes that his job search was inadequate, but contends that the testimony of Dr. Field was sufficient to show that he had sustained a permanent physical impairment cognizable under the provisions of Chapter 440. We disagree.

Although we have held that medical testimony on the issue of permanent impairment need not necessarily be based on the AMA Guides, Trindade v. Abbey Road Beef ’N Booze, 443 So.2d 1007 (Fla. 1st DCA 1983), we have not gone so far as to approve a permanent impairment rating based on the claimant’s subjective complaints of chronic pain. We now hold that the existence and degree of permanent physical impairment must be proved by testimony based on the AMA Guides, unless such impairment cannot reasonably be determined under the criteria utilized in the Guides. In such cases, permanent impairment may be proved by testimony based on the Manual for Evaluation of Permanent Physical Impairment of the American Academy of Orthopaedic Surgeons, as authorized by Rule 38F-3.175, Florida Administrative Code, or by testimony based on “other generally accepted medical criteria for determining impairment.” Trindade, supra, at 1012.

AFFIRMED.

SHIVERS and WIGGINTON, JJ., concur.


author: SHIVERS, Judge.

text:
    William G. KENNEDY, Appellant, v. MARCONA OCEAN INDUSTRIES and Wausau Insurance Companies, Appellees.
    No. AU-265.
    District Court of Appeal of Florida, First District.
    June 13, 1984.

      Earle Lee Butler of Butler & Pettit, Fort Lauderdale, for appellant.
    Thomas W. Conroy of Conroy & Sim-berg, Hollywood, for appellees.
   SHIVERS, Judge.

The claimant in this workers’ compensation case appeals the deputy commissioner’s order denying his claim for permanent and total disability benefits and the assessment of penalties on these benefits. We affirm.

Claimant, a right-handed individual, sixty (60) years of age, injured his left arm and shoulder in a compensable accident on January 8, 1979. After two initial surgeries on his shoulder, claimant returned to work in the Bahamas for the employer herein from April of 1979 until February of 1981. The claimant was then transferred to his employer’s office in Fort Lauderdale and continued to work there in an office job until January of 1983 when he was put on “sick leave” for six months. During this latter period of time, claimant underwent two unsuccessful total shoulder replacement operations in June of 1981 and May of 1982, respectively. At the time claimant left his job in January of 1983, he was earning $49,500 a year. Claimant’s salary has increased since returning to work for his employer in 1979.

On February 26, 1983, claimant filed claim for permanent and total disability benefits. At the hearing held on this matter, claimant testified that he has not looked for work since he was put on sick leave in January of 1983. Claimant also testified that the office job in Fort Lauder-dale was created for him by his employer, although he did perform some useful functions in this job. Claimant’s son testified that claimant mows the grass at his house with a power" lawn mower, that claimant cleans up around the house, and, that claimant can drive a car. Additionally, an insurance form filled out by one of claimant’s treating physicians in connection with claimant’s application for long term disability benefits was introduced into evidence. Claimant’s physician checked a box on this form indicating that claimant has severe limitation of functional capacity, incapable of minimal (sedentary) activity (75-100%).

In his order, the deputy found that claimant was not entitled to permanent and total disability benefits, since claimant failed to conduct a work search and claimant was not medically excused from conducting such a work search. We find competent, substantial evidence to support the deputy’s finding that claimant is not entitled to permanent total disability benefits, since we find evidence in the record that claimant is not obviously unable to perform even light work without interruption. See Lancaster Youth Development Ctr. v. Waters, 381 So.2d 1156, 1159 (Fla. 1st DCA 1980). A work search by claimant, therefore, was required. Moreover, we find that claimant’s job with the employer herein was not sheltered employment, and even assuming it was sheltered employment to some extent, such would not preclude a work search under the facts of this case. See University of West Florida v. Nall, 404 So.2d 381 (Fla. 1st DCA 1981).

As to claimant’s contention that he is entitled to penalties on the 60% permanent partial disability benefits awarded, or the permanent total disability that should have been awarded, the record reveals that the deputy’s failure to award penalties was never raised as error within the time available for correction. Section 440.25(4)(a), Florida Statutes (1978 Supp.); Mezquita v. Florida Steel Corp., 419 So.2d 675 (Fla. 1st DCA 1982). Furthermore, penalties under section 440.20(5), Florida Statutes (1978 Supp.), are not applicable to payments of compensation for permanent disability. See Kuhle v. Kirk, 177 So.2d 329 (Fla.1965). Accordingly, the deputy’s order is AFFIRMED in all respects.

