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

text:
    STATE of Florida, Appellant, v. Edward G. KADET, Appellee.
    Sept. 13, 1984.
    District Court of Appeal of Florida, Fifth District.
    No. 83-1129.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellant.
    Craig Stephen Boda of Judge & Warren, P.A., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order dismissing an indictment which had charged Officer Edward Kadet with unnecessary killing to prevent an unlawful act, a violation of section 782.11, Florida Statutes (1981). The court below found that the facts presented did not constitute a prima facie case of violation of the statute. The court reasoned that unless a killing was committed in an attempt to resist or stop an unlawful act independent from one directed at the eventual defendant, here Officer Kadet, the provisions of section 782.11, would not apply. We agree and affirm.

The parties stipulated to the following facts. On October 18, 1982, a Mr. Lovett was walking about in an excited manner, speaking loudly and calling to passing cars in the parking lot of a convenience store. Lovett appeared to be mentally disturbed. Officer Kadet, who was in uniform and on patrol, observed Lovett acting in a strange manner and proceeded to investigate. Ka-det called for a backup and referred to the individual in his radio dispatch as mentally disturbed. A second officer arrived on the scene. The uniformed officers identified themselves to Lovett who produced a two and one-half inch tile knife which he held up by his side. Lovett advanced towards Kadet and Lovett was ordered to drop the knife several times by both officers. When Lovett continued to advance towards Ka-det, Kadet fired his revolver three times. Lovett was hit in the chest with one of the rounds and died. Several witnesses gave conflicting estimates as to how far Lovett was from Kadet when the officer discharged his weapon although it is undisputed that Lovett was advancing towards Ka-det when Kadet fired.

The question on which this case turns is whether proof of an underlying, independent and unlawful act above and apart from the force directed at the accused is required to establish a prima facie case of manslaughter under section 782.11. Section 782.11 provides as follows:

Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.

There is language in several cases which implies that proof of an independent unlawful act is necessary for an accused to be convicted of violating this statute. See Phippen v. State, 389 So.2d 991 (Fla.1980); Cobb v. State, 376 So.2d 230 (Fla.1979); State v. Carrizales, 356 So.2d 274 (Fla.1978); Mitchell v. State, 368 So.2d 607 (Fla. 3d DCA 1979); Whitehead v. State, 245 So.2d 94 (Fla.2d DCA 1971).

In Carrizales, the Florida Supreme Court held that where a defendant is charged with first degree murder and claims self-defense, the court is not required to instruct on section 782.11 when there is no evidence that an independent unlawful act has been committed. The court in Carrizales reasoned that it was not the intent of this statute to embrace an unnecessary killing under a claim of self-defense. Furthermore, the court opined that the instructions on self-defense adequately cover an unnecessary killing under a claim of self-defense. Carrizales, 356 So.2d at 275.

In Cobb, the Florida Supreme Court upheld a conviction for unnecessary killing pursuant to section 782.11 where the evidence showed that the defendant, a police officer, unnecessarily killed two trespassers during an attempt to arrest them. In that case, the court held that manslaughter described in section 782.11 is a crime separate and distinct from general manslaughter and culpable negligence. Therefore, the court reasoned that where the elements of general manslaughter exist in conjunction with the additional factor of resistance against another’s attempt to commit an unlawful act, a conviction for “unnecessary killing” manslaughter will stand.

In Mitchell, the Third District reversed a conviction under section 782.11 where the record before it was devoid of any evidence that the victim had committed a specific felony or unlawful act when he was shot by the defendant. The defendant, a police officer, was charged with (1) manslaughter in violation of section 782.07, Florida Statutes, and (2) manslaughter by unnecessary killing to prevent an unlawful act in violation of section 782.11. After a jury trial, the defendant was acquitted of the charge of manslaughter under section 782.07, but was found guilty of manslaughter under section 782.11. This decision did not include a factual account of what transpired prior to the shooting but held as a matter of law that the conviction could not stand.

In his special concurring opinion in Mitchell, Judge Schwartz argued that in Carrizales, the supreme court held that section 782.11 does not apply when the unlawful act allegedly committed by a decedent is the use of force directed against a defendant who claims that the killing was a justifiable act of self-defense. Further, Judge Schwartz stated that the purpose of section 782.11 is to reduce the charge when a killing might otherwise constitute first or second degree murder and where the murder is committed in resisting an attempt to commit an independent and unlawful act which does not involve force directed against the defendant.

We agree with Judge Schwartz’s analysis and find that section 782.11 does not apply under the circumstances here. An element of this particular statute is that the victim was committing or attempting to commit a felony or other unlawful act independent of the threatened act directed at the defendant.

As an observation, we question whether a law enforcement officer should ever be, in the absence of intentional misconduct or some degree of malice, criminally responsible for using poor judgment. A police officer, under the circumstances here, is ordered into a life threatening situation. The call usually comes without warning. He does not ask for the assignment, but he is bound to protect society against the violent acts of the unlawful or mentally deranged. Now that same society seeks to punish him for using poor judgment. An officer, in such circumstances, should not be burdened with the knowledge that if he overreacts to the real or imagined dangers he may be committing a crime, especially when those who judge his actions do so with the benefit of perfect hindsight and from a position of safety.

AFFIRMED.

SHARP and COWART, JJ., concur.


source: Caselaw Access Project

author: JORGENSON, Judge.

license: Public Domain

text:
    Nick MORLEY and Geneva Investment, Ltd., Appellants, v. TRAFALGAR DEVELOPERS OF FLORIDA, LTD., etc., et., al., Appellees.
    No. 82-2425.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Rehearing Denied Sept. 25, 1984.
    Daniels and Hicks and Elizabeth K. Clarke; Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for appellants.
    Sibley, Giblin, Levenson & Glaser and Marion Sibley, Miami Beach, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

For the following reasons we reverse the final summary judgment under review and remand this action to the trial court for further proceedings.

This case began in 1970 when Trafalgar Developers Ltd. [Trafalgar] brought a declaratory action seeking to have two contracts between Trafalgar and Geneva Investments Ltd. (and Geneva’s principal, Nick Morley) [Geneva] declared void and unenforceable on the grounds that Geneva did not have a Florida real estate license at the time the contracts were executed. The two contracts concerned the development by Trafalgar of the Fontainebleau Park apartment and condominium complex in Dade County. The first contract provided for Geneva to market Trafalgar’s properties and the second contract provided for Geneva and Trafalgar to form a corporation to manage rental units in the complex. This court in Geneva Investment, Ltd. v. Trafalgar Developers, Ltd., 274 So.2d 581 (Fla. 3d DCA), cert. discharged, 285 So.2d 593 (Fla.1973), held that the contracts were not void and unenforceable as licensing need only be in effect at the time of performance, not at the time of contract execution.

In 1975 Geneva filed a motion for supplemental relief and the trial court retained jurisdiction to consider Geneva’s allegations that it had performed all conditions precedent and was ready, willing and able to perform the contracts but had been prevented from performing by Trafalgar’s breach of both contracts. Geneva further alleged that under the first contract Trafalgar was to periodically provide Geneva with lists of all units which had been built and were ready for sale and that Trafalgar never provided Geneva with such lists, thereby preventing Geneva from performing. Geneva also alleged that Trafalgar refused to join with Geneva to form the corporation to manage rental units and that Trafalgar had wrongfully appropriated certain marketing ideas from Geneva.

Geneva filed a motion for partial summary judgment on the issue of Trafalgar’s breach of the first contract and, shortly thereafter, Trafalgar filed a motion for summary judgment. During a hearing on both summary judgment motions it was stipulated that the issues to be determined were

(1) Whether the sales contract created an exclusive sales agency or conferred upon the broker an exclusive right to sell; and
(2) Where there is an anticipatory breach of the contract sued upon, must the party seeking to recover damages for such breach be prepared to show its willingness, readiness and ability at all times to perform its obligations thereunder in order to recover damages.

The court entered an agreed order which provided for the parties to file written memorandums of law in support of their positions. After the parties filed their memorandums and after a subsequent hearing the court entered a summary judgment on both issues in favor of Trafalgar and then entered a final judgment in favor of Trafalgar. The trial court found (1) that the agreement created an exclusive sales agency and (2) that Trafalgar’s anticipatory breach of the agreement did not entitle Geneva to recovery because Geneva was not ready, willing and able to perform the obligations under the agreement.

As to the first issue we hold, contrary to the trial court, that the sales contract between the parties created an exclusive right to sell. The agreements which are the focus of this litigation can hardly be called typical broker-seller contracts. The parties to these agreements were sophisticated businessmen. The parties’ intent under the agreement was to create a joint venture with Trafalgar developing and Geneva marketing the properties. The first contract provided that

it is the intention of the parties that Geneva shall have the exclusive right to sell, lease and rent all properties (including the sale of condominiums, buildings of all kinds, lot sales', homesites, acreage and the like, and the lease and/or rental of apartments, lots, home-sites, acreage, shopping centers, stores concessions and the like) located in Fon-tainebleau Park which is to be sold or leased to any party or entity during the term hereof, and the general responsibility for organizing, supervising and controlling a complete sales and rental organization for the most effective possible marketing of such properties throughout the United States and elsewhere in the world, and such responsibility shall include, without limitation, the locating, selecting, appointing, training and supervising a sufficient number of sales and rental agents to effectively perform its obligations hereunder. [Emphasis added.]

The first contract prohibited Geneva from being employed by any other developer in competition with Trafalgar in Dade, Monroe, Collier, Broward or Palm Beach counties. It required Trafalgar to designate to Geneva “from time to time” the areas to be sold and to assign to Geneva sales prices and terms for such properties to be sold. The contract also provided that

Trafalgar shall advise Geneva in writing as to the total amount of dwelling units available to be sold by Geneva during such sales period, which amounts shall be the actual number of such dwelling units to be built during such period for which Trafalgar has then obtained construction and permanent financing commitments. [Emphasis added.]

The intent of the parties, manifested by the terms of the contract, was to grant Geneva the exclusive right to sell and lease property developed by Trafalgar to any party during the term of the contract. That the total amount of units available to be sold by Geneva during a sales period was to be the actual number of units to be built by Trafalgar during the sales period can lead only to the conclusion that Geneva was granted the exclusive right to sell such units. See Law Realty v. Pagliarulo, 385 So.2d 1093 (Fla. 4th DCA 1980); Community Cablecasting Corp. v. Daniels & Associates, 215 So.2d 17 (Fla. 1st DCA 1968), cert. denied mem., 225 So.2d 533 (Fla. 1969). The court in Law Realty held that “other language [contained in a listing agreement] agreeing to refer all others interested in the property to the broker ...,” id. at 1094, created an exclusive right of sale agreement. In Community Cablecasting Corp. an addendum to a sales contract excluding the broker from receiving a commission on any sale made to a particular buyer manifested “a clear intent that [the broker] was granted an exclusive right to sell ... as distinguished from an exclusive agency contract authorizing it to find a purchaser for the property and be entitled to a commission only if it was the procuring cause of the sale or if the sale was made through another broker,” id. at 20. In the instant case the above-quoted contract provisions manifest an equally clear intent that Geneva was granted an exclusive right to sell the properties. As the court in Nicholas v. Bursley, 119 So.2d 722, 727 (Fla. 2d DCA 1960), said, “the term ‘exclusive’ must be considered along with all other words in the instrument in an attempt to determine the intent of the parties [and] ... all the circumstances must be considered.” The court in Nicholas held that an “ ‘exclusive right to sell’ must be clearly set forth in unequivocal language within the four corners of the contract in order to divest the owner of his inherent right to dispose of his own property,” id.

The contracts in the case sub judice, along with creating many other duties and obligations, unequivocally granted Geneva an exclusive right to sell. This contract and the second property management contract were components in an elaborate property development, marketing and management plan. It is clear that the parties to this contract intended that Geneva exclusively market and sell the property developed by Trafalgar. The clear meaning expressed in the contract should be enforced. See Board of Public Instruction of Dade County v. Fred Howland, Inc., 243 So.2d 221 (Fla. 3d DCA 1970), cert. denied mem., 248 So.2d 167 (Fla.1971). The trial court, therefore, erred in finding that the agreement created an exclusive agency to sell.

The second issue involved in this appeal is whether Geneva must show that it was ready, willing and able to perform under the contract that Trafalgar anticipatorily breached. The trial court erred in that it did not even address this question. Instead the trial court found that as a matter of law Geneva was not ready, willing and able to perform.

In order for an anticipatory breach of a contract to give rise to a claim for damages the non-breaching party must show its ability to perform conditions precedent to performance by the breaching party. See Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181 (Fla.1982). Thus Geneva must show that it could have performed as a prerequisite to recovery under the contracts. Whether Geneva was in fact ready, willing and able to perform is a question of fact which precludes final summary adjudication of the issue.

We reverse the finding of the trial court that the contracts granted Geneva an exclusive sales agency, hold as a matter of law that Geneva was granted an exclusive right to sell and remand the action to the trial court for a factual determination of whether Geneva was ready, willing and able to perform under the marketing contract following Trafalgar’s anticipatory breach.

Reversed and remanded with directions.

HENDRY, J., dissents.

      . Geneva must only show that it could perform under the marketing contract because a paragraph of a rider to the management contract provides:
      [A] breach of the sales contract shall be an automatic breach of this management contract and the termination of the sales contract shall automatically terminate this management contract.


author: JOANOS, Judge. JO ANOS, Judge.

text:
    Donald G. BRADDOCK, Appellant, v. SCHOOL BOARD OF NASSAU COUNTY, Florida, and Craig Marsh, Superintendent of Schools, Appellee.
    No. AU-128.
    District Court of Appeal of Florida, First District.
    June 19, 1984.
    Rehearing Denied Aug. 22, 1984.

      Philip J. Padovano, Tallahassee, for appellant.
    Brian T. Hayes, Monticello, for appellee.
   JOANOS, Judge.

Braddoek, a continuing contract teacher and coach, appeals from an order of dismissal of the Nassau County School Board. The stated basis for the dismissal was that Braddoek violated the provisions of Florida Administrative Code Rule 6B-4.09(3), which is defined as a violation of the Code of Ethics of the Education Profession, Department of Education, in that his conduct “represented not only poor judgment ... but such conduct and behavior was [sic] so serious as to impair his effectiveness as a teacher in the Nassau County school system.” The issue with which we are here concerned is whether there is in the record competent substantial evidence to support the Board’s finding that Braddock’s conduct and behavior were of such character as to result in a diminution of his effectiveness as a teacher. We conclude that there is not.

On April 28, 1983, Superintendent Marsh suspended Braddoek with pay from his position as teacher and coach at Fernandina Beach High School. A hearing was held before the school board on May 12,1983, at which time Braddock’s suspension was confirmed pending the outcome of a final hearing. On May 23, 1983, pursuant to Section 231.36, Florida Statutes, Braddoek was formally charged with three specific instances of misconduct:

(1) that at approximately 2:00 a.m. on March 11, 1983, Braddoek met and spent time with one of his minor female students;
(2) that during the spring 1983 track season, following a track meet, Braddoek left the same minor female student at a convenience store while he transported other students to their home — Braddoek then returned and picked up the minor female student who rode alone with him to her home; and
(3) that on April 27, 1983, the same student rode alone with Braddoek to Fer-nandina Beach where they spent the afternoon together, not accompanied by other persons.

Testimony at the final hearing demonstrated that each of these meetings was arranged by the student — who was infatuated with Braddoek. On March 11, 1983, the student called Braddoek from a friend’s mobile home, urging him to come and talk to her. She was extremely upset because her brother had been injured in a motorcycle accident and had to be airlifted to a Jacksonville hospital. (Sometime prior to these events, the student’s mother had been killed in an auto accident.) The student’s parents (father and stepmother) were at the hospital with her brother. The student called Braddoek three times in close succession, urging him to come because she needed to talk to someone. Two witnesses, the student’s friend and Braddock’s roommate, testified that Braddoek was reluctant to respond to the student’s request. Finally, after the third phone call, Braddoek drove to the mobile home where the student was spending the night. The student met him outside, and they rode and talked in Braddock’s car for approximately thirty minutes. The testimony is not clear concerning the exact time Braddoek left the student. At her direction, Braddoek took her to a pay phone in the area of the mobile home. Braddoek left her there, after she told him that her friend would pick her up. The student testified that she did not really call her friend because she needed time alone to think things through. After walking for a while, she returned to the mobile home, arriving there at approximately 4:00 a.m.

The two other incidents listed in the formal charge occurred when Braddoek gave the student a ride home from a track meet, and when the student called Braddoek from school and asked him to take her home because she had missed her ride. With regard to the track meet episode, Braddoek was transporting four or five students. He stopped at a convenience store and the student got out of the car — telling Braddock she would call someone to pick her up. Braddock took the other students home, then stopped by the convenience store on the way back. The student was still there, so Braddock offered to drive her home. The final incident concerned a phone call from the student, who was still at school, to Braddock. She asked him for a ride home. On that day, Braddock agreed to take her home, but told her he had errands to run first. One of those errands required a trip to the beach to deliver a message to Braddock’s roommate.

Braddock was a track coach, and most of his contacts with this student arose as a consequence of her membership on the track team. This student and other members of the team were permitted by their parents to participate in track only if transportation home after track events and practices were provided. The record reflects that this student, and others, turned to Braddock for counseling with personal problems. The record further reflects no evidence of sexual misconduct in Braddock’s meetings with this student, nor did the Superintendent or the Board make any such allegation.

After hearing all the testimony, the Board decided that the facts would not support the definition of misconduct in Code of Ethics Rule 6B-1.02(2), which provides:

In fulfilling his or her obligations to the student, the educator (c) shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety.
(f) shall not use professional relationships with students for private advantages.

Instead, the Board decided to define “misconduct” as “activity or behavior that is so serious that it impairs the effectiveness of the individual in the school system.” The Final Order of Dismissal incorporates the Board-drafted definition of misconduct, with the comment that this definition is “based upon Florida Administrative Code Chapter 6B-4.09(3) and Rules of the Department of Education, Educational Standards Commission, Chapter 6B-1, Code of Ethics ...”

There is no question that the Board based its action of dismissal on proper grounds. Still, our responsibility on review of administrative action is to determine whether there is in the record competent substantial evidence to support the agency’s action. Section 120.68(10), Florida Statutes (1983); Boyette v. State Professional Practices Council, 346 So.2d 598, 600 (Fla. 1st DCA 1977). At the hearing, the Board found that the facts would not support an allegation that Braddock’s misconduct in office constituted a use of his professional relationship with the student for private advantage. The Board then defined misconduct in office as “behavior so serious as to impair the effectiveness of the individual in the school system.” Despite this effort to conform the ground for dismissal to the evidence, no testimony was offered that suggested that Braddock’s effectiveness as a teacher and coach had been impaired in any way. While we must agree that this teacher’s conduct demonstrated poor judgment on his part, the Board made no finding that Braddock’s effectiveness with the school system had been impaired by virtue of the three incidents with which he was charged. As this court noted in Wray v. Dept, of Prof. Regulation, 435 So.2d 312, 315 (Fla. 1st DCA 1983), even if the effectiveness issue had been properly charged as a violation, there still must be competent substantial evidence on that issue in the record to support a finding of guilty. Here, there was no evidence or finding that Braddock’s effectiveness as a teacher and coach was diminished or impaired in any way.

For the foregoing reasons we have determined that the School Board’s order dismissing Braddock was not supported by competent substantial evidence. Therefore, the order dismissing Braddock is REVERSED.

BOOTH and SHIVERS, JJ., concur.

ON MOTION FOR REHEARING

JO ANOS, Judge.

Appellees have petitioned for rehearing pursuant to Florida Rules of Appellate Procedure 9.330(a), and urge that the court may have overlooked the following:

(1) that section 231.36(6), Florida Statutes, was the basis for Braddock’s dismissal and not the corresponding Rule, and
(2) that Superintendent Marsh, when asked whether in his opinion the conduct complained of impaired Braddock’s effectiveness as a teacher, replied—
“I believe it is serious enough to impair his effectiveness as a teacher in the system, sir.”

As to point one, counsel for appellant correctly points out that in the formal statement of charges, the School Board specifically rejected as ground for dismissal any charge that appellant had exploited a professional relationship with a student for personal gain or advantage, finding no competent substantial evidence to support such a charge. Instead, the Board adopted the charge that appellant’s misconduct was so serious that it impaired his effectiveness as a teacher. The panel specifically addressed this point, finding the impaired effectiveness charge to be a proper ground for dismissal. The panel’s opinion did not overlook the statutory basis for dismissal, but the panel’s ruling necessarily addressed the formal ground adopted by the Board upon which it based its dismissal.

As to point two, Superintendent Marsh’s opinion regarding the alleged impaired effectiveness of appellant as a teacher does not, without more, constitute competent substantial evidence to support dismissal. This testimony was not overlooked, but was not specifically addressed in the opinion for this reason.

Superintendent Marsh was properly qualified as an expert. During the hearing, Superintendent Marsh was asked:

Do you have an opinion upon your knowledge of both the code and the criteria as to whether or not the conduct of Mr. Braddock as related to you, if true, so seriously impairs — is a violation so serious to impair his effectiveness within the school system?

The reply was:

I believe it is serious enough to impair his effectiveness as a teacher in the system, sir. (e.s.)

During cross examination on this statement, Superintendent Marsh was asked what appellant had violated in the Code of Ethics. What evolved was that Superintendent Marsh’s charge of misconduct was based on his opinion that appellant took advantage of the professional relationship. This definition of misconduct was specifically rejected by the Board and is so noted in the panel’s.opinion.

In Arkin Construction Company v. Simpkins, 99 So.2d 557, 561 (Fla.1957), the court said:

It is elementary that the conclusion or opinion of an expert witness based on facts or inferences not supported by the evidence in a cause has no evidential value. It is equally well settled that the basis for a conclusion cannot be deduced or inferred from the conclusion itself. The opinion of the expert cannot constitute proof of the existence of the facts necessary to the support of the opinion, (e.s.)

Accord: R.P. Hewitt & Associates of Fla. v. McKimie, 416 So.2d 1230, 1232 n. 1 (Fla. 1st DCA 1982); Victoria Hospital v. Perez, 395 So.2d 1165, 1167 (Fla. 1st DCA 1981); D'Avila, Inc. v. Mesa, 381 So.2d 1172, 1173 (Fla. 1st DCA 1980). All of the cited cases are workers’ compensation cases, but the principle regarding expert testimony is applicable in any proceeding involving an expert witness.

Superintendent Marsh’s opinion was not phrased as a conclusion, i.e., he stated the conduct is serious enough to impair effectiveness. He did not state that in fact appellant’s effectiveness had been impaired. On cross examination an expert is required to specify the facts or data upon which he bases his opinion. 24 Fla.Jur.2d Evidence & Witnesses § 667 (1981). Superintendent Marsh, on cross examination, testified that in his opinion appellant took advantage of the professional relationship. The Board specifically found that the evidence did not support a charge of exploitation of the professional relationship. Since the Board as trier of fact expressly rejected the facts relied upon by Superintendent Marsh to support his opinion that appellant’s conduct was serious enough to impair his effectiveness, Superintendent Marsh’s opinion has no evidential value. The panel did not overlook any evidence— rather, there was a finding of no competent substantial evidence to support the dismissal. Since the basis for Superintendent Marsh’s opinion was rejected by the Board, we deny the Petition for Rehearing. The court did not overlook the points raised by appellees. These points were considered by the panel, although they were not addressed with particularity in the opinion.

Appellees’ Petition for Rehearing is DENIED.

BOOTH and SHIVERS, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Mary CUEVAS, Appellant, v. POTAMKIN DODGE, INC., a Florida corporation, Appellee.
    No. 83-2787.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    As Amended on Denial of Rehearing Sept. 28, 1984.

      Alan R. Soven, North Miami, for appellant.
    Heitner & Rosenfeld and Allan M. Stein, North Miami Beach, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

After Ms. Cuevas discovered that the 1982 Charger she had purchased from Po-tamkin Dodge as a “demonstrator” had, among other things, been involved in a serious, but unrevealed accident and that its odometer had been turned back, she sued the dealer for compensatory and punitive damages in the Dade County Circuit Court. She asserted claims of fraud and misrepresentation, breach of contract, and violations of the Florida deceptive and unfair trade practices act (FDUFTPA), popularly known as the Little FTC Act, Sec. 501.201, et seq., Fla.Stat. (1981). In connection with that count, she specifically sought attorney’s fees, as authorized by Sec. bOl^K^l--!). Potamkin met the complaint with the contention that the entire matter was subject to the following provision of the “retail buyers order” for the Charger which had been executed by both parties:

12. Any controversy or claim arising out of, or relating to this agreement, or a breach thereof, shall be settled by arbitration under the laws of the State of Florida, in accordance with the rules then in force of the American Arbitration Association, and any judgement [sic] upon the award rendered may be entered in any court having jurisdiction thereof.

In an order which Ms. Cuevas apparently did not and certainly does not challenge in any way, the trial court accepted this position, and, as it were, referred the action to arbitration.

Ms. Cuevas then initiated that process by filing a complaint with the American Arbitration Association which, inter alia, demanded the damages sought in the circuit court complaint, which was attached, and separately reiterated the claim for attorney’s fees under Sec. 501.2105. After hearing, the arbitrator, on August 10,1983, entered an award requiring Potamkin to pay Cuevas

the sum of TWO THOUSAND DOLLARS AND NO CENTS ($2,000.00) in compensatory damages; THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) in punitive damage[s]; SIX HUNDRED DOLLARS AND NO CENTS ($600.00) for breach of contract, plus reasonable attorneys fees and costs.

On September 13, 1983, Ms. Cuevas moved in the circuit court to confirm the award and to assess her attorney’s fees and costs. Before the motion could be heard, Potam-kin paid.the $5,600.00, leaving the attorney’s fee issued in dispute. In the order now on review, the trial judge denied Ms. Cuevas’ application which was for the fees earned by her counsel in the entire representation.

Notwithstanding that one of the underlying bases for the plaintiff’s recovery was a claim under a statute which explicitly provides for a fee award to the victorious side, we agree that no fees are available in the present circumstances, essentially because Ms. Cuevas’ success was achieved, not as the statute says, “after judgment in the trial court,” but through the arbitration process to which, it must be taken on this record, she had voluntarily agreed. The conclusion is required, as the trial judge ruled, by what we regard as the controlling case of Beach Resorts International, Inc. v. Clarmac Marine Construction Co., 339 So.2d 689 (Fla. 2d DCA 1976). There, the court denied fees in a mechanics’ lien foreclosure proceeding, although the applicable statute of course provides for them, on the ground-that the claimant had, as here, won its case in arbitration. Both this court, and the first and fourth districts have followed the holding of Beach Resorts and its dual rationale that the “nature” of such a recovery is in arbitration, rather than the litigation contemplated by the statute; and that therefore a party who enters into an arbitration agreement which does not itself provide for fees, which are excluded by the governing Florida arbitration code, Sec. 682.11, Fla.Stat. (1981), may not become entitled to their recovery simply by filing a presumably unnecessary complaint in the circuit court. Heyman v. Vonelli, 413 So.2d 1254 (Fla. 3d DCA 1982); McDaniel v. Berhalter, 405 So.2d 1027 (Fla. 4th DCA 1981); Oakdale Park Ltd. v. Byrd, 346 So.2d 648 (Fla. 1st DCA 1977). As to the issue involved on this appeal — the entitlement to statutory fees when recovery is effected in arbitration — we are unable meaningfully to distinguish these cases from the present one.

The appellant also suggests that Po-tamkin’s failure to make application to set aside that portion of the arbitration award which purported specifically to assess a reasonable attorney’s fee bars its later assertion to the contrary under Secs. 682.12 and 682.13(2), Fla.Stat. (1981). Since, however, as we have seen, the arbitrator lacked legal authority to make such an award in the first instance, see also, Loxahatchee River Environmental Control District v. Guy Villa & Sons, Inc., 371 So.2d 111 (Fla. 4th DCA 1979), cert. denied, 378 So.2d 346 (Fla.1979), we reject that position on the authority of Meade v. Lumbermens Mutual Casualty Co., 423 So.2d 908 (Fla.1982), overruling Travelers Inc. Co. v. Allen, 356 So.2d 1287 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 893 (Fla.1978), upon which Ms. Cuevas has almost exclusively relied.

Affirmed.

      .501.2105 Attorney's fees
      (1) In any civil litigation resulting from a consumer transaction involving a violation of this part, except as provided in subsection (5), the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney’s fees and costs from the non-prevailing party.
      (2) The attorney for the prevailing party shall submit a sworn affidavit of his time spent on the case and his costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
      (3) The trial judge shall award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
      (4) Any award of attorney’s fees or costs shall become a part of the judgment and subject to execution as the law allows.

      . See Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980).

      . See note 7, infra, and accompanying text.

      . Id.

      . We note also that Beach Resorts has become a leading case throughout the country on the issue. Floors, Inc. v. B.G. Danis of New England, Inc., 380 Mass. 91, 401 N.E.2d 839 (1979); Harris v. Dyer, 292 Or. 233, 637 P.2d 918 (1981); accord Bingham County Commission v. Interstate Electric Co., 105 Idaho 36, 665 P.2d 1046 (1983); cf. H.R.H. Prince Ltc. Faisal M. Saud v. Batson-Cook Co., 161 Ga.App. 219, 291 S.E.2d 249 (1982).

      . "Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire's expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” [e.s.]

      . Since the plaintiff has not challenged the arbitrability vel non of the entire controversy, see also Heyman v. Vonelli, 413 So.2d at 1255, we do not consider whether the Little FTC claim was not in fact properly submitted to arbitration either because (a) correctly interpreted as a contract of adhesion prepared by the car dealer (as opposed to the arms-length commercial transactions involved in the mechanics’ lien cases), the arbitration clause in the "retail buyers order" should not be construed to include it, United States v. Seckinger, 397 U.S. 203, 208, 210, 90 S.Ct. 880, 884, 25 L.Ed.2d 224, 235 (1970); 3 A. Corbin on Contracts § 559 (Supp. 1984); Mike Bradford & Co., Inc. v. Gulf States Steel Co., Inc., 184 So.2d 911 (Fla. 3d DCA 1966), or (b) as a matter of policy, a statutory claim which involves a matter of public concern for the rights of the consumer (as perhaps opposed to the mechanics’ lien law) may not be arbitrated no matter what the parties agree. See generally, Sabates v. International Medical Centers, Inc., 450 So.2d 514 (Fla. 3d DCA, 1984); Mike Bradford & Co., Inc. v. Gulf States Steel Co., supra. Nor, all the more obviously, assuming the FDUFTPA claim is non-arbitrable but the mere contract claim is, do we consider the relationship between the issues in the two proceedings or the order in which they should be tried. See Post Tensioned Engineering Corp. v. Fairway Plaza Associates, 412 So.2d 871 (Fla. 3d DCA 1982), rev. denied, 419 So.2d 1197 (Fla.1982), appeal after remand, 429 So.2d 1212 (Fla. 3d DCA 1983).

      . Ms. Cuevas has proceeded on an "all-or-nothing" basis both in the trial court and on appeal and had made no contention that she may be entitled only to that portion of the fees relating to her lawyer's attempt to enforce the award in the circuit court, as opposed to those involved in the arbitration process, cf. Heyman; Beach Resorts, supra. We thus have no occasion to decide her entitlement to those fees (and no factual basis upon which to make such a differentiation). 3 Fla.Jur.2d Appellate Review §§ 92, 199 (1978). It is to be noted, however, in opposition to any such claim, that, unlike the situation in Heyman, supra, Potamkin paid the award without the necessity of the entry of an order of confirmation under the arbitration code, and that there was therefore no equivalent to a "judgment in the trial court” as required as a precondition to fees under Sec. 501.2105(1) itself. See note 1, supra; Nolan v. Altman, 449 So.2d 898, 900-01 (Fla. 1st DCA 1984).


author: BASKIN, Judge.

text:
    Mike SCHWADEL and Peter Schwadel, individually, Appellants, v. Hy UCHITEL, Maurice Uchitel, HJU Sales & Investments, Inc., a Florida corporation Southern Caterers of North Bay Village, Inc., a Florida corporation, d/b/a “the Place for Steak”, Southern Caterers of 79th Street, Inc., a. Florida corporation d/b/a “Nick and Arthur’s”, Lindy’s of Omni, Inc., a Florida corporation, Sheinin Seafood Distributors, Inc., a Florida corporation, J & J International Enterprises, Inc., a Florida corporation, Chuck Wagon Bar-B-Q, Inc., a Florida corporation, and Bay Point Motors, Inc., a Florida corporation, jointly and severally, Appellees.
    No. 84-315.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    On Motion for Clarification and Denial of Rehearing Sept. 18, 1984.

      Richard & Richard and Dennis Alan Richard, Miami, for appellants.
    Evan J. Langbein, Miami, Frank, Strel-kow & Gay, North Bay Village, for appel-lees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

This appeal arises out of the efforts of corporate stockholders, Mike Schwadel and Peter Schwadel, to prevent corporate president, Hy Uchitel, from disposing of “The Place for Steak,” the last major corporate asset of H.J.U. Sales & Investments, Inc. (HJU). The trial court entered an order dissolving a temporary restraining order and a preliminary injunction and denying a permanent injunction. We reverse.

Peter Schwadel is a major stockholder of HJU. Mike Schwadel is a major stockholder and director of HJU. Hy Uchitel is a major stockholder, director and chief executive officer of HJU. HJU was incorporated for the purpose of acquiring, managing, and participating in business ventures in South Florida, primarily, restaurants. During the course of HJU’s existence, it has acquired, through its various subsidiaries, real and personal property, including several restaurants: Nick & Arthur’s, Lindy’s of Omni, and The Place for Steak. By 1983, HJU had divested itself of most of its major corporate assets, but had retained The Place for Steak. In 1983, without pri- or notice to appellants, Hy Uchitel entered into a contract for the sale of the last major corporate asset, The Place for Steak; also included in the proposed sale were Uchitel’s personal residence and a Rolls Royce automobile belonging to the corporation. Mike Schwadel and his son, Peter Schwadel, filed suit against Hy Uchitel seeking injunctive relief to prevent the sale of The Place for Steak on the ground that stockholders had not been furnished prior written notice in accordance with section 607.241, Florida Statutes (1983).

The complaint alleged that Hy Uchitel attempted to dissipate HJU corporate assets and to diminish appellants’ interests in the corporation by selling the last major corporate asset for less than fair market value in a transaction that had not been negotiated at arm’s length. The trial court entered a temporary restraining order and a preliminary injunction, with bond, enjoining the sale of The Place for Steak but, after conducting a hearing on the issuance of a permanent injunction, dissolved the preliminary injunction, discharged the bond and denied a permanent injunction.

Mike Schwadel and Peter Schwadel assert on appeal that they are entitled to injunctive relief to prevent the sale of the last corporate asset. They argue that the sale would violate the statutory rights they enjoy as shareholders and directors, namely, the right to receive prior notice, to object to the terms of the transaction, and to recover the value of their shares. We agree.

Section 607.241, Fla.Stat. (1983) provides:
A sale, lease, exchange, or other disposition of all, or substantially all, the property and assets of a corporation, with or without the good will, may be made upon such terms and conditions and for such consideration ... as may be authorized in the following manner:
(1) The board of directors shall adopt a resolution recommending such sale, lease, exchange, or other disposition and directing the submission thereof to a vote at a meeting of shareholders, which may be either an annual or a special meeting.
(2) Written notice shall be given to each shareholder of record, whether or not entitled to vote at such meeting, in the manner provided in this chapter for the giving of notice of meetings of shareholders and, whether the meeting be an annual or a special meeting, shall state that the purpose, or one of the purposes, is to consider the proposed sale, lease, exchange, or other disposition. The notice shall fairly summarize the material features of the proposed transaction and shall contain a clear and concise statement that, if the sale, lease, exchange, or other disposition is effected, shareholders dissenting therefrom are entitled, if they file a written objection to such transaction before the vote of the shareholders is taken thereon and comply with the further provisions of this chapter regarding the rights of dissenting shareholders, to be paid the fair value of their shares.
(3) At such meeting, the shareholders may authorize such sale, lease, exchange, or other disposition and may fix, or may authorize the board of directors to fix, any or all of the terms and conditions thereof and the consideration to be received by the corporation therefor. Such authorization shall require the affirmative vote of the holders of a majority of the shares of the corporation entitled to vote thereon ....

The prerequisites of section 607.241 must be satisfied when a contemplated sale of major assets of a corporation will substantially limit the corporate business. See Prince George’s Country Club v. Edward R. Carr, Inc., 235 Md. 591, 202 A.2d 354 (1964); Bean v. Commercial Securities Co., 25 Tenn.App. 254, 156 S.W.2d 338 (1941); 6A W. Fletcher, Cyclopedia of the Law of Private Corporations § 2949.4 (rev.perm.ed. 1981 & Supp.1983). The Place for Steak was the sole asset of Southern Caterers of North Bay Village, Inc., the wholly owned subsidiary of HJU, and the last of several restaurants owned by parent corporation HJU. It is undisputed that the fundamental purpose in forming the parent corporation and in operating the corporate enterprise through various subsidiaries was, and continues to be, to engage in the restaurant business. Thus, the sale of The Place for Steak constitutes a sale of “substantially all” the corporate assets and is subject to the statutory rights and protections extended to stockholders under Florida’s shareholder “consent” provisions governing such transactions. See Prince George’s Country Club; Bean.

The purpose of a shareholder “consent” provision is “to protect the shareholders from fundamental change, or more specifically to protect the shareholders from the destruction of the means to accomplish the purposes or objects for which the corporation was incorporated and actually performs.” 6A W. Fletcher, Cyclopedia of the Law of Private Corporations § 2949.2 (rev.perm.ed. 1981 & Supp.1983). When Hy Uchitel entered into a contract for the sale of the last major corporate asset, he violated shareholders’ statutory rights to receive prior notice to consider the transaction and effectively barred their participation in a decision which fundamentally changes the nature of the corporation. This court must therefore decide whether injunctive relief is appropriate under these circumstances.

The general rule is that a court of equity is empowered to issue injunctive relief to prevent officers or directors of a corporation from wrongfully dealing with corporate assets and to prevent such wrongful actions from infringing upon shareholders’ voting rights. See Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 144 So. 674 (1932); Penn-Texas Corp. v. Niles-Bement-Pond Co., 34 N.J.Super. 373, 112 A.2d 302 (1955). The proposed sale of the remaining corporate asset constituted a breach of Uchitel's fiduciary duties to the corporation and to its stockholders, see Snead v. United States Trucking Corp., 380 So.2d 1075 (Fla. 1st DCA), review denied, 389 So.2d 1116 (Fla.1980), and deprived shareholders of their statutory rights to notice and to vote prior to the transfer of the last corporate asset. In-junctive relief is appropriate because appellants have a clear legal right to prior notice and a vote, and legal remedies are inadequate to prevent the irreparable harm that would result from Uchitel’s unilateral decision to change the fundamental nature of the corporate enterprise. See Russell v. Florida Ranch Lands, Inc., 414 So.2d 1178 (Fla. 5th DCA 1982); Oxford International Bank & Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla. 3d DCA 1979). An award of damages would not compensate the shareholders for the destruction of the corporation caused by the transfer of the last major corporate asset. The pending sale is therefore enjoined.

Reversed and remanded for further proceedings consistent with this opinion.

ON MOTION FOR CLARIFICATION

BASKIN, Judge.

Upon remand, the trial court is directed to conduct a hearing to determine the propriety of discharging the notices of lis pendens. See Cacaro v. Swan, 394 So.2d 538 (Fla. 4th DCA), review dismissed, 402 So.2d 608 (Fla.1981); Dominguez v. Lopez, 346 So.2d 627 (Fla. 3d DCA 1977).


author: RYDER, Chief Judge.

text:
    MERCEDES-BENZ OF NORTH AMERICA, INC., a Delaware corporation, Appellant, v. The DEPARTMENT OF MOTOR VEHICLES OF the STATE of Florida, for the Use and Benefit of FIFTH AVENUE MOTORS, LTD., a Florida corporation, d/b/a International Motor Cars, Ltd., and Dwayne Hawkins, an individual; Fifth Avenue Motors, Ltd., a Florida corporation, d/b/a International Motor Cars, Ltd.; Dwayne Hawkins, an individual, Appellees.
    No. 83-895.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.
    Rehearing Denied Sept. 7, 1984.

      W.O. Birchfield and Dennis E. Hayes of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellant.
    J. Robert McClure, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellee Fifth Ave. Motors, Ltd.
    Joseph W. Letzer of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., for appellee Dwayne Hawkins.
   RYDER, Chief Judge.

This appeal involves the application of the New Jersey “Franchise Practices Act,” sections 56:10-1 — 56:10-10, New Jersey Statutes (1971), to a case involving an attempt by the original automobile franchisee to transfer the franchise to a third party. In this appeal, Mercedes-Benz of North America, Inc. (MBNA), a New Jersey franchisor and the defendant below in an action to compel a franchise transfer and to recover damages, seeks review of several rulings relating to the trial court’s determination that MBNA granted approval to the transfer of its franchise to the third party as a matter of law. MBNA also challenges the permanent injunction compelling MBNA to immediately enter into a binding Mercedes-Benz standard car dealer agreement with the third party.

On September 24, 1976, appellee Fifth Avenue Motors, Ltd., d/b/a International Motor Cars, Ltd., a Florida corporation (Fifth Avenue), entered into a Mercedes-Benz standard dealer agreement with MBNA for a St. Petersburg franchise. Subsequently, on November 1, 1978, Fifth Avenue entered into an “Assets Purchase Agreement” (Agreement) with appellee Dwayne Hawkins (Hawkins), the third party. In this Agreement, Fifth Avenue agreed to sell and Hawkins agreed to buy the fixed assets located at Fifth Avenue’s place of business which included, but was not limited to, “all furniture, fixtures, and machinery, and shop equipment.” The Agreement conditioned Hawkins’ obligations upon his being able to enter, into a dealer agreement with MBNA and another car franchisor. It was also necessary that Hawkins procure a lease on the premises currently occupied by Fifth Avenue. The conditions had to be met on or before the closing date which was to be within ten days after Hawkins had entered into the required dealer agreements.

Also on November 1, an officer of Fifth Avenue notified MBNA by telephone of its desire to transfer the franchise to Hawkins. A letter to this effect was mailed to MBNA on this date. The letter stated that Fifth Avenue had entered into the buy-sell agreement with Hawkins, who was “an extremely qualified successor” and “[a] man of impeccable integrity and an astute, respected businessman.” On November 2, MBNA sent Fifth Avenue a telegram which stated: “By your actions the Mercedes-Benz dealer agreement between us has been terminated. Letter follow. We will entertain no further proposals to sell the Mercedes-Benz franchise.” Thereafter, Fifth Avenue sent telegrams to MBNA and contacted one of their representatives in order to request a personal meeting to discuss the situation. The MBNA representative told one of Fifth Avenue’s representatives that the telegram was self-explanatory, there would be no purpose in a personal visit, and he could not further discuss the matter.

On November 27, 1978, MBNA received, through Fifth Avenue, a letter from Hawkins also requesting a meeting to discuss the proposed transfer and a packet of information. This packet included a copy of the buy-sell agreement, the resignation of Fifth Avenue contingent upon the appointment of Hawkins as the new dealer, the short term lease in Hawkins’ favor on the present facilities, a letter of recommendation of Hawkins from a bank vice president, a resume of a proposed manager, a personal financial statement of the manager, a personal financial statement of Hawkins, and a financial statement of Hawkins’ current dealership franchises.

After little activity during the remainder of 1978, an MBNA vice-president wrote Fifth Avenue on January 5, 1979 and indicated that its failure to comply with the terms of the dealer agreement caused MBNA to send the notice of termination in accordance with the provisions of Florida law. Shortly thereafter, Hawkins wrote to an MBNA regional officer requesting a personal meeting with the president of MBNA. 'Fifth Avenue then wrote MBNA restating their desire to transfer the franchise to Hawkins and noting that the refusal to discuss the authorization constituted bad faith. On January 18, the vice-president of MBNA responded to Fifth Avenue’s letter and indicated that Fifth Avenue was not entitled to designate a transferee under either Florida law or the standard dealer agreement. The letter added that MBNA had not refused to consider Hawkins as a possible transferee and that Hawkins could submit an application to the regional office for consideration. The letter further indicated that Hawkins’ application should contain much more detail than was shown in the proposal submitted earlier because it did not detail capital, ownership, management, staffing or operation plans that had been formulated.

On February 9,1979, Hawkins responded to the last MBNA letter and indicated his willingness to detail the necessary information if MBNA would let him know exactly what was needed. A personal meeting was again requested. Hawkins apparently never received a response.

Eventually, on July 1, 1980, after MBNA had revised its standard dealer agreement (which included a provision that MBNA would not unreasonably withhold consent to a franchise sale or transfer), Fifth Avenue resubmitted its request to transfer the franchise to Hawkins. On July 21, MBNA’s corporate attorney sent a letter to Fifth Avenue indicating the request for transfer of the dealer agreement was of no effect because the agreement had been terminated by MBNA. The letter concluded that although MBNA was required by operation of law to continue to do business with Fifth Avenue it was not required to approve the attempt to transfer the dealer agreement. Prior to this time, on July 8, 1980, Fifth Avenue and Hawkins, suing in their own names and on behalf of the State Department of Motor Vehicles, filed a complaint against MBNA to compel a transfer of the franchise and recover damages. Subsequently, the trial court granted a motion to dismiss finding that Florida law and not New Jersey law controlled the resolution of the issues raised by the complaint. On appeal, however, this court reversed that ruling holding that New Jersey law should be applied pursuant to the “choice of law” provision in the franchise agreement between MBNA and Fifth Avenue. See Department of Motor Vehicles v. Mercedes-Benz of North America, Inc., 408 So.2d 627 (Fla. 2d DCA 1981). We remanded the case for reinstatement of all counts except the count asserting relief pursuant to section 320.643, Florida Statutes (Supp. 1980). Id. at 630.

On remand, Fifth Avenue and Hawkins filed a new complaint which was amended three times. In Count I of the third amended complaint, Fifth Avenue and Hawkins sought to compel a franchise transfer pursuant to section 56:10-6, New Jersey Statutes (1971). In Count II, Fifth Avenue and Hawkins sought to compel transfer of the franchise on the basis of the 1980 change in the Mercedes-Benz standard dealer agreement. In Count III, Fifth Avenue and Hawkins sought to compel a transfer because MBNA’s refusal to approve Hawkins as a transferee violated implied common law duties of good faith and commercial reasonableness. Hawkins sought to recover both lost profits and punitive damages in each of the first three counts. Finally, in Count IV, Fifth Avenue and Hawkins sought declaratory relief so that the rights and obligations of the parties involved could be established.

MBNA filed its answer and numerous affirmative defenses. As one of its denials, MBNA alleged it owed no duty of good faith or commercial reasonableness to either Fifth Avenue or Hawkins, and, furthermore, did not violate any duty which might have been owed to these parties. MBNA stated Fifth Avenue’s failure to give proper statutory notice of the proposed sale as required by New Jersey law (§ 56:10-6) was a defense to the action to compel. MBNA also asserted that section 56:10-9, New Jersey Statutes (1971), was a defense to the action to compel transfer because Fifth Avenue was in substantial noncompliance with the requirements imposed by the existing franchise agreement at the time it gave notice of its intention to transfer the franchise. MBNA stated as another defense that it had timely and properly rejected Hawkins under New Jersey law as the proposed transferee because he was unqualified to run a Mercedes-Benz franchise. In its final affirmative defense, MBNA asserted the 1980 amendment to the Mercedes-Benz standard dealer agreement could not be a basis of a cause of action (Count II) because it did not become effective until after Fifth Avenue and Hawkins filed the first pleading against MBNA on January 80, 1979, and, furthermore, because MBNA never entered into the 1980 franchise agreement with either party.

After several motions were filed, the trial court agreed to bifurcate the issues concerning injunctive relief from the issues of damages. Shortly thereafter, the trial court entered an order striking several of MBNA’s affirmative defenses including its affirmative defense asserting section 56:10-9 as a bar to the action to compel transfer of the franchise. The court ruled Fifth Avenue’s substantial noncompliance with the terms of the franchise agreement was not a bar to any action brought by the franchise or proposed transferee. In doing so, the court explained: “The court agrees that the language of N.J.Stat. § 56:10-6 is clear, unequivocal, and self-executing — if the franchisor does not reply within the specified 60 days his approval is deemed granted. This language does not limit its efficacy where the franchisee is in noncompliance with its agreement with the manufacturer.”

The trial court also ruled MBNA would be precluded from discovering and introducing any evidence at trial concerning this affirmative defense. The court also struck MBNA’s final defense relating to the impact of the 1980 amendment, reasoning that under section 320.641(3), Florida Statutes (1971), all beneficial changes accrue to the benefit of the continuing dealer, Fifth Avenue.

After a two-day nonjury trial on the issues relating to injunctive relief, the trial court entered an order which made numerous findings of fact and conclusions of law. With respect to Count I, the trial court ruled Fifth Avenue had complied with the notice provisions of section 56:10-6 and all conditions of the “Asset Purchase Agreement” were either met or waived by Fifth Avenue and Hawkins, and MBNA was es-topped because of its actions in not asserting the failure of the conditions. The trial court further ruled that MBNA received proper notification within the meaning of section 56:10-6 no later than November 27, 1978, and that Hawkins agreed in writing to comply with the requirements of the franchise agreement also on that date. The trial court also ruled that MBNA did not advise Fifth Avenue in accordance with section 56:10-6 within 60 days of receipt of the unacceptability of Hawkins as the transferee. The court added that MBNA’s attempted termination on November 2, 1978, was ineffective because MBNA failed to comply with the provisions for termination under section 56:10-5. The court concluded that MBNA’s approval of Hawkins as the transferee was deemed granted as a matter of law because of MBNA’s failure to properly reject Hawkins in accordance with section 56:10-6.

With respect to Count II, the trial court ruled the addition of the “unreasonably withholding consent” language of the 1980 revised Mercedes-Benz standard dealer agreement inured to the benefit of both Fifth Avenue and Hawkins under section 320.641(3), Florida Statutes.

With respect to Count III, the trial court ruled: (1) under the common law relating to an assignment of an interest MBNA was under a duty not to unreasonably or in bad faith refuse to consider Hawkins and his qualifications with respect to denying or accepting him as a transferee, but (2) MBNA acted commercially unreasonably and in bad faith by refusing to consider Hawkins because (a) MBNA believed it had no duty to consider Hawkins and wished to punish Fifth Avenue by not accepting their candidate and/or (b) MBNA desired to give the franchise to some other favored candidate.

Shortly after entering the above order containing the findings of fact and conclusions of law, the trial court entered an order directing MBNA to enter into a standard dealership agreement with Hawkins and transport to him, temporarily, twenty cars per month. After motions for rehearings were filed and denied, MBNA filed this appeal and sought and received a stay of the latter order upon posting a sufficient bond.

The issues which merit our attention are as follows: (1) whether the trial court erred in striking MBNA’s defense that section 56:10-9 can be asserted as a defense to an action brought to compel a transfer of a franchise; (2) whether the trial court erred in ruling that MBNA breached a common law duty of commercial reasonability and good faith with respect to its decision not to affirmatively approve Hawkins as the new franchisee; (3) and whether the trial court erred in striking MBNA’s affirmative defense that the 1980 Mercedes-Benz revised standard dealer agreement was of no benefit to Fifth Avenue and Hawkins.

The provisions of the New Jersey “Franchise Practices Act” which are relevant to the issues before us are:

Section 56:10-5. Termination of franchise; notice; grounds.
It shall be a violation of this act for any franchisor directly or indirectly through any officer, agent, or employee to terminate, cancel, or fail to renew a franchise without having first given written notice setting forth all the reasons for such termination, cancellation, or intent not to renew to the franchisee at least 60 days in advance of such termination, cancellation, or failure to renew, except (1) where the alleged grounds are voluntary abandonment by the franchisee of the franchise relationship in which event the aforementioned written notice may be given 15 days in advance of such termination, cancellation, or failure to renew; (2) where the alleged grounds are the conviction of the franchisee in a court of competent jurisdiction of an indictable offense directly related to the business conducted pursuant to the franchise in which event the aforementioned termination, cancellation or failure to renew may be effective immediately upon the delivery and receipt of written notice of same at any time following the aforementioned conviction. It shall be a violation of this act for a franchisor to terminate, cancel or fail to renew a franchise without good cause. For the purposes of this act, good cause for terminating, cancelling, or failing to renew a franchise shall be limited to failure by the franchisee to substantially comply with those requirements imposed upon him by the franchise.
Section 56:10-6. Transfer of franchise; notice; approval; agreement of compliance.
It shall be a violation of this act for any franchisee to transfer, assign or sell a franchise or interest therein to another person unless the franchisee shall first notify the franchisor of such intention by written notice setting forth in the notice of intent the prospective transferee’s name, address, statement of financial qualification and business experience during the previous 5 years. The franchisor shall within 60 days after receipt of such notice either approve in writing to the franchisee such sale to proposed transferee or by written notice advise the franchisee of the unacceptability of the proposed transferee setting forth material reasons relating to the character, financial ability or business experience of the proposed transferee. If the franchisor does not reply within the specified 60 days, his approval is deemed granted. No such transfer, assignment or sale hereunder shall be valid unless the transferee agrees in writing to comply with all the requirements of the franchise then in effect.
Section 56:10-9. Action against franchisor; defenses.
It shall be a defense for a franchisor to any action brought under this act by a franchisee, if it be shown that said franchisee has failed to substantially comply with requirements imposed by the franchise and other agreements ancillary or collateral thereto.
Section 56:10-10. Action against franchisor; damages; injunction; costs. Any franchisee may bring an action against its franchisor for violation of this act in the Superior Court of the State of New Jersey to recover damages sustained by reason of any violation of this act and, where appropriate, shall be entitled to injunctive relief. Such franchisee, if successful, shall also be entitled to the costs of the action including but not limited to reasonable attorney’s fees.

ISSUE I.

Although a plain and ordinary reading of section 56:10-9 would seem to enable a franchisor such as MBNA to assert the original franchisee’s substantial noncompliance with the franchise agreement as a defense to an action brought to compel a transfer of the franchise, we agree with the trial court’s ruling and rationale with respect to this issue because to give section 56:10-9 the literal interpretation it suggests would essentially render useless the “if the franchisor does not reply within the specified 60 days, his approval is deemed granted” language of section 56:10-6 and would undo the New Jersey legislature’s attempt to correct the unequal bargaining power between franchisors and franchisees. Westfield Centre Service, Inc. v. Cities Service Oil Co., 86 N.J. 453, 432 A.2d 48 (1981). Courts are not required to give a statutory provision a literal meaning where to do so would result in an almost absurd interpretation. Cf. Griffis v. State, 356 So.2d 297 (Fla.1978); Austin v. State ex rel. Christian, 310 So.2d 289 (Fla. 1975).

In reaching our conclusion, we adopt the trial court’s explanation of why it struck this particular affirmative defense. The trial court stated:

[Pjlaintiffs [Fifth Avenue and Hawkins] assert that application of N.J.Stat. § 56:10-9 to an action to compel franchise transfer pursuant to NJ.Stat. § 56:10-6 is wholly inconsistent with the terms and intent of the New Jersey and Florida statutory schemes. Plaintiffs assert that MBNA seeks to punish Hawkins for an alleged breach by Fifth Avenue of its Mercedes-Benz dealer agreement. Plaintiffs assert that the New Jersey Franchise Practices Act (like its Florida counterpart, Fla.Stat. § 320.60 et seq. (1971)) was enacted in order to halt the harsh practices large manufacturers had inflicted upon franchisees. See, e.g., DMV v. MBNA, 408 So.2d 627, 630 (Fla. 2d DCA 1981). The statute was not intended to allow such practices to continue under statutory sanction. (Citation omitted).
In this regard, plaintiffs have argued that the New Jersey legislature did not intend that MBNA should be able, in effect, to destroy the franchise through idleness by blocking an approved sale to a dealer of good qualifications by means of a notice of termination. Plaintiffs assert that the New Jersey transfer statute is a self-contained statute designed to encourage uninhibited transfers: [quotation from Westfield Centre Service at 57-58 omitted].
Plaintiffs assert that the transfer statute allows the franchisee to recoup his substantial investment in the franchise while accommodating the legitimate business interest of a franchisor by insuring that the transferee is qualified. They assert that assuming arguendo that Fifth Avenue was a “bad dealer”, it is the intent and purpose of 56:10-6 to encourage such a dealer to transfer its franchise to a dealer of Hawkins’ credentials. As a practical matter, the public interest would be totally ignored by an interpretation of law that expressed a preference for time consuming termination proceedings, during which the franchise would remain idle, over a transfer to a qualified dealer. Plaintiffs assert that the only interest to be served under MBNA’s interpretation is one of revenge of the manufacturer over an allegedly derelict franchisee. They contend such a motive is devoid of the New Jersey (and Florida) statutory scheme ....
Moreover, the court has reviewed the Simmons [v. General Motors Corp., 180 N.J.Super. 522, 435 A.2d 1167 (1981)] decision presented by MBNA in reaching its decision, and distinguishes that case on the basis that in Simmons the manufacturer justifiably and timely rejected the proposed transferee. In Simmons the seller and purchaser (unlike in this case) secretly concluded the sale, and upon being caught by the manufacturer misrepresented their activities. This was a substantial non-compliance with the franchise agreement and grounds for ter-mination_ Perhaps most significantly, the court fails to see how a transfer or a sale of an automotive franchise to a dealer who meets qualifications of good character, strong financial ability, and adequate business experience would be damaging to the manufacturer’s name and reputation, particularly in the situation where the franchise seller is in noncompliance [with the franchise agreement], Indeed, the court would expect the manufacturer to welcome such a change from a franchise holder that the manufacturer considers to be a dealer in substantial breach of its franchise agreement.

We wish to point out that our agreement with the trial court’s ruling with respect to the above issue may not preclude a franchisor from raising section 56:10-9 as an affirmative defense to an action brought by a franchisee for damages for failure to transfer pursuant to section 56:10-6. Moreover, it is absolutely clear that a franchisor can raise section 56:10-9 as a defense to an action brought by a franchisee to prevent a termination or an action for damages for wrongful termination.

ISSUE II.

We reverse the trial court’s ruling that MBNA had breached a common law duty of good faith and commercial reasonableness with respect to not recognizing an assignment between Fifth Avenue and Hawkins. Our examination of the record leads us to the conclusion that the actions taken by MBNA in dealing with Fifth Avenue and Hawkins did not constitute a breach of any duty that might have been owed. Simmons v. General Motors Corp., 180 N.J.Super. 522, 435 A.2d 1167 (1981).

ISSUE III.

We hold the trial court erred in striking MBNA’s affirmative defense which asserted that the 1980 revised Mercedes-Benz standard dealer agreement could not be used by Fifth Avenue or Hawkins as a basis for a cause of action to compel a transfer of the franchise. The reason for our holding is that the trial court made its determination by applying Florida law, in particular section 320.641(3). See Department of Motor Vehicles v. Mercedes-Benz of North America, supra. Accordingly, we remand this issue to the trial court so that it may reconsider, under the laws of New Jersey, what effect the revised 1980 agreement would have on Fifth Avenue’s and Hawkins’ second cause of action.

We AFFIRM the permanent injunction, but REMAND the cause for further proceedings consistent with this opinion.

DANAHY and CAMPBELL, JJ., concur.

      . In Department of Motor Vehicles v. Mercedes Benz of North America, 408 So.2d 627 (Fla. 2d DCA 1981), this court held that New Jersey law was to be applied to the action brought by appellees to compel a transfer of the franchise from the original franchisee to the proposed franchisee.

      . We note an action was not brought against'the franchisor for wrongful termination. In any event, we add that the purported notice of termination was not effective because MBNA did not comply with the provisions of section 56:10-5, New Jersey Statutes (1971).

      . One of MBNA's contentions on appeal is that Hawkins does not have independent standing to bring any causes of action under New Jersey law, including an action to compel a franchise transfer, because section 56:10-10 only allows “[a]ny franchisee” to bring an action against the franchisor for violations of the Act. Whatever the merits of this argument, MBNA failed to raise the issue below and for purposes of this appeal (the determination of the validity of the order granting the transfer) we will consider the action to compel transfer under the statute to be brought by MBNA with Hawkins as an indispensable intervening party. However, on remand, the trial court should address, the standing issue in regard to whether Hawkins can recover money damages under Count I.

      . The trial on damages had not yet occurred at the time this appeal was filed.

      . We affirm the trial court's findings of fact and conclusions of law regarding whether Fifth Avenue gave notice in accordance with the first sentence of section 56:10-6 and whether MBNA properly rejected Hawkins pursuant to the second sentence of section 56:10-6. We further affirm all other findings of fact and conclusions of law not inconsistent with this opinion.


author: HOBSON, Acting Chief Judge.

text:
    The BOARD OF TRUSTEES OF the INTERNAL IMPROVEMENT TRUST FUND OF the STATE of Florida, Appellant, v. MOBIL OIL CORPORATION, Appellee.
    No. 82-2050.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Rehearing Granted Sept. 4, 1984.

      Robert J. Beckham and James R. Hubbard of Beckham & McAliley, P.A., Jacksonville, and William C. Crenshaw of Valdes-Fauli, Richardson & Cobb, P.A., Miami, for appellant.
    Chesterfield Smith, Julian Clarkson, and Hume F. Coleman of Holland & Knight, Tallahassee, for appellee.
    Betty Steffens, General Counsel, for Governor Bob Graham, and J. Kendrick Tucker, Deputy Atty. Gen. for Atty. Gen. Jim Smith, Tallahassee, as amici curiae.
   HOBSON, Acting Chief Judge.

The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida (“Trustees”), codefendant below in a quiet title action, appeals a final summary judgment order rendered in favor of Mobil Oil Corporation (“Mobil”), plaintiff below. We affirm.

In April 1982, Mobil, a New York corporation engaged in the mining and processing of phosphate rock in Polk County, Florida, initiated an in rem action in the Circuit Court of the Tenth Judicial Circuit in and for Polk County against the Trustees and Coastal Petroleum Company (“Coastal”), a Florida corporation involved in ventures in Polk County similar to those of Mobil. Mobil’s complaint sought to quiet title to certain submerged lands coursed by the Peace River between Bartow and Fort Meade in Polk County. The Trustees, who are the trustees of state owned lands, submitted a motion to dismiss Mobil’s complaint, or, in the alternative, to stay the proceedings. Their motion in the alternative alleged that an action involving the same parties and the same title issues was pending in the Circuit Court of the Second Judicial Circuit in and for Leon County, and that, as a result, the Leon County Circuit Court had either exclusive jurisdiction to try the title issues presented, in which case a dismissal was appropriate, or exclusive venue, in which case a stay was appropriate.

The Leon County Circuit Court case referred to in the Trustees’ motion in the alternative originated several years before the Polk County Circuit Court in rem action. In September 1976, Mobil instituted a contract action against Coastal asserting that Coastal had violated a sublease issued to Mobil for oil and gas exploration upon lands located beneath the Peace River in Polk County. Coastal then filed a counterclaim alleging that Mobil had converted phosphate ore and other minerals from these leased, submerged lands, which Coastal contended were owned by the state. Coastal joined as a necessary party to this counterclaim the Trustees. Mobil subsequently filed a reply counterclaim against Coastal and the Trustees seeking a declaratory judgment to remove a cloud on the title to a parcel of submerged land similarly situated to the submerged lands at issue in the conversion claim.

Although the parcel of real estate which is the subject of Mobil’s reply counterclaim in the still pending Leon County Circuit Court proceeding is not included within the submerged lands at issue in the Polk County Circuit Court quiet title action, it is similarly situated to the submerged lands at issue in the Polk County Circuit Court case. Moreover, the title issues raised in both the reply counterclaim and the quiet title action are identical.

Mobil responded to the Trustees’ motion in the alternative by contending that the Polk County Circuit Court was the only court which could grant Mobil the complete relief it was seeking, i.e., a binding in rem decree quieting the title to the submerged lands, because, in its view, the Polk County Circuit Court was the only court which had in rem jurisdiction to try the issue of title to the Polk County real property described in Mobil’s complaint.

The Polk County Circuit Court subsequently rendered an order denying the Trustees’ motion in the alternative. The same court thereafter issued a final summary judgment order in Mobil’s favor which the Trustees now appeal.

Because the title issues presented by Mobil’s reply counterclaim in the Leon County Circuit Court case are the same as those involved in the Polk County Circuit Court action, and because service of process was first perfected in the Leon County Circuit Court case, the Trustees basically argue on appeal from the procedural angle that the Polk County Circuit Court erred by denying their motion in the alternative. In support of their stand they cite Mabie v. Garden Street Management Corp., 397 So.2d 920 (Fla.1981), for the proposition that when separate actions addressing identical issues are pending between the same parties in courts of concurrent jurisdiction, exclusive jurisdiction to try those issues lies with the court in which service of process was first effectuated. Mobil answers that Mabie's “rule of priority” is inapplicable here. It explains away Mabie by pointing out that, unlike the situation at bar, the separate actions in Mabie were “transitory” in nature, as opposed to “local” in nature. Relying on Lakeland Ideal Farm & Drainage District v. Mitchell, 97 Fla. 890, 122 So. 516, 518-19 (1929), it maintains that the common law “local action rule” requires that its suit to quiet title to the submerged lands in issue could be brought only in Polk County, the county where the lands in question are located. It thus concludes that the Polk County Circuit Court did not err in denying the Trustees’ motion in the alternative.

The Trustees construe the rule of priority’s concept of “concurrent jurisdiction” to mean that in suits serving “substantially the same purpose,” which they say is the situation regarding Mobil’s reply counterclaim in the Leon County Circuit Court proceeding and Mobil’s quiet title action in the Polk County Circuit Court case, the courts involved need not have concurrent jurisdiction over the subject matter, but need merely have concurrent jurisdiction to determine the issues. Since the Leon County Circuit Court has jurisdiction over the type of case represented by Mobil’s reply counterclaim, they conclude that the Leon County Circuit Court should have been allowed to decide the title issues to the exclusion of the Polk County Circuit Court.

The Trustees’ interpretation of the rule of priority’s concept of concurrent jurisdiction suffers from two interrelated flaws, the second of which very probably caused the first: first, it ignores that the rule does not even come into play unless the court which initially tries to exercise jurisdiction at least has subject matter jurisdiction; second, it fails to recognize that in an in rem action there are two prongs to the definition of subject matter jurisdiction.

The ultimate purpose behind the rule of priority is comity; to prevent collision and conflict in the execution of judgments by independent courts of coordinate power. If the court which first attempts to exercise jurisdiction does not have subject matter jurisdiction, it cannot be said to have concurrent jurisdiction with a court which does have subject matter jurisdiction. In such a situation, there is simply no need to invoke the rule, and, as a result, the court which does have subject matter jurisdiction is free to exercise jurisdiction and to subsequently enter a final judgment.

In Mabie, as well as in the various other eases cited by the Trustees where the rule of priority was employed, Benedict v. Foster, 300 So.2d 8, 10 (Fla.1974), Taylor