author: WOLFMAN, S., Associate Judge.

text:
    PROGRESSIVE AMERICAN INSURANCE COMPANY, a Florida corporation, Appellant, v. FLORIDA BANK AT DAYTONA BEACH, a Florida corporation, Appellee.
    No. 83-913.
    District Court of Appeal of Florida, Fifth District.
    May 10, 1984.
    Rehearing Denied June 18, 1984.

      George L. Winslow, Jr., of Wright, Ful-ford & Winslow, Orlando, for appellant.
    Theodore F. Zentner of Becks, Becks & Wickersham, Daytona Beach, for appellee.
   WOLFMAN, S., Associate Judge.

This is an appeal from a final judgment in favor of Florida Bank at Daytona Beach (“Bank”) against Progressive American Insurance Company (“Progressive”), establishing Progressive’s liability to the Bank on a loss claim.

On May 11, 1981, one Arthur Eldridge purchased a 1981 Chevrolet Corvette automobile from Higginbotham Chevrolet. The Bank lent Eldridge the funds to purchase the automobile, thereby becoming a lien-holder, and issued its draft to Higgin-botham Chevrolet. Eldridge procured insurance from Progressive. The policy included a loss payable clause, which provides in relevant part:

Loss or damage, if any, under the policy shall be payable as interest may appear to ... Bank and this insurance as to the interest of the ... Lienholder ... shall not be invalidated by any act or neglect of the ... Owner ..., provided, however, that the conversion, embezzlement or secretion by the ... Debtor in possession of the property insured ... is not covered under such policy, unless specifically insured against and premium paid therefore; and provided, also, that in case the ... Owner ... shall neglect to pay any premium due under such policy, the Lien-holder shall on demand pay the same. Provided also, that the Lienholder shall notify the company of any change of ownership or increase of hazard which shall come to the knowledge of said Lien-holder and, unless permitted by such policy, it shall be noted thereon and the Lienholder shall on demand, pay the premium for such increased hazard ...; otherwise such policy shall be null and void

On June 21, 1981, Eldridge reported the Corvette stolen. In September Progressive issued a draft to the Bank and Eldridge in payment of the theft claim; however, based upon information that Eldridge was involved in the theft, Progressive stopped payment on the draft. Thereafter, the Bank filed a complaint against Progressive for a Declaratory Judgment seeking its entitlement to recover under the loss payable clause of the policy. By affirmative defense, Progressive alleged Eldridge “did by unlawful means convert, embezzle or secrete” the vehicle, thereby voiding any loss coverage under the policy.

In summary, the trial court found (1) Eldridge had converted, embezzled or secreted the vehicle; (2) the Bank was not to any extent involved in the conversion, embezzlement or secretion of the automobile; and (3) the Bank as co-loss payee was entitled to recover against Progressive under the terms of the loss payable clause regardless of the conversion, embezzlement or secretion of the insured vehicle by the owner. Progressive appeals on the basis that the loss payable clause was invalidated by Eldridge’s conversion, embezzlement or secretion of the vehicle.

A loss payable clause is one method by which a lienholder or mortgagee protects its property interest. Generally, two types of loss payable clauses exist and are often referred to as (1) an open loss payable clause, and (2) a union, standard or New York clause. Under the open loss payable clause, the lienholder/mortgagee stands in the owner/mortgagor’s place, and is usually subject to the same defenses as may be used against the owner/mortgagor. The open loss payable clause does not create a new contract between the lienholder/mortgagee and the insurer, nor does it abrogate any condition of the policy. The union, standard or New York clause provides that the owner/mortgagor’s acts or neglect will not invalidate the insurance provided that if the owner/mortgagor fails to pay premiums due, the lienholder/mort-gagee shall on demand pay the premiums. In return for incurring premium liability, the lienholder/mortgagee is freed from the policy defenses which the insured might have against the owner/mortgagor. The union, standard or New York loss payable clause is then an agreement between the lienholder/mortgagee and the insurer independent of the policy contract between the owner/mortgagor and the insurer. J.A. Appleman, Insurance Law and Practice, Vol. 5A, § 3401 (1970); Glens Falls Insurance Co. v. Porter, 44 Fla. 568, 33 So. 473 (1902); Bank of Commerce v. Occidental Fire & Casualty Co., 264 So.2d 101 (Fla. 4th DCA 1972); Southern Ins. Co. v. First National Bank at Orlando, 237 So.2d 302 (Fla. 4th DCA 1970).

The loss payable clause in the instant case is neither an open nor a standard loss payable clause; rather, it is a hybrid clause. Although the clause provides that the insurance shall not be invalidated by any act or neglect of the owner/mortgagor and the lienholder/mortgagee is to pay the premiums upon the owner/mortgagor’s default, it also establishes several instances where coverage would not exist, to-wit: (1) conversion, embezzlement or secretion by the owner/mortgagor unless specifically insured against and a premium paid; (2) nonpayment of insurance by owner or lienholder; and (3) the lienholder, after notifying the insurer of a change of ownership or an increase in hazard, fails to pay the increased premium after insurer’s demand.

In National Casualty Co. v. General Motors Acceptance Corp., 161 So.2d 848 (Fla. 1st DCA 1964), a loss payable clause identical to the one in the instant case was involved. The lienholder brought an action against the insurance company for damages to an insured’s automobile resulting from the owner’s intentional act of driving the vehicle off a bridge into the water. The parties had stipulated that the owner’s intention was to cover up his disappearance by creating the impression that he had been in an accident. The insurance company argued that it was not liable because the owner’s conduct constituted “conversion.” The court found that the owner's acts had no bearing on the lienholder’s interest and further the owner’s actions were not criminal in the sense contemplated by the clause. The court stated:

The words “embezzlement or secretion” as used in said provision, suggest crimes falling within the general category of theft or larceny, the difference being that the original possession was obtained by lawful means. We are satisfied that the defendant insurer, in using the word “conversion” in connection with the words “embezzlement and secretion” had reference to conversion in the criminal sense rather than as a tort.

Id. at 852. Basically, there was nothing to indicate that the owner intended to convert the subject automobile.

In the instant case, the Bank did not take the position that Eldridge had not converted or embezzled within the meaning of the loss payable clause, or that the owner did not possess a criminal intent. To the contrary, the Bank contends that Eldridge converted, embezzled or secreted the vehicle and did so with a criminal intent and yet, it is still entitled to collect for the loss.

It is fundamental that where there are ambiguous, equivocal or uncertain terms in an insurance policy, those terms are to be interpreted liberally in the insured’s favor; however, plain and unambiguous language requires no interpretation and should be given its popular and usual significance absent public policy reasons to the contrary. Rigel v. National Casualty Co., 76 So.2d 285 (Fla.1954); Howard v. American Service Mutual Ins. Co., 151 So.2d 682 (Fla. 3d DCA 1963), cert. dismissed, 162 So.2d 666 (Fla.1964). The loss payable clause in the instant case is not ambiguous and, while it contains exclusions, it should not be considered a provision tending to limit or avoid liability. The Bank had the clear opportunity to either require Eldridge to obtain a pure union or standard loss'payable clause or to pay the additional premium for the added coverage.

Based on the foregoing, it is our conclusion that the Bank’s recovery against Progressive was in error. It follows then that the award of attorney’s fees to the Bank pursuant to section 627.428(1), Florida Statutes (1981), was improper.

The Final Judgment and award of attorney’s fees is accordingly REVERSED.

SHARP and COWART, JJ., concur.

      . The clause in its entirety provides:
      Loss or damage, if any, under the policy shall be payable as interest may appear to Florida National Bank 130 N. Ridgewood Avenue, Daytona Beach, FL 32015, and this insurance as to the interest of the Bailment Lessor, Conditional Vendor, Mortgagee or other, secured party or Assignee of Bailment Lessor, Conditional Vendor, Mortgagee or other secured party (herein called the Lienholder) shall not be invalidated by any act or neglect of the Lessee, Mortgagor, Owner of the within described automobile or other Debtor nor by any change in the title or ownership of the property; provided, however, that the conversion, embezzlement or secretion by the Lessee, Mortgagor, Purchaser or other Debtor in possession of the property insured under a bailment lease, conditional sale, mortgage or other security agreement is not covered under such policy, unless specifically insured against and premium paid therefor; and provided, also, that in case the Lessee, Mortgagor, Owner or other Debtor shall neglect to pay any premium due under such policy the Lien-holder shall, on demand, pay the same.
      Provided also, that the Lienholder shall notify the company of any change of ownership or increase of hazard which shall come to the knowledge of said Lienholder and, unless permitted by such policy, it shall be noted thereon and the Lienholder shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise such policy shall be null and void.
      The company reserves the right to cancel such policy at any time as provided by its terms, but in such case the company shall notify the Lienholder when not less than ten days thereafter such cancellation shall be effective as to the interest of said Lienholder therein and the company shall have the right, on like notice, to cancel this agreement.
      If the insured fails to render proof of loss within the time granted in the policy conditions, such Lienholder shall do so within sixty days thereafter, in form and manner as provided by the policy, and further, shall be subject to the provisions of the policy relating to appraisal and time of payment and of bringing suit.
      Whenever the company shall pay the Lien-holder any sum for loss or damage under such policy and shall claim that, as to the Lessee, Mortgagor, Owner or other Debtor, no liability therefor existed, the company shall, to the extent of sucji payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities held as collateral to the debt, or may at its option, pay to the Lienholder the whole principal due or to grow due on the mortgage or other security agreement with interest, shall thereupon receive a full assignment and transfer of the mortgage or other security agreement and of all such other securities; but no subrogation shall impair the right of the Lienholder to recover the full amount of its claim.
      Whenever a payment of any nature becomes due under the policy, separate payment may be made to each party at interest provided the company protects the equity of all parties.


source: Caselaw Access Project

author: RYDER, Acting Chief Judge.

license: Public Domain

text:
    SAFECO TITLE INSURANCE COMPANY, a foreign corporation, Appellant, v. Charles E. REYNOLDS and Marguerite E. Reynolds, his wife, Appellees.
    No. 83-1517.
    District Court of Appeal of Florida, Second District.
    May 11, 1984.
    Rehearing Denied June 21, 1984.

      Stephen D. Hughes, Largo, for appellant.
    William H. Walker, St. Petersburg, for appellees.
   RYDER, Acting Chief Judge.

Safeco Title Insurance Company (hereinafter Safeco), the insurer and defendant below, appeals the amended final judgment which denied its alternative motions for a new trial or remittitur; confirmed the jury verdict of $50,000.00 in damages as to the breach of title insurance contract claim; and granted the Reynolds, the insureds and plaintiffs below, attorney’s fees and costs in the respective amounts of $20,000.00 and $5,854.00. The Reynolds cross-appeal those portions of the same judgment which denied their motion for new trial as to their negligence claim and approved that part of the jury verdict which found negligence but did not award them any damages as to that cause of action.

The only issues which merit extended discussion concern the propriety of the jury’s damages awards. Upon examination of the record and the applicable law, we agree the trial court erred in not granting Safeco’s motion for remittitur and the Reynolds’ motion for a new trial.

In their original complaint, the Reynolds sought to recover damages they allegedly suffered due to Safeco’s failure to disclose the existence of a duly recorded easement and reciprocal parking agreement which they alleged had a “substantial negative effect upon the market value” of their property. (Emphasis supplied). In an amended complaint filed by the Reynolds, they added a second count to their action which alleged they had “suffered business and commercial losses, including without limitation, the past, present and future loss of income and diminished the value of plaintiffs’ investment, together with general damages” as the proximate result of Safeeo’s negligence in failing to make the required disclosures.

During the jury trial, the Reynolds’ expert statistician testified that seven of the Reynolds’ parking spaces were lost as a result of the reciprocal parking agreement, and the Reynolds’ expert real estate appraiser testified that the loss of seven parking spaces reduced the market value of the affected property by $24,000.00. Safeco’s expert appraiser testified that there was no reduction in the market value of the property because of the reciprocal parking agreement. Additionally, the Reynolds’ expert statistician testified, partially relying on the properly admitted net income information testified to by an expert accountant, that Reynolds had suffered a loss of $14,-289.00 in profits as a result of the encumbrances and would suffer a future loss, discounted back to its net present value of $43,862.00, for a total income loss of $57,-651.00. Safeco presented its own expert accountant who testified to some extent that the Reynolds did not suffer any lost profits as a result of the existence of the encumbrances. Thereafter, as stated previously, the jury found for the Reynolds as to their title insurance policy claim and established “the loss in market value of the plaintiffs’ real property caused by the existence of the encumbrances to be in the sum of $50,000.00;” the jury then also found for the Reynolds as to their negligence claim but determined “the plaintiffs’ losses and damages to their business legally caused by the defendant’s negligence to be in the sum of $0 dollars.”

In the appeal, Safeco argues remittitur should have been granted because the measure of damages applicable where an insured owner suffers a loss as a result of encumbrances not disclosed by the title insurer is the difference between the market value of the property without the burden and its market value with the encumbrance, and the evidence presented by the Reynolds as to this amount of damages, even if accepted completely by the jury, only proved at most a $24,000.00 diminution in market value.

It is a well-settled and fundamental rule that “an insured [owner or mortgagee] is entitled to recover the actual loss or damage sustained from a defect, lien or encumbrance affecting his title which was not excepted from the policy’s coverage.” 1 Fla.Jur.2d Abstracts and Title Insurance § 39 (1977). See generally Annot., 60 A.L.R.2d 972, 975 (1958). There are two basic measurements for determining an insured owner’s actual partial loss because of an encumbrance or encroachment not disclosed, with their particular application dependent upon the nature of the undisclosed burden and whether that burden can be removed: (1) diminution in market value (as stated above), and (2) the amount necessary to remove the existing encumbrance. See generally 15A Couch on Insurance 2d § 57:184 (rev. ed. 1983). (Compare cases cited at footnote 4 with cases cited at' footnote 5); 60 A.L.R.2d at 975; 46 C.J.S. Insurance § 1402 (1936); 44 Am.Jur.2d Insurance § 1566 (1982). The Reynolds chose to pursue the loss of market value as general damages in their contract action, see Guarantee Abstract & Title Insurance Co. v. St. Paul Fire and Marine Insurance Co., 216 So.2d 255 (Fla. 2d DCA 1968); accordingly, they had the burden of establishing the amount of this particular loss. Florida Homes Insurance Co. v. Braverman, 163 So.2d 512 (Fla. 3d DCA 1964).

Our examination of the record reveals the Reynolds’ expert only testified that the property in question was reduced in value $24,000.00 because of the undisclosed reciprocal parking agreement. The jury was not at liberty to tack onto this figure an additional $26,000.00 in market value losses when there is no “evidence in the record which may be pointed out as constituting a reasonable foundation for the conclusion reached.” Golden v. Morris, 55 So.2d 714 (Fla.1951). Moreover, although an insured owner may be able to recover consequential or special damages such as lost profits as damages for breach of a title insurance contract, Couch § 57:175; see generally Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936); Talisman Sugar Corp. v. Farmland Development Co., 156 So.2d 392 (Fla. 2d DCA 1963), the Reynolds were not entitled to the additional $26,000.00 award as lost profits because they did not plead for such special damages in their breach of title insurance contract claim. Fla.R.Civ.P. 1.120; J. Ray Arnold Lumber Corp. v. Richardson, 105 Fla. 204, 141 So. 133 (1932); Ephrem v. Phillips, 99 So.2d 257 (Fla. 1st DCA 1957), cert. denied, 101 So.2d 816 (Fla.1958). Accordingly, because it appears from all the evidence presented at trial that the damages awarded by the jury on the first count are “grossly excessive,” we grant a remittitur for the amount of the elearly definable excess of $26,000.00 but affirm the jury award for the balance of $24,000.00 E.g., Aylesworth v. London, 119 So.2d 816 (Fla. 2d DCA 1960). See also Renuart Lumber Yards, Inc. v. Levine, 49 So.2d 97 (Fla.1950).

As to the cross-appeal, the Reynolds argue a new trial should have been granted as to the negligence claim because the jury verdict which found no damages was clearly contrary to the weight of the evidence presented at trial. As an initial point, we note this court has recognized that an insured owner under a title insurance policy may sue his insurer in negligence for failing to advise him, according to the duties set out in the policy, of the existence of a properly recorded encumbrance affecting property covered by the policy. Harvey v. J & H Holdings, Inc., 310 So.2d 371 (Fla. 2d DCA 1975). See generally 60 A.L.R.2d at 1000. Recognition of such a cause of action is consistent with the long-established general principle that injuries caused by the allegedly negligent performance of a contractual duty may be redressed through a tort action. Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932).

In addition to the recovery of general damages naturally resulting from a breach of the contractual duty, Western Union Telegraph Co. v. Merritt, 55 Fla. 462, 46 So. 1024 (1908); Williams v. Atlantic Coast Line Railroad Co., 56 Fla. 735, 48 So. 209 (1908), a plaintiff may also be able to recover special damages such as lost profits in cases of tort arising from a contractual setting. Florida East Coast Railroad Co. v. Peters, 72 Fla. 311, 73 So. 151 (1916); Krohne v. Orlando Farming Corp., 102 So.2d 399 (Fla. 2d DCA 1958). Damages for torts arising out of contracts are governed by the same rules as in the case of contract actions. Peters. However, it is clear that a plaintiff who proves both a breach of contract and a breach of duty of care (negligence) owed pursuant to the same contract is entitled to only one recovery for each type of damages (general and special) pled and proven. Therefore, although the Reynolds would not be entitled to a second award for loss of market value as a result of Safeco’s negligence, they would be entitled to‘ recover lost profits as a result of Safeco’s negligence if those specially pled consequential damages were sufficiently proven to the jury. Twyman; Krohne.

With these basic principles in mind, we believe that the Reynolds are entitled to a new trial on damages as to their negligence claim because they presented a substantial amount of evidence with regard to lost profits, and the jury clearly intended for the Reynolds to recover more than $24,-000.00 in money damages as evidenced by the jury’s awarding of an additional $26,-000.00 in damages on the breach of insurance policy contract claim. In any event, a jury of reasonable persons could not have returned the zero verdict. Griffis v. Hill, 230 So.2d 143 (Fla.1970); Parris v. Gavagan, 271 So.2d 816, 817 (Fla. 2d DCA 1973).

As a final point, we vacate the particular awards of attorney’s fees and costs in favor of appellees in view of our holdings herein. However, we do not reverse appel-lees’ entitlement to such fees and costs pursuant to section 627.428(1), Florida Statutes (1981); we merely direct the trial court to re-examine and readdress, after the new trial on damages (negligence verdict) is concluded, the amount of fees and costs to be ultimately awarded to appellees. We note that such awards may include attorney’s fees and costs incurred in the original proceeding as well as the proceedings on remand. § 627.428(1).

Accordingly, we affirm the jury’s affirmative findings of breach of contract and negligence, instruct the trial court to grant the remittitur on the breach of contract verdict, direct the trial court to hold a new trial as to damages on the negligence verdict and then readdress the awarding of attorney’s fees and costs.

AFFIRMED in part and REVERSED in part with directions.

DANAHY and LEHAN, JJ., concur.

      .Safeco does not contend on appeal that it did not fail to disclose the two encumbrances; furthermore, there was substantial competent evidence below to support the jury's findings of breach of contract and negligence. On another point, we find the trial court did not commit error in admitting into evidence the parking survey conducted by Mrs. Reynolds and relied upon by the Reynolds’ experts in formulating their opinions. Lee County Electric Cooperative, Inc. v. Lowe, 344 So.2d 308 (Fla. 2d DCA 1977), appeal after remand, 367 So.2d 1114 (Fla. 2d DCA 1979).

      . The properly recorded agreement between the Reynolds’ predecessor in interest and the owners of the adjoining property created a common driveway for the purposes of ingress and egress between their adjoining rear lots wherein each property owner granted to the other an easement in a 12 ½ foot strip of land along each party’s rear boundary.

      . The reciprocal parking agreement was recorded as an addendum to the original agreement, and in this agreement each party granted to the other, including assignees, "full parking privileges in those premises [rear lots] designated in the original agreement.”

      . A third but not widely-recognized measurement involves making a distinction between rural land and urban land used for commercial purposes by fixing the damages to the latter type of property at the value of urban land subject to the easement plus indemnity for loss of use. See Couch § 57:184; 60 A.L.R.2d at 978. We express no opinion on the propriety of employing this method of determining damages.

      . Lost 'profits are considered special damages. Arcade Steam Laundry v. Bass, 159 So.2d 915 (Fla. 2d DCA 1964).


author: SCHEB, Judge.

text:
    CROWN MANAGEMENT CORPORATION, now known as Crown Pontiac, Inc., a Delaware corporation; Royal Trust Bank of Florida, N.A., formerly known as Century First National Bank of St. Petersburg and as The First National Bank of St. Petersburg, a national banking corporation, Appellants, v. Marvin J. GOODMAN and Lucille Goodman, his wife, Mark R. McGarry and Norma Jean McGarry, his wife, Joseph L. Goodman, Charles O. Lowe, C. Eugene Lowe and Cassandra D. Lowe, his wife, Katherine Suzanne Lowe, Francis M. Wells, Jr., and Judith L. Wells, his wife, Appellees.
    Nos. 83-2035, 83-2098.
    District Court of Appeal of Florida, Second District.
    May 11, 1984.
    Rehearing Denied June 15, 1984.

      Richard T. Earle, Jr., of Earle & Earle, St. Petersburg, Joseph W. Letzer of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., for Crown Management Corp.
    Zala L. Forizs of Blasingame, Forizs & Smiljanich, St. Petersburg, for Royal Trust Bank of Florida, N.A.
    H. Rex Owen, Bruce Crawford of Owen & McCrory, St. Petersburg, for appellees.
   SCHEB, Judge.

This appeal centers on the necessity of the court receiving parol evidence in interpreting a rent escalation clause in a commercial lease. The trial court found that two sentences in the clause created an ambiguity. Appellants contend the court erred, however, when it declined to consider parol evidence of the parties’ intent as to the correct interpretation. We think the appellants’ argument on this point is correct.

On October 9, 1969, appellant Crown Management Corporation entered into a 99-year lease with appellees as lessors. The lease provided in paragraph 5 that the rental payments

shall be adjusted and escalated and increased or decreased and, commencing with the first five year period and thereafter on each succeeding one year period the Lessee agrees to pay to the Lessor, ... an additional sum determined by multiplying the rental payments set forth in the Lease or established by the latest review ... by the percentage increase, if any, in the level of the Official Consumer Price Index .... Each one point increase in the index shall represent a one percent increase in the lease rentals on the then current rental basis for that period and each one point decrease in the index shall represent a one percent decrease from the then current rental base for that period.

(Emphasis added.)

Crown made the lease payments as calculated by the lessors, but in March 1982 its accountants discovered the lessors had computed rental increases based on each index point as opposed to a percentage increase in the Consumer Price Index (CPI). Thereafter Crown made its rental payments under protest. Crown’s accountants determined that as a result of computing the rental on this basis, that from October 15, 1969, to October 15, 1983, Crown made an overpayment of $111,619.08.

In February 1983 Crown filed suit seeking a declaratory judgment as to the interpretation of the rent escalation clause, an accounting, and a judgment for rent overcharges paid, plus interest. Appellees, the lessors, counterclaimed for a declaration of rights and for collection of past due rent and attorney’s fees.

After hearing testimony concerning the negotiations for the lease, the court determined that there was no fraud, overreaching, or other untoward action by any of the parties. Moreover, the court noted there was no evidence of mutual mistake by the parties, all of whom were experienced business people. Referring to paragraph 5 of the lease, the court found:

There is a patent ambiguity and conflict between the first and second sentences. The first sentence clearly states that the rental is to be increased “by the PERCENTAGE INCREASE, if any, in the —CPI”, while the second sentence clearly states that the rental is to be increased one percent for each one point rise in the CPI which, except in the base year of the CPI, would always result in an increase in rental higher than the percentage increase in the CPI.

Having determined that the conflict between the first and second sentences was a patent one, the court, on reflection, concluded that much of the testimony presented at trial should not have been admitted. Furthermore, the court determined that the first and second sentences could be reconciled “only if the second sentence is construed as the practical application of the general principle set forth in the first sentence, even though that practical application is contrary to what the economists and legislators who prepare and authorize the CPI intend it to show.” Accordingly, the trial judge entered a final judgment declaring that the lessors’ determination of rentals computed in accordance with the second sentence of paragraph 5 was correct, and denying Crown relief. Crown filed a timely notice of appeal.

The parties agree that any adjustment to rental payments can be computed under the formula set out in the first sentence by reference to the CPI, but there is considerable disagreement as to the effect of the second sentence. While appellants agree that the two sentences create an ambiguity, they argue that the court erred in failing to resolve the conflict without benefit of parol evidence. Furthermore, they urge that the court erred in refusing to consider testimony concerning the potential economic effect of the lessors’ interpretation of the escalation clause.

We think the trial court correctly found that the first and second sentences, which are repugnant, created an ambiguity. However, we think the court erred in deciding to disregard evidence bearing on the intent of the parties on the ground that the ambiguity was patent.

Historically, ambiguities have been distinguished as either latent or patent. This distinction has served as a basis for determining whether or not to hear parol evidence. However, the necessity of considering parol evidence in interpreting ambiguities in contracts is well recognized. Friedman v. Virginia Metal Products Corp., 56 So.2d 515 (Fla.1952). The rule differentiating latent and patent ambiguities in respect to admitting parol evidence has been criticized and even discarded in a number of jurisdictions. See 30 Am.Jur.2d Evidence § 1073 (1967). Still, as we pointed out in 1976, Florida courts have adhered to the distinction and ordinarily allow parol evidence where there is a latent ambiguity and reject it where there is a patent one. Landis v. Mears, 329 So.2d 323 (Fla. 2d DCA 1976). Only recently, one of our sister courts has indicated its dissatisfaction with this distinction:

Although there appears to be some divergence of opinion as to when parol evidence is properly admitted because of the latent ambiguity — patent ambiguity dichotomy, the distinction between the type of ambiguity involved is one of form over substance. The growing and better reasoned trend of authority indicates that the introduction of parol evidence to probe the true intent of the parties is proper, irrespective of any technical classification of the type of ambiguity present.

Royal Continental Hotels, Inc. v. Broward Vending, Inc., 404 So.2d 782, 784 (Fla. 4th DCA 1981). We tend to agree with the Fourth District’s comments, but we must adhere to the distinction inasmuch as the rule is still in existence. See First Guaranty Corp. v. Palmer Bank and Trust Co., 405 So.2d 186 (Fla. 2d DCA 1981).

We have considerable difficulty in perceiving the difference between patent and latent ambiguities. It appears that a patent ambiguity is that which appears on the face of the instrument and arises from the use of defective, obscure, or insensible language. Drisdom v. Guarantee Trust Life Insurance Co., 371 So.2d 690 (Fla. 3d DCA 1979). Extrinsic evidence is inadmissible if the ambiguity is patent, because such evidence would, in effect, allow the court to rewrite the contract for the parties by supplying information the parties themselves did not choose to include. Hunt v. First National Bank, 381 So.2d 1194, 1196 n. 1 (Fla. 2d DCA 1980); Landis v. Mears. A latent ambiguity, on the other hand, is said to exist where a contract fails to specify the rights or duties of the parties in certain situations and extrinsic evidence is necessary for interpretation or a choice between two possible meanings. Bunnell Medical Clinic, P.A. v. Barrera, 419 So.2d 681 (Fla. 5th DCA 1982); Hunt. In such instance, this evidence is required because the instrument itself does not provide sufficient insight into the intent of the parties. Morton v. Morton, 307 So.2d 835 (Fla. 2d DCA), cert.denied, 324 So.2d 90 (Fla. 1975).

Any ambiguity in the present case is latent. There is no ambiguity arising from any obscure or insensible language of the lease, but rather, the ambiguity arises from the failure to specify which sentence in paragraph 5 controls in determining rent increases.

While we accept appellants’ argument that parol evidence is admissible in this case, we reject their further contention that the court erred in refusing to consider expert testimony on the effect of possible inflationary rates on the amount of future lease rentals. Here, there was no issue presented or testimony introduced as to unconscionability or unreasonableness of the rent as related to the value of the leasehold interest. Appellants’ reliance on Seaboard Coastline Railroad v. Garrison, 336 So.2d 423 (Fla. 2d DCA 1976), is misplaced. Garrison is simply authority for the factfinder to consider the effects of inflation when making an award for a cognizable loss.

Accordingly, we affirm the trial court’s determination that there is an ambiguity resulting from the conflict between the first and second sentences of paragraph 5 of the lease. However, we vacate the court’s judgment and remand for further proceedings. The trial court shall consider the evidence previously received and may hear any additional evidence bearing on the intent of the parties as to the correct interpretation of paragraph 5. Unless the trial court shall permit amendments to the pleadings, it is unnecessary for the court to receive evidence concerning the economic effects of any projected inflationary increases in rent.

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


author: PER CURIAM.

text:
    John T. CARLON, Jr., Appellant, v. SOUTHEAST SERVICES, INC., Appellee.
    No. 83-2214.
    District Court of Appeal of Florida, Third District.
    May 15, 1984.
    Rehearing Denied June 19, 1984.
    John T. Carlon, Jr., in pro. per.
    Britton, Cohen, Cassel, Kaufman & Sehantz and J. Robert Olian, Miami, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Fla.R.Civ.P. 1.510(c); Hardcastle v. Mobley, 143 So.2d 715, 717 (Fla. 3d DCA 1962).


text:
    D.V. McCONNOHIE and Bendon Investment Company, Inc., Appellants, v. HICKORY LAKES OF BRANDON, INC. and Housing Investment Corporation of Florida, Appellees.
    No. 83-841.
    District Court of Appeal of Florida, Second District.
    May 18, 1984.
    Rehearings Denied June 21, 1984.
    Robert Goldhagen, P.A., Tampa, for appellants.
    Lewis M. Kanner of Williams, Salomon, Kanner & Damian, Miami, for appellees.
   PER CURIAM.

Appellants D.V. McConnohie and Bendon Investment Company, Inc., appeal the summary judgment entered as to count 1 of their cross-claim and third-party complaint in favor of appellees Hickory Lakes of Brandon, Inc., and Housing Investment Corporation of Florida. We reverse.

Upon review of the record in a light most favorable to the nonmoving parties, we hold that a genuine issue as to a material fact exists with respect to whether appel-lees exercised reasonable and due diligence to close the transaction and deliver title to the real property involved herein to the appellants as provided in the written contract. Rule 1.510(c), Fla.R.Civ.P.; Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Accordingly, we reverse the summary judgment entered against appellants, and we remand for proceedings consistent herewith.

REVERSED and REMANDED.

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


text:
    Francisco DEL RISCO and Mirta R. Del Risco, Appellants, v. JEM CONSTRUCTION CORPORATION, Kent Insurance Company and Vedado Development Corporation and Hartford Accident & Indemnity Company, Appellees.
    No. 83-1037.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied July 9, 1984.
    Walton, Lantaff, Schroeder & Carson and Kathleen M. O’Connor and George Chesrow, Miami, for appellants.
    Underwood, Gillis, Karcher & Valle; Rick Wingate, Kathleen V. McCarthy; Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We affirm the granting of the defendants’ motions for summary judgment by the trial court upon a holding that the plaintiffs injury was proximately caused by the unforeseeable intervening actions of a third party and the plaintiff. These intervening causes led to the highly unusual event which resulted in the plaintiff’s injury. See Stahl v. Metropolitan Dade County, 438 So.2d 14 (Fla. 3d DCA 1983); Fellows v. Citizens Federal Savings & Loan Association of St. Lucie County, 383 So.2d 1140 (Fla. 4th DCA 1980); Pope v. Cruise Boat Co., Inc., 380 So.2d 1151 (Fla. 3d DCA 1980); see also Gibson v. Avis Rent-A-Car System, Inc., 386 So.2d 520 (Fla.1980) (when some separate force or action is the intervening cause of the damages suffered by another a negligent person is not liable). We therefore do not reach the issue of the liability of the adjacent landowner or his agents.

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    Alberto ARAUJO, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1189.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied July 10, 1984.

      Joseph Beeler, Miami, and Holly R. Skol-nick, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   DANIEL S. PEARSON, Judge.

The defendant appeals his convictions for trafficking in and unlawful sale of marijuana. Although we find that the evidence against the defendant was sufficient to sustain the convictions, it is hardly of such persuasive force to render harmless the prosecutor’s closing argument comment on the defendant’s failure to call a certain witness to corroborate the defendant’s exculpatory explanation of his presence and actions at the time when and place where the marijuana was seized by the police. Accordingly, we reverse the convictions and remand the cause for a new trial.

The applicable law is clear. An inference adverse to the defendant for his failure to call witnesses is not permitted unless “it is shown that the witnesses are peculiarly within the defendant’s power to produce and the testimony of the witnesses would elucidate the transaction, that is, that the witnesses are both available and competent.” Kindell v. State, 413 So.2d 1283, 1288 (Fla. 3d DCA 1982) (Pearson, J., concurring) (emphasis in text). See Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893); United States v. Blakemore, 489 F.2d 193 (6th Cir.1973); Gass v. United States, 416 F.2d 767 (D.C.Cir.1969); Lane v. State, 352 So.2d 1237 (Fla. 1st DCA 1977) (Rawls, J., dissenting), cert. denied, 362 So.2d 1054 (Fla.1978). Cf. Buckrem v. State, 355 So.2d 111 (Fla.1978) (both prongs of rule satisfied); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975) (same).

In the present case, the missing witness was Frank DiCamillo, who was originally joined as a defendant in the ease. About two months before the commencement of Araujo’s trial, DiCamillo entered a plea of guilty to the charges, was sentenced to a term of imprisonment, and ordered to surrender at a future date to begin serving his sentence. By the time of Araujo’s trial, DiCamillo had failed to surrender as ordered and had become a fugitive from justice. DiCamillo’s unavailability was, of course, well known to the prosecutor.

Araujo testified on his own behalf. He explained that for a number of years until early in 1979, he had worked with DiCamillo running an automobile body shop. Thereafter, following brief employment at a similar operation, Araujo decided to open his own body shop and requested DiCamillo’s help. Their discussions were interrupted when Araujo took a trip with his family. Upon Araujo’s return, he contacted DiCamillo to resume the discussions. DiCamillo got back in touch with Araujo on May 11, 1979, and told Araujo that that evening he would be at the home of Mr. Howard (known by Araujo to be a good friend of DiCamillo) and that Araujo should meet DiCamillo there at 7:00 p.m. This, according to Araujo, is what brought him to the Howard home on the night of the marijuana raid.,

In his closing argument to the jury, the prosecutor argued the implausibility of Araujo’s testimony:

“You know the Defendant’s testimony that he gave from the stand. He said he went to the Jeffrey Howard home to discuss a business deal with Frank De-Camilla. Do you remember that?
“You remember they were going to negotiate a business deal?
“Now, you know if you — if a fellow were going to discuss a business deal with Frank DeCamilla, he certainly might go to DeCamilla’s place of business. He might go to his home. He might have Frank DeCamilla come to his own home. Why would he go to the Jeffrey Howard home?
“Frank DeCamilla doesn’t have his books there. Why would he go there? And, I think the Defendant might have suggested in answer to us in that regard, ladies and gentleman [sic], because he said he went there — his own testimony — because he expected — I even wrote this down— expected Frank DeCamilla to provide some financing.”

Defense counsel argued in response:

“He says, is it reasonable they would meet at Jeffrey Howard’s house. Nobody said it had to be reasonable, whether it is a likely thing to do. He went to Mr. Howard’s house, because he is trying to close a deal with Mr. DeCamilla. That is why he is at Mr. Howard’s house, because that is where Mr. DeCamilla said to meet him.
“Are you going to put him in jail because Frank doesn’t do business in his office?”

The prosecutor rebutted:

“If Frank DeCamilla is not just the sort of fellow that does business in his home, maybe that is so, and maybe not. Where is Frank DeCamilla?
“We both called witnesses. I called everybody I wanted.”

The defendant objected and moved for a mistrial. The trial court overruled his objection and denied his motion for mistrial on the ground, urged by the State, that defense counsel’s argument had “opened the door” to the State’s remark. The State makes the same contention here with far less success.

The prosecutor argued to the jury the unlikelihood of Araujo meeting DiCam-illo at Howard’s house to discuss business. Defense counsel’s rejoinder was simply that whether it was unlikely or not, Araujo said that is what he was doing there. Defense counsel’s comment neither suggests that had DiCamillo been called, he would have corroborated the defendant’s testimony, nor attempts to take advantage of DiCamillo’s absence. The defendant’s argument cannot therefore be said to have provoked the State’s impermissible reply. Where a defendant testifies as to what another told him to establish his lack of knowledge or intent, the State, having argued that the defendant’s story is unreasonable, will not be heard to say that the defendant, by thereafter arguing the reasonableness of his testimony, ipso facto, invites the State’s “missing witness” reply. Thus, no door was opened to the State’s pernicious comment.

It being undisputed in this record that DiCamillo, although presumably competent to testify, was not available, it was error to overrule the defendant’s objection to the State’s comment, “Where is Frank DeCam-illa? We both called witnesses. I called everybody I wanted.” Because this comment inescapably invited the jury to infer that the reason the defendant did not call DiCamillo as a witness is that DeCamillo’s testimony would not corroborate the defendant’s (despite the fact, which the prosecutor well knew, that the defendant was wholly incapable of procuring DiCamillo’s attendance as a witness) and because the evidence against the defendant is far from overwhelming, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

ON MOTION FOR REHEARING

The Assistant Attorney General, in a motion for rehearing filed on behalf of the State, has the effrontery to tell us that in deciding this case we “overlooked” or “misapprehended” a critical fact, namely, that DiCamillo, whom we described in our opinion as a fugitive by virtue of not having surrendered to begin the service of his sentence, was not a fugitive at all, but was safely nestled in one of the State’s correctional institutions at the time of Araujo’s trial.

The transcript of trial in this case reflects that the prosecutor informed the court that “[sjhortly after he pled guilty, Mr. DiCamillo did not surrender himself to commence the sentence after the plea was taken.” (emphasis supplied). Assuming, generously, that the Assistant Attorney General overlooked that statement when he first read it, surely its existence could not have been missed when the Assistant Attorney General read the appellant’s initial brief, which, referring to the transcript, informed his adversary that

“the prosecutor himself had earlier informed the court that Mr. De Camillo was a fugitive (2/25 Tr. 46). Given that status, he certainly was not available to be called by the defense. The argument was improper and unfair.”

Appellant’s Initial Brief, p. 23.

Yet, in the face of this, the Assistant Attorney General filed a brief in which he announced his acceptance of the appellant’s statement of the facts “as a substantially accurate account of the proceedings below” (Appellee’s Answer Brief, p. 1) and at no time took issue with the fact appearing in the record, that is, that DiCamillo was a fugitive.

After appellant’s reply brief arrived and informed us once again that “it is not fair reply to fault the defense for not calling a witness whom the prosecutor knows is a fugitive and unavailable to testify” (Appellant’s Reply Brief, p. 5), there was no protest from the Assistant Attorney General. And when the fugitive status of DiCamillo was brought up time and again at oral argument of this case, the fact remained unchallenged by the Assistant Attorney General. We think, therefore, it is fair to say that any overlooking and misapprehending that occurred in this case was done by the Assistant Attorney General.

Our opinion in this case issued on May 22, 1984, nineteen days after oral argument. We recounted therein as a fact that:

“By the time of Araujo's trial, DiCamillo had failed to surrender as ordered and had become a fugitive from justice. DiCamillo’s unavailability was, of course, well known to the prosecutor.”

To the extent that the Assistant Attorney General had not previously overlooked this fact, but had apprehended it as a fact of little importance, his misapprehension was now brought home to him by our opinion.

The motion for rehearing alleges for the first time that the transcript of the trial upon which we relied is inaccurate and that DiCamillo was in fact not a fugitive. Quite apart from the fact that no effort to correct the transcript has ever been made below, it appears from the court reporter’s affidavit (appended to the appellant’s response to the State’s motion for rehearing) that the transcript has been compared to the court reporter’s notes and is absolutely accurate. It appears from an affidavit submitted by the Department of Corrections that DiCamillo was a prisoner in State custody at the time of Araujo’s trial and that, therefore, the prosecutor’s statement at trial to the contrary was erroneous. However, since DiCamillo’s being in fact not a fugitive does not change the impropriety of the prosecutor’s argument, see n. 6, and his being a fugitive would serve only, as it did in our opinion, to exacerbate the unfairness of the argument, the Assistant Attorney General’s belated effort to save this case from reversal must fail.

Accordingly, the State’s motion for rehearing is denied. For the Assistant Attorney General’s benefit, we add these words, written by another court on the occasion of being confronted with like behavior:

“This is not a case of a party caught in some manner by surprise .... For a governmental agency best familiar with its own practice with respect to a matter directly in issue, and now said to be of paramount importance, to make no mention of the subject until after it had lost the case on another ground, if deliberate, is a breach of duty to the court and, if inadvertent, is still inexcusable. The Commission’s petition for rehearing raising this allegedly vital point contains no mention of why it was first developed at this late date, let alone any apology for so doing.”
Carr v. Federal Trade Commission 302 F.2d 688, 692 (1st Cir.1962) (on rehearing)-

The same holds true here.

Motion for rehearing denied.

      . The majority in Lane acknowledged this well-settled rule, but found its violation to be harmless error under the circumstances of the case.

      . Indeed, all of the facts concerning DiCamillo’s fugitive status were recited by the prosecutor to the trial judge at an early point in Araujo’s trial.

      . Araujo also explained that his act of opening the driveway gate to allow a truck to enter was done at the request of DiCamillo and without knowledge of the truck occupants’ purpose. The occupants’ purported purpose was to pick up a delivery of marijuana; their real purpose was to conduct a raid, seize the marijuana, and arrest everyone at the Howard house. Before the night of the raid, the police had never met or talked to Araujo, nor heard his name during the previous drug negotiations. It is clear, however, that when Araujo came to the house and entered the garage area, he saw the bales of marijuana and remained on the premises until the arrival of the police.

      . Because this case must be retried, we note that the trial court correctly overruled the prosecutor’s hearsay objections to Araujo recounting what DiCamillo said to him. Such testimony was not offered to prove the truth of the matter asserted by DiCamillo, but to show its effect upon Araujo and is thus admissible as non-hearsay. See, e.g., United States v. Jackson, 621 F.2d 216 (5th Cir.1980) (defendant’s testimony concerning what he was told about purpose of bank loan offered to prove lack of knowledge in defense to making false entry); United States v. Herrera, 600 F.2d 502 (5th Cir.1979) (defendant's testimony concerning threats received admissible to establish claim of duress); United States v. Rubin, 591 F.2d 278 (5th Cir.), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979) (defendant's testimony that he had been told by present and past union presidents that union’s constitutional procedures for obtaining salary increases did not have to be scrupulously followed admissible to establish defense to charge of taking unauthorized salary increases); United States v. Dunloy, 584 F.2d 6 (2d Cir.1978) (defendant’s testimony as to what he was told as bearing upon whether he believed package contained valuables or securities rather than narcotics); United States v. Wellendorf, 574 F.2d 1289 (5th Cir.1978) (defendant's testimony concerning tax advice he received admissible to establish good faith); United States v. Carter, 491 F.2d 625 (5th Cir.1974) (defendant’s testimony that cousin permitted him to use car and did not tell him it was stolen); United States v. Anost, 356 F.2d 413 (7th Cir.1966) (defendant’s testimony concerning contents of phone conversations with co-defendant which bore upon his explanation for possessing allegedly stolen goods).

      . DiCamillo’s name appears as DeCamilla throughout the transcript.

      . Additionally, there is no showing in this record that DiCamillo, had he not been a fugitive, was peculiarly within the defendant’s power to produce.

      . Even if DiCamillo was within the reach of a subpoena, he was not shown by this record to be available to either party, much less the defendant, where, as here, he might, if called, have invoked his privilege against self-incrimination and refused to testify. See United States v. Chapman, 435 F.2d 1245 (5th Cir.1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971). See also United States v. Seavers, 472 F.2d 607 (6th Cir.1973); Maristany v. State, 414 So.2d 206 (Fla. 3d DCA 1982) (a defendant's plea of guilty to a particular offense does not waive privilege of self-incrimination as to other offenses arising out of same transaction).


text:
    Alan Clayton KNOWLES; Harry Walter Stinger, Appellants/Appellees, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellee/Appellant.
    Nos. 83-1676, 83-1681 and 83-1815.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied June 25, 1984.
    Daniels & Hicks and Louise H. McMur-ray, Anderson, Moss, Russo & Gievers, Miami, for Alan Clayton Knowles.
    Robert H. Crary, Jeanne Heyward, Miami, for Harry Walter Stinger.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Richard A. Sherman, Fort Lauderdale, for Pennsylvania Nat. Mut. Cas. Ins. Co.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.

       Participated in the decision but not oral argument.

   PER CURIAM.

After an amended final judgment was rendered against an insured and his carrier, which awarded damages in excess of the amount of the policy, the company tendered the face amount of the policy plus the interest on the full amount of the judgment in accordance with its contract of insurance, Highway Casualty Company v. Johnston, 104 So.2d 734 (Fla.1958); Allstate Insurance Company v. Warren, 125 So.2d 886, (Fla. 3d DCA 1961), together with a proposed satisfaction.

A dispute arose as to the terms of the satisfaction and the insurance company ultimately demanded the return of the funds tendered. When they were not forthcoming the plaintiff and the company moved for relief in the trial court. The trial court ultimately entered an order which resulted in the funds being placed in the registry of the court. It also ordered that the company pay interest on the full amount of the judgment as contracted for until the date it deposited all interest due into the registry of the court.

Both sides appealed. We affirm the action of the trial judge, except that we strike any reference that the interest was computed on $25,000, the face amount of the policy, rather than the full amount of the judgment as actually tendered and deposited in the registry of the court. Therefore the orders under review be and the same are hereby affirmed as modified.

Affirmed as modified.


author: BARKDULL, Judge.

text:
    SAFEWAY INSURANCE COMPANY and Bruce D. Sutton, Appellants, v. Darlene SAXON, Appellee.
    Nos. 83-1984, 83-1985.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied June 25, 1984.

      Parrillo, Weiss & Moss, Miami, Ronald D. Poltorack, Fort Lauderdale, for appellants.
    Hershoff & Levy and Jay Levy, Miami, for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   BARKDULL, Judge.

On the second day of a jury trial in a negligence action, the defendant failed to appear. Counsel moved for a continuance, which was denied. Then counsel moved the court to permit the defense to read the defendant’s pretrial deposition, which was denied. During the closing argument plaintiffs counsel did not argue damages. In closing argument, defense counsel called upon the jury to return a “zero verdict” and “not giving her a cent”. Thereafter on rebuttal, counsel for the plaintiff went into certain items of damage, over objection.

On appeal, after an adverse jury verdict, the appellant contends first, that the trial court abused its discretion in denying the motion for continuance, or in lieu thereof, permitting a reading of the defendant’s discovery deposition and second, that the trial court erred in permitting the rebuttal argument as to damages. We affirm.

At the time the motion for continuance was initially denied, the whereabouts of the defendant were unknown and we find no abuse of discretion in the trial court denying the motion under these circumstances. Kasper Instruments, Inc., v. Maurice, 394 So.2d 1125 (Fla. 4th DCA 1981); Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973). Subsequently there was a representation made that the defendant’s absence may have been occasioned by circumstances beyond his control, however, no sworn motion to this effect was made, either during the trial or in post trial proceedings. See Vaughan v. Car Tapes, Inc., 135 Ga.App. 178, 217 S.E.2d 436 (Ga.App.1975); Compare; Elmariah v. Associates Financial Services Corporation, 401 So.2d 929 (Fla. 2d DCA 1981); Tri-State Systems, Inc. v. Village Outlet Stores, Inc., 135 Ga.App. 81, 217 S.E.2d 399 (Ga.App.1975); Ellis v. Butterfield, 98 Idaho 644, 570 P.2d 1334 (Idaho 1977).

We also find no error in the trial court refusing to permit the use of the discovery deposition. Schwind Harvesting v. Boatman, 424 So.2d 948 (Fla. 1st DCA 1983); Fla.R.Civ.P. 1.330(a)(3).

As to the alleged improper closing argument, we find no merit in this contention. Defense counsel clearly opened the door by argument which requested the jury to return a “zero verdict” and [“not to give”] the plaintiff “a cent”.

Therefore the final judgment reviewed in this cause be and the same is hereby affirmed.

Affirmed.


text:
    The ISLAMORADA BANK, Appellant, v. Francisco R. RODRIGUEZ, Appellee.
    No. 83-2633.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied July 3, 1984.

      Larson and Jones and Gustave W. Larson, Miami Shores, for appellant.
    Britton, Cohen, Cassel, Kaufman & Schantz and J.T. Haley, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   PER CURIAM.

Islamorada Bank appeals the denial of its motion to vacate an order which permitted redemption of property after the foreclosure sale of the property. We reverse.

Coral Gables Federal Savings and Loan Association filed a foreclosure action naming, among others, Islamorada Bank and Miami National Bank as party defendants. Coral Gables Federal held a first mortgage on the subject property on which Islamora-da held a second mortgage and Miami National held a third mortgage. Coral Gables Federal assigned its mortgage to Strokmor, Inc., which was substituted as party plaintiff. Strokmor then filed a motion for final summary judgment. After notice and hearing, summary judgment of foreclosure was entered in favor of Strokmor in the amount of $85,530.14. The judgment also declared Islamorada held a superior lien to all other defendants and had a first priority claim to surplus proceeds of the sale up to $11,117.72, the amount of its lien. At the foreclosure sale, Islamorada was the highest bidder at $114,000.

Subsequently, Miami National assigned its rights under its third mortgage to Rodriguez. After the foreclosure sale but before the clerk issued the certificate of title, the court entered an order permitting redemption in favor of Rodriguez and substituting him as a party defendant/cross-plaintiff in place of Miami National. Rodriguez was permitted to redeem the property by paying the amount of the judgment in favor of Strokmor. Islamora-da moved the court to vacate its order permitting redemption, which motion was denied. This appeal followed.

We must first determine what rights of redemption are held by a junior mortgagee. The supreme court has indicated that “the only absolute right of a junior mortgagee is the right to redeem from the senior mortgage.” Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690, 692 (1930). The phrase “right of redemption,” however, takes on different meanings depending upon whether it is being used in relation to a mortgagor or a mortgagee.

When it is used with respect to a mortgagor, it refers to his right, prior to being foreclosed from that right, to satisfy the mortgage indebtedness which encumbers his property. When the phrase is used with reference to a junior mortgagee, as in the ease sub judice, it refers to his right to satisfy a prior mortgage by payment of the debt it secures and thereby become equitably subrogated to all rights of the prior mortgagee, (citation omitted)

Shipp Corp. v. Charpilloz, 414 So.2d 1122, 1123 (Fla. 2d DCA 1982). Accord Glendale Federal Savings and Loan Ass’n v. Guadagnino, 434 So.2d 54 (Fla. 4th DCA 1983). The junior mortgagee’s right of redemption applies to the rights of the senior mortgagees and not to the underlying real property. Shipp. It is apparent, therefore, that the court below improperly allowed Rodriguez, an assignee of the rights of a junior mortgagee, to redeem the property.

We next must determine whether Rodriguez’ right to redeem as a junior mortgagee was extinguished at the time of the trial court’s entry of final summary judgment in favor of Strokmor. The supreme court has held that when a first mortgage has been foreclosed, the decree is valid as to those who were joined as parties. Quinn. A junior mortgagee who is made a party to a foreclosure action brought by a senior mortgagee has his rights determined by the entry of the final judgment. Glendale; Shipp. These rules would apply to Rodriguez, as the assignee of Miami National, a junior mortgagee made a party defendant to the foreclosure action.

Rodriguez, however, relies upon the applicable statute which provides that “when a person has an equity of redemption, ... the person may redeem the property at any time before the sale.” § 45.-031(1), Fla.Stat. (1983). This statute has been construed to mean that redemption can be made up until the time the certificate of title is issued in accordance with section 45.031(3). Allstate Mortgage Corp. of Florida v. Strasser, 277 So.2d 843 (Fla. 3d DCA), aff'd, 286 So.2d 201 (Fla.1973). In Allstate Mortgage, however, we held that section 45.031 must be strictly construed and will not be interpreted to displace the common law further than is clearly necessary. Accordingly, we find that because the statute refers to redemption of the “property,” and a mortgagee’s right of redemption does not apply to the underlying real property, Shipp, the term “person” in the statute must be construed to mean mortgagor. This interpretation is consistent with decisions of this and other courts. Compare Allstate Mortgage (the mortgagor redeemed her property after foreclosure sale but before issuance of certificate of title) and Roy v. Matheson, 263 So.2d 604 (Fla. 4th DCA 1972) (same) with Glendale (the mortgagee not permitted to redeem after entry of summary judgment and sale) and Shipp (same).

We find that any equity of redemption belonging to Rodriguez as the assign-ee of Miami National, was extinguished when the trial court entered a final summary judgment in favor of Strokmor. Rodriguez, as the holder of a mortgagee’s interest, never had a right to redeem the property. See Shipp. Further, any purported attempt to redeem the senior mortgage by Rodriguez was untimely. See Glendale. The trial court, therefore, erred in setting aside the foreclosure sale and permitting Rodriguez to redeem the property.

We accordingly reverse and remand for proceedings consistent herewith.


text:
    Richard H. NEWCOMB, Appellant, v. James B. FORBES, III, Joann P. Forbes and Consolidated American Insurance Company, Appellees.
    No. 83-2949.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied July 2, 1984.
    Lieberman & Benjamin and Ivan S. Benjamin, Miami, for appellant.
    Thomas J. Meroni and Leonard F. Burr, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. See Pope v. Cruise Boat Co., 380 So.2d 1151 (Fla. 3d DCA 1980); Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), cert. denied, 373 So.2d 460 (Fla.1979); Quinnelly v. Southern Maid Syrup Co., 164 So.2d 240 (Fla. 2d DCA 1964).


text:
    Zoltan SARI and Pauline Sari, his wife, Appellants, v. AETNA CASUALTY AND SURETY COMPANY and Rebecca C. Gerson, Appellees.
    No. 83-2958.
    District Court of Appeal of Florida, Third District.
    May 22, 1984.
    Rehearing Denied June 25, 1984.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, and Robert Pasin, West Palm Beach, for appellants.
    Ress, Gomez, Rosenberg & Howland, North Miami, and Steven Edelstein, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

We conclude that the step-down between the tile floor of an apartment hallway and the carpeted, necessarily flexible, pile surface of the adjacent bedroom which came to the same level, and upon which the plaintiff fell, was so obvious that, as a matter of law, neither warning nor correction of the condition was required. Schoen v. Gilbert, 436 So.2d 75 (Fla.1983). Accordingly, the summary judgment entered below for the defendant owner is

Affirmed.


author: NIMMONS, Judge.

text:
    STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellant, v. SALVATION LIMITED, INC., Appellee.
    Nos. AO-246, AQ-336.
    District Court of Appeal of Florida, First District.
    May 22, 1984.

      James N. Watson, Jr., Staff Atty., Tallahassee, for appellant.
    No brief filed for appellee.
   NIMMONS, Judge.

The Division of Alcoholic Beverages and Tobacco (“DABT”) appeals from a final order of a hearing officer of the Division of Administrative Hearings entered pursuant to Section 120.56, Florida Statutes, declaring Fla.Admin.Code Rule 7A-3.15(3)(d) to be an invalid exercise of delegated legislative authority. We affirm the order of the hearing officer.

Chapter 565, Florida Statutes, limits the number of liquor licenses to be issued in Florida. However, certain businesses and enterprises are exempt from such limitations if they meet the criteria of Section 561.20(2)(a)3., Florida Statutes (1981), which provides in pertinent part:

(2)(a) No such limitation of the number of licenses as herein provided shall henceforth prohibit the issuance of a special license to:
3. Any restaurant having 2,500 square feet of service area and equipped to serve 150 persons full-course meals at tables at one time, and deriving at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages

Rule 7A-3.15(3) contains criteria which DABT uses to determine whether a special restaurant licensee is operating a bona fide restaurant within the meaning of Section 561.20(2)(a), supra. In order to qualify as such under the Rule, the meals must be prepared and cooked on the premises.

It is axiomatic that an administrative rule cannot enlarge, modify or contravene the provisions of a statute. Seitz v. Duval County School Board, 366 So.2d 119, 121 (Fla. 1st DCA 1979); State Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454 (Fla. 1st DCA 1980). A rule which purports to do so constitutes an invalid exercise of delegated legislative authority. Nicholas v. Wainwright, 152 So.2d 458, 460 (Fla.1963).

DABT’s general rule-making power stems from Section 561.11:

(1) The division shall have full power and authority to make, adopt, amend, or repeal rules, regulations, or administrative orders to carry out the purposes of the Beverage Law ....

Through Section 561.20(2)(a)3., the legislature has enumerated specific criteria for a special restaurant beverage license. The applicant or licensee must: (1) be a restaurant, (2) have 2,500 square feet of service area, (3) be equipped to serve 150 persons full-course meals at tables at one time, and (4) derive at least 51 percent of its gross revenue from the sale of food and nonalcoholic beverages. To these fixed and definite criteria, DABT added, by rule, a fifth criterion: that the meals be prepared and cooked on the licensed premises. In so doing, it enlarged upon the statutory criteria and, thus, exceeded the “yardstick” laid down by the legislature. See 4245 Corporation v. Division of Beverage, 371 So.2d 1032 (Fla. 1st DCA 1978); State De partment of Health and Rehabilitative Services v. McTigue, supra.

The above statute does not define the terms “restaurant” or “serve.” They should, therefore, be given their plain and ordinary meaning. Smith v. State, 80 Fla. 315, 85 So. 911 (1920); McTigue, supra. “Restaurant” is defined as “a public eating place.” Webster’s New Collegiate Dictionary, p. 979 (1979). To “serve” means “to help persons to food: as (a): to wait at table; (b): to set out portions of food or drink.” Id. at 1051. These terms are clear and unambiguous. The serving of food by a restaurant simply does not require that the food be prepared and cooked on the premises. If the legislature had intended to impose such a requirement, it could easily have done so.

DABT contends that any reference in the laws of Florida to the term “restaurant” should be construed to mean a “public food service establishment” elsewhere defined in the statutes. But even if DABT is correct that those terms are equivalent, such is unavailing to DABT in view of the statutory definition of “public food service establishment.” Section 509.013(5)(a), Florida Statutes (1981), provides:

(5)(a) “Public food service establishment” means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure, that is maintained and operated as a place where food is regularly prepared, served, or sold for immediate consumption on or in the vicinity of the premises; to be called for or taken out by customers; or to be delivered to factories, construction camps, airlines, and other similar locations for consumption at any place. “Public food service establishment” includes any public location with vending machines dispensing prepared meals, (emphasis supplied)

In its brief, DABT erroneously quotes the statutory definition of “public food service establishment” by substituting the conjunctive “and” for the disjunctive “or” in the statutory phrase “where food is regularly prepared, served, or sold.” Obviously, the correct statutory definition quoted above, which is in the disjunctive, is erosive rather than supportive of DABT’s position.

Finally, it has not been shown that rejection of DABT’s contention — that Section 561.20(2)(a)3. supports a requirement that meals be prepared and cooked on the premises — will defeat the purpose or intent of the Florida Beverage Law or will have bizarre consequences. Compare State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1981); Florida Commission on Human Relations v. Human Development Center, 413 So.2d 1251 (Fla. 1st DCA 1982). In Department of Business Regulation, Division of Beverage v. Huddle, Inc., 342 So.2d 140, 142 (Fla. 1st DCA 1977), this court said:

It has always been the legislative intent that a special restaurant license under Section 561.20(2) was available only when there was a bona fide substantial restaurant operation primarily engaged in the service of food and nonalcoholic beverages. It was never to be a subterfuge for the operation of a bar or cocktail lounge with only incidental sales of food.

It has not been shown that off-premises preparation and cooking of food conflicts or is inconsistent with this legislative intent.

DABT argues that Huddle held the subject rule was reasonable and consistent with the statute. But the Huddle court specifically addressed and upheld only the rule’s requirement that a minimum percentage of gross revenues be derived from the sale of food and nonalcoholic beverages. Its holding cannot be broadened to include other aspects of the rule which were not subjected to judicial scrutiny.

AFFIRMED.

THOMPSON and BARFIELD, JJ., concur.

      . The subject rule provides, in pertinent part:
      "(3) The following criteria will be used in determining whether or not the holder of a specified restaurant license is a bona fide restaurant.

      (d) The business is advertised and held out to the public to be a place where meals are prepared and served, space being provided with adequate kitchen and dining room equipment and having employed such number and kinds of employees for preparing, cooking and serving meals for guests; the primary operation of such restaurant shall be for the preparation, cooking, and serving of meals and not for the sale of alcoholic beverages." (emphasis supplied)

      . We are confident the error was inadvertent.

      . The court held only that the restaurant must be primarily engaged in the service of food, not the preparation, cooking, and service of food.


text:
    Pierre Cesar ORANTES and Salvatore Francis Vastola, Appellants, v. STATE of Florida, Appellee.
    Nos. AS-5, AS-298.
    District Court of Appeal of Florida, First District.
    May 22, 1984.
    Rehearing Denied June 27, 1984.

      Stephen N. Bernstein, Gainesville, for appellant Orantes.
    Robert A. Harper, Jr., Tallahassee, for appellant Vastóla.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Orantes and Vastóla appeal their convictions of conspiracy to traffic in cannabis in violation of Sections 777.04 and 893.135, Florida Statutes (1981). They were charged with conspiring to possess in excess of 100 pounds of cannabis. We affirm.

In April, 1982, the Narcotics and Organized Crime Unit (N.O.C.U.) of the Gaines-ville Police Department caused a civilian undercover operative, Ronald Hoover, to be placed in a residence near that of Arthur Gower, a suspected pilot for drug smugglers. Hoover began associating with Gower for the purpose of gaining his trust, the object being to determine whether Gower and his drug-dealing associates would purchase illicit drugs if offered. This type of operation is commonly known as a “reverse sting.” Detective Crase of N.O.C.U. was to assume the role of a drug seller who had available to him a large quantity of cannabis.

On May 21, 1982, Hoover informed Gower that he knew a person (Crase) who had a large quantity of cannabis for sale. Subsequently, Gower returned a telephone call which Crase had placed to Gower. During that conversation and a succeeding telephone conversation that same day, Crase told Gower that he had a large quantity of cannabis which he needed to “unload.” Gower expressed interest in purchasing the cannabis and they agreed to a meeting the following day, May 22, in Orlando, to be attended by Hoover, Crase and Gower. The meeting was held as planned at a Holiday Inn in Orlando. The room, which was rented by the investigating officers, was wired for electronic surveillance. At the meeting, they discussed the quantity which would be purchased, which quantity, at that time, varied between 1200 to 1600 pounds. During the meeting, Gower made several telephone calls in an effort to reach “his people” in Washington, D.C. Eventually, one of Gower’s telephone calls was returned after which Gower advised Crase and Hoover that “his man” was flying to Orlando to meet with them. That man turned out to be the defendant Orantes.

By prearrangement, Orantes was met at the Orlando airport on May 23 by Gower and Hoover after which they proceeded to Gainesville. There, Hoover introduced Or-antes to Crase over the telephone, and they arranged for Crase to show Orantes the cannabis that night at Hoover’s residence. Crase checked out two bales of cannabis from the Gainesville Police Department property room. Hoover picked up Crase and they proceeded to Hoover’s residence where they met with Orantes and Gower. During the ensuing conversation, Orantes acknowledged that he was experienced in this kind of thing. Crase showed Orantes a sample of the cannabis. Although Or-antes expressed concern that it appeared dry, he indicated that “they” were interested in purchasing the cannabis. He did not yet know the exact quantity they would purchase and said that he would have to contact “his man.” Orantes did say that they would agree to a price of $230 per pound. Orantes said that he was interested in dealing with Crase because some of his sources had been arrested. Orantes said that they liked to use automobiles in order to use back roads and avoid weigh stations. ■

The meeting ended with the understanding that Crase would call Orantes at midnight in order to give Orantes time to make contact with his man. Crase did call Orantes as planned and they discussed consummating the transaction. Later that evening, May 25, 1982, Orantes was observed picking up Vastóla at the Gaines-ville airport. Orantes telephoned Crase and they arranged to meet at Hoover’s residence. There, Crase, Orantes and Vas-tóla went into a bedroom where Vastóla examined a sample of the cannabis. He told Orantes, “It’s exactly the color you said it was. It’s a little dry. I won’t have any problems with it. I’ll take it.” Crase pulled Orantes aside to determine whether Orantes was charging Vastóla an additional fee over and above the previously negotiated $230 per pound. Orantes told Crase that there was no such fee arrangement between Vastóla and him (Orantes).

The subject of conversation then turned to the mechanics of consummating the purchase. Vastóla said that he had arranged for a man to drive from D.C. in an LTD with the $90,000 cash purchase price and that he would be arriving in a couple of hours. This was in the early morning hours of May 26. The meeting broke up and Crase left. He briefed other officers on the status of the investigation and went home. After resting a few hours, Crase telephoned Gower and was advised that everything was “go” and to be at Hoover’s residence at 9:30 a.m. When Crase arrived at Hoover’s residence, already present were Orantes, Vastóla, Hoover and Gower. Vastóla walked to a Ford LTD with a Washington, D.C. license tag, removed a briefcase from the trunk and brought it back inside the house. Vastóla opened the briefcase and showed Crase $90,000 in cash contained in two brown paper bags.

They then decided to go to the “stash house” where the exchange would take place. Vastóla and Orantes went in the LTD together with the money and followed Crase's vehicle. After traveling a short distance, Vastóla and Orantes were stopped by surveillance officers and placed under arrest.

Appellants have raised numerous points on appeal, some of which points merit discussion. Appellants claim that the trial court erred in denying their motion for mistrial after Detective Crase, in violation of a pretrial ruling, characterized Orantes and Vastóla as “partners.” This occurred during Crase’s testimony describing his conversation with Orantes when Crase was trying to determine whether Orantes was charging Vastóla any fee over and above the negotiated $230 per pound purchase price. As previously mentioned in our summary of the testimony, Crase testified that Orantes told him there was no such fee or charge. Crase then volunteered his conclusion, “They were partners.” In the absence of the jury, the court heard arguments on the defendants’ motion for mistrial. Although Crase admitted that Or-antes did not characterize his relationship with Vastóla as that of a partnership, Crase testified that Orantes did say that he and Vastóla “were in it together.” Although the trial court denied the defendants’ motion for mistrial, he did instruct the jury to disregard Crase’s characterization of the relationship between Vastóla and Orantes as a partnership. We find that the trial court did not err in denying the motion for mistrial.

Orantes contends that the evidence was not sufficient to support a conspiracy charge as to him. He says that, although the evidence may have been sufficient to establish that he aided and abetted Vastóla, conspiracy is a separate and distinct charge, the elements of which were not established by the evidence. Orantes says that, as the defendant in Schueren v. State, 370 So.2d 83 (Fla. 1st DCA 1979), he was merely a “go-between in a transaction involving others.” We disagree. The crime of conspiracy consists of an express or implied agreement between two or more persons to commit a criminal offense and an intention to commit such offense. 16 Fla.Jur.2nd Criminal Law § 1547. The evidence in the case at bar was sufficient to support both an agreement between Or-antes and Vastóla and the requisite intent to possess the cannabis.

Appellants also contend that the trial court erred in denying a requested jury instruction to the effect that when two or more persons conspire with a government agent with the intention that an essential element of the offense be performed only by the agent, there is no criminal conspiracy. Although that principle of law is a correct one under the holding in King v. State, 104 So.2d 730 (Fla.1958), it has no application in the case at bar. In order for the King rule to apply to an alleged criminal conspiracy, the agreement must be that “an essential ingredient of the offense [conspired to be committed] is to be performed by, and only by, such government agent.” 104 So.2d at 733 (emphasis supplied). It cannot be said in the instant case that there was any element of the crime of possession of over 100 pounds of cannabis, the offense conspired to be committed, that was to be performed only by a government agent. See Williams v. State, 383 So.2d 722, 725 (Fla. 1st DCA 1980). Moreover, the fact that a government agent was the source of the defendant’s anticipated possession of the cannabis does not, in our view, call for application of the King rule. See Cristadero v. State, 426 So.2d 977 (Fla. 4th DCA 1982); cf. United States v. Lee, 622 F.2d 787 (5th Cir.1980).

Appellants further contend that the trial court erred in denying their motions to dismiss on the grounds that Section 893.-135, Florida Statutes, should have been regarded as unconstitutional as applied to them. They contend that in a reverse sting operation such as this, it is impossible for the defendant to have the opportunity to relief under Section 893.135(3) from the mandatory sentence provisions of the statute. That section provides:

(3) The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in , the identification, arrest, or conviction of any of his accomplices, accessories, coconspir-ators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.

We reject appellants’ argument because the mandatory minimum sentence provi--sions of Section 893.135 were not even applicable to them inasmuch as they were only charged with conspiracy to violate Section 893.135. Nor did the trial court impose any mandatory minimum sentence. He simply sentenced Vastóla and Orantes, respectively, to terms of five years and three years imprisonment. The appellants are hardly in a position to urge the above constitutional issue. Even if Section 893.-135 did encompass conspiracies and its mandatory minimum provisions applied to such conspiracies as well as the completed acts, the appellants' arguments would still be unavailing. In State v. Benitez, 395 So.2d 514 (Fla.1981), the court stated:

Appellees’ suggestion that subsection (3) denies equal protection of the law to convicted defendants who cannot provide “substantial assistance” to law enforcement officials is patently without merit. This legislation manifestly passes the rational basis test. See Hamilton v. State, 366 So.2d 8 (Fla.1978).

We have examined the remaining points urged by appellants including the trial court’s failure to give certain defense requested instructions, the trial court’s limitation of cross-examination of Hoover, and violation of due process by prosecutorial “overreaching” in this reverse sting operation, and find such points to be without merit.

AFFIRMED.

MILLS and SMITH, JJ., concur.

      . We note that, by virtue of Chapter 82-2, Laws of Florida, the present statute now includes conspiracies to traffic. See Section 893.135(4), Florida Statutes (1983). The effective date of that amendment was October 1, 1982, several months subsequent to the instant conspiracy.