MILLS and WIGGINTON, JJ., concur.


author: SMITH, Judge.

text:
    EDGEWOOD BOYS’ RANCH FOUNDATION and New Hampshire Insurance Company, Appellants, v. Kevin ROBINSON, Appellee.
    No. AW-459.
    District Court of Appeal of Florida, First District.
    June 13, 1984.
    Valerie A. Marshall of Haas, Boehm, Brown, Rigdon & Seacrest, P.A., Orlando, for appellants.
    Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   SMITH, Judge.

We have carefully considered the fifteen page transcript of the hearing at which the deputy commissioner ordered the employer/ carrier to furnish a specially-equipped van for the use of claimant, a quadriplegic since his 1975 compensable accident. We affirm the order.

The transcript reveals that the E/C did not oppose the award of the new van, the necessity for which was fully substantiated by claimant’s doctor’s deposition introduced at the hearing and read by the deputy commissioner. We note particularly the deputy commissioner’s statement of the issues, his tentative ruling, and the response of the E/C’s attorney, as follows:

THE COMMISSIONER: [Bjased upon the testimony of Mr. Robinson and having read the deposition of Dr. Menter, ... I am looking at two issues. One is the authorization of a van and the next one is, how much. I am going to authorize the van and I hope I haven’t made the judgment prematurely, if you have some evidence to support your position, Maggie, or some testimony.
MS. SOJOURNER: No. The only question we have regarding the van was whether or not there was any insurance on the prior van and what utilization was made of those monies ....

Essentially, two basic concerns were expressed by the E/C’s counsel at the hearing. The first involved what disposition was made of insurance proceeds, if any, that might have come into the claimant’s hands as the result of the wrecking of the first van furnished to him by the E/C in 1976. This concern was answered by claimant’s attorney’s observation that since the wreck occurred seven years earlier, any funds received had been dissipated in supplying claimant with transportation during that time. Secondly, the E/C’s attorney interposed a hearsay objection to claimant’s attempted introduction into evidence of a written estimate the claimant had obtained from MidContinent Conversion Co., of Kansas City, Missouri (the claimant moved to Merriam, Kansas, after the accident), which contained a list of specifications for a particular model van, and an itemization of costs for the van, its accessories and equipment. The deputy commissioner’s ruling and his comment thereafter indicates that he considered the hearsay objection well taken. However, he further stated that introduction into evidence did not appear to be necessary. Apparently, the deputy commissioner concluded that there was no genuine issue as to the suitability of or cost of the van described in the estimate, and the specifications for the van contained in the order appear to have been copied, verbatim, from the cost estimate.

After the deputy commissioner announced at the hearing that the E/C would be ordered to furnish a new van, the E/C’s attorney continued her general opposition to the use of cost estimate, and argued that the E/C should not be ordered to obtain a van from any particular dealer. The claimant’s attorney offered no objection to the E/C’s obtaining a suitable van at less expense, if it could do so. However, no evidence was submitted by the E/C, and we find that no significant attempt was made through cross-examination of the claimant to determine from the list of accessory items those which were actually required for his use, and those that were not. The claimant testified affirmatively on cross-examination that he was familiar with each and every item required to convert a van for his usage. There were some items on the list that the claimant was not familiar with, and we have noted his testimony that he did not know whether each and every item listed was “necessary for that conversion.” No attempt was made to have the claimant further explain or to identify these questionable items.

The hearing closed with the general understanding that the deputy commissioner would enter an order requiring the E/C to furnish a van which would meet the claimant’s needs, and which would be described in the order. The order actually entered found that a van meeting the description contained in the cost estimate produced by the claimant was necessary for his use, and required the E/C to furnish the van through the MidContinent Conversion Co.

In its brief, the E/C identify some nine accessory items totalling $1,460.47, included in the specifications contained in the deputy commissioner’s order, which they claim are not medically necessary. Even if we were inclined to agree with the E/C’s argument that a lack of necessity with respect to some of these items is apparent from “merely by looking” at the list, we would nevertheless be compelled to affirm the award of the van as specified “for want of a significant contest on [this] issue below.” Chain Store Warehouses v. Picard, 431 So.2d 685, 687 (Fla. 1st DCA 1983). Although we could well be persuaded that some of the items listed (“Chrome Grill, $46.00, for example) do not appear to have any connection with a “medical necessity,” we are also compelled to observe that the entire cost of the specially-equipped van does not on its face seem excessive, especially in the absence of any evidence or contention below to that effect.

Similarly, we affirm the deputy commissioner’s requirement that the van be purchased from MidContinent Conversion Co. Here, the claimant furnished the cost estimate from MidContinent long before the hearing, yet the E/C gave no notice of its rejection of the cost estimate, and apparently did nothing to determine the availability or cost of a suitable van from another dealer. Further, even though the claimant’s attorney indicated no objection to having the van furnished through another dealer, the E/C have yet to demonstrate that they took a single positive step toward accomplishment of this objective. Any error in the deputy commissioner’s failure to allow the E/C to furnish the van through a different dealer, contrary to the tenor of the deputy commissioner’s statements at the hearing, could and should have been brought to the attention of the deputy commissioner during the thirty day period before the order became final pursuant to Section 440.25(4)(a), Florida Statutes (1983). Chain Stores Warehouses v. Picard, supra; Polk County Board of County Commissioners v. Patterson, 433 So.2d 1298 (Fla. 1st DCA 1983); Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981); cf., Suarez v. American Building Maintenance, 412 So.2d 32 (Fla. 1st DCA 1982). Reversal of the award for any of the reasons advanced by the E/C at this late date would only tend to further delay the expenditure of the funds necessary to comply with the order, thus having the effect of rewarding the E/C for their failure to cooperate, pre-hearing, and their failure to provide any information which might have assisted the deputy commissioner in making his final decision, post-hearing.

Accordingly, the order appealed from is AFFIRMED.

JOANOS and ZEHMER, JJ., concur.


author: PER CURIAM. SHARP, Judge,

text:
    Paul K. HOPWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 83-1361.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.
    James B. Gibson, Public Defender and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

Hopwood is attempting to appeal from his criminal conviction and sentence rendered after he entered a plea of no contest. He reserved no basis for appeal and does not argue that there is any exception, as set forth in Robinson v. State, 373 So.2d 898 (Fla.1979), that gives him the right to a direct appeal. Under these circumstances, this court has uniformly dismissed the case for lack of jurisdiction. Stinson v. State, 448 So.2d 1240 (Fla. 5th DCA, 1984). That is what we should do in this case.


author: COBB, Judge.

text:
    T.L., a child, Appellant, v. James S. BYRD, Circuit Court Judge, Ninth Judicial Circuit, Appellee.
    No. 84-440.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.
    Joseph W. DuRocher, Public Defender, Ninth Judicial Circuit, Roger L. Weeden, Asst. Public Defender, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Evelyn Golden, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The petitioner, T.L., a juvenile, was arrested on December 13, 1983, and charged with a delinquent act (burglary of a conveyance). Speedy trial time, therefore, expired on March 12, 1984. An adjudicatory hearing was set for March 1, but continued pursuant to motion by the state. It was reset for March 20, 1984.

On March 12, 1984, the state, perceiving the speedy trial problem, filed a motion for extension of speedy trial. This was granted without hearing by the trial court by order dated March 12, 1984. On March 19, 1984, petitioner moved to vacate the order of extension on the basis that it violated the requirements of Florida Rule of Juvenile Procedure 8.180(d) and section 39.-05(7)(c), Florida Statutes (1983). The trial court denied this motion. Petitioner’s motion to dismiss with prejudice for failure of the state to comply with the juvenile speedy trial rule was also denied. It is the order denying the latter motion that we review here via T.L.’s petition for a writ of prohibition. See M.B. v. Lee, 388 So.2d 1364 (Fla. 5th DCA 1980).

Florida Rule of Juvenile Procedure 8.180(d) and section 39.05(7)(c), Florida Statutes (1981), require a hearing and recitation of reasons for an extension order. The law is clear that an extension order must be predicated upon full compliance with these requirements. J.J.S. v. State, 440 So.2d 465 (Fla. 1st DCA 1983); K.L.H. v. State, 407 So.2d 297 (Fla. 4th DCA 1981). It is equally clear that there was no such compliance in this case. As pointed out in Muller v. State, 387 So.2d 1037, 1039 (Fla. 3d DCA 1980):

In the absence of an order of extension entered by the trial court during the speedy trial period, we will not find that the time was extended, no matter how compelling or exceptional the circumstances may appear.

Here, there was no valid order of extension entered by the trial court during the speedy trial period because it was entered without hearing. Moreover, no compelling or exceptional circumstances appear from this record nor were any reasons for the extension recited at any time by the trial court.

The writ is issued, the trial court is prohibited from trial of the petitioner, T.L., in Orange County Circuit Court Juvenile Case No. 83-3457, Division 5, and the petitioner is discharged from custody in that case.

WRIT GRANTED.

FRANK D. UPCHURCH, and COWART, JJ., concur.


author: BARFIELD, Judge.

text:
    James B. MAJORS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AX-430.
    District Court of Appeal of Florida, First District.
    June 15, 1984.
    James B. Majors, Jr., pro se.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   BARFIELD, Judge.

In this appeal from an order denying post-conviction relief, we hold that the language in the motion,

The prosecution withheld the name and address of a material witness; “The man with the shotgun” who would have testified favorably for the defense and could have verified the defendant’s demeanor as it was that day at the scene of the robbery and alleged conspiracy,

does not substantially comply with the requirements of Rule 3.850(e), Florida Rules of Criminal Procedure.

The other issues raised on appeal are without merit.

AFFIRMED.

SMITH and JOANOS, JJ., concur.


author: DANAHY, Judge.

text:
    FULLER ENTERPRISES, d/b/a Joyce Fuller Interiors, Petitioner, v. Stan MICHAELS and Ida Michaels, Respondents.
    No. 83-1891.
    District Court of Appeal of Florida, Second District.
    June 15, 1984.

      Christopher J. Raleigh, Law Offices of George J. Schriefer, Pinellas Park, for petitioner.
    No appearance for respondents.
   DANAHY, Judge.

The petitioner seeks certiorari review of an order entered by the circuit court in its appellate capacity, affirming a final judgment entered in the county court. For the reasons expressed below, we grant the writ.

The petitioner filed a claim in county court against the respondents. The following sequence of events then occurred:

1. On July 13, 1981, the county court entered a final judgment in favor of the respondents, denying any recovery to the petitioner.
2. The petitioner timely filed a notice of appeal to the circuit court.
3. When the respondents failed to file a brief in the circuit court within the time allowed them, the circuit court issued a notice that if a brief were not filed by the respondents by a certain date, the circuit court would, as a sanction, grant the relief requested by the appellant. The respondents claim that they never received a copy of that notice; in any event, they never filed a brief on the merits in that appellate proceeding.
4. On May 7, 1982, the circuit court entered an order imposing sanctions, in accordance with its prior notice, in the form of a reversal of the judgment of July 13, 1981. In that order the circuit court specifically said, “The relief sought by appellant is justified by the record. Accordingly, the judgment is reversed and this case is remanded with instructions to determine and issue a judgment for appellant on the theory of quantum meruit.”
5. On May 28, 1982, the county court entered a judgment for the petitioner in the amount of $1,500. It appears from the record that the respondents may not have been given an opportunity to participate in the evidentiary hearing before the county court preceding the entry of this judgment.
6. The respondents then filed a motion in the circuit court for leave to apply to the county court to vacate the judgment of May 28, 1982. The circuit court granted the request and the respondents did apply to the county court to vacate that judgment.
7. The county court vacated its judgment of May 28, 1982.
8. The petitioner then filed an appeal in the circuit court from the order vacating the judgment of May 28, 1982. Inexplicably, the circuit court then affirmed the original judgment of the county court in favor of the respondents entered on July 13, 1981. As a ground therefor, the circuit court recited that “the argument presented by appellant is not sufficient to overcome the presumption of correctness with which the findings of the lower court is [sic] clothed.”

No citation of authority is needed to support the proposition that an appellate court may not, having once reversed a final judgment of a lower court, sua sponte review that judgment again fourteen months later and affirm. To do so is a clear departure from the essential requirements of the law and justifies issuing the writ of certiorari requested by the petitioner. Clermont Marine Sales, Inc. v. Harmon, 347 So.2d 839 (Fla. 2d DCA 1977).

The only matter properly before the circuit court was the propriety of the action of the county court in vacating its judgment of May 28, 1982. Accordingly, we grant certiorari, quash the order under review, and remand to the circuit court for consideration of that issue. The petitioner is not precluded from seeking review of the circuit court’s appellate decision when rendered.

BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.


text:
    AUTO ELECTRIC, INC., Appellant, v. Phyllis J. HELTON, Appellee. Tony SIGNORINI, Appellant, v. John F. HELTON, Appellee.
    Nos. 83-2092, 83-2105.
    District Court of Appeal of Florida, Second District.
    June 15, 1984.
    Christopher M. Hunter, Law Office of Robert J. McDermott, Largo, for appellants.
    Norman Bie, Jr., Largo, for appellees.
   PER CURIAM.

Appellants, plaintiffs below, seek reversal of orders dismissing with prejudice their suits for replevin of promissory notes allegedly in possession of the appellees, defendants below.

In their complaints, plaintiffs alleged that the respective defendants lawfully received possession of the promissory notes in question on December 1, 1976, under an oral stock purchase agreement. They further alleged that when, through no fault of their own, a condition subsequent was not performed, they demanded possession of the notes. Plaintiffs asserted that at that time the defendants wrongfully withheld delivery. Prior to trial the court dismissed the causes of action on the basis that the statute of limitations barred the plaintiffs’ claims.

The statute of limitations for recovery of specific personal property is four years. § 95.11(3)(i), Fla.Stat.(1981). However, the statute does not begin to run until the last element constituting a cause of action occurs. § 95.031(1). At the time of dismissal, nothing in the pleadings indicated the date when defendants’ possession became wrongful. Consequently, the trial court erred in dismissing the plaintiffs’ actions without having evidence before it to determine the date when the statute commenced running.

Reversed and remanded with instructions to reinstate both cases.

SCHEB, A.C.J., and DANAHY and CAMPBELL, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Sharon M. NIBLACK, Appellant, v. STATE of Florida, Appellee.
    No. 83-1268.
    District Court of Appeal of Florida, Second District.
    June 20, 1984.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant Sharon M. Niblack contends that the trial court erred in failing to provide a complete reinstruction on manslaughter during her jury trial for murder in the second degree. We agree and, therefore, reverse and remand for a new trial.

The record reflects that the jury interrupted its deliberations to request “clarification of the difference between second-degree murder and manslaughter.” The trial judge, who initially had instructed on second degree murder, manslaughter under section 782.11, and justifiable homicide, repeated his instruction on second degree murder and manslaughter but did not rein-struct on justifiable homicide. Defense counsel raised a timely objection to the omission of “any explanation of justification, any explanation of defense.”

As the supreme court’s holding in Hedges v. State, 172 So.2d 824 (Fla.1965), makes clear, the trial court must instruct on justifiable and excusable homicide in order to provide a complete definition of manslaughter, which is a residual offense. See § 782.07, Fla.Stat. (1981); Cobb v. State, 376 So.2d 230, 231 (Fla.1979) (homicide committed while resisting another’s unlawful act is punishable under section 782.11 only if not excusable or not justifiable). Under this court’s holding in Pouk v. State, 359 So.2d 929, 930 (Fla.2d DCA 1978), both instructions must be given “even where there is no evidence to support a finding of justifiable or excusable homicide because manslaughter cannot be adequately defined without such an instruction.” Accord Delaford v. State, 449 So.2d 983 (Fla. 2d DCA 1984).

In the instant case, appellant objected to the trial court’s failure to reinstruct on justifiable homicide; thus, this issue has been preserved for appellate review. See Castor v. State, 365 So.2d 701, 704 (Fla. 1978) (timely and explicit objection necessary to preserve alleged reinstruction error for appellate review). Accordingly, we reverse Niblack’s conviction for second degree murder on this basis and remand for a new trial.

Appellant has not provided us with a transcript of the charge conference, and, consequently, we cannot determine why the trial court did not instruct on excusable homicide in even its initial manslaughter instruction. Defense counsel’s limited objection to the court’s reinstruction suggests, however, that counsel acquiesced in the omission. In any event, appellant raises no complaint concerning the initial instruction, and we feel confident that a complete manslaughter instruction will be given upon retrial.

For purposes of retrial, we note that appellant’s contention concerning the inadmissibility of Michelle Mobley’s testimony, in its present posture, is well taken. We trust that the state will follow the applicable rules of evidence before attempting to introduce Ms. Mobley’s testimony again.

We have considered appellant’s remaining point on appeal and have found it to be without merit.

REVERSED and REMANDED for proceedings consistent with this opinion.

GRIMES and CAMPBELL, JJ., concur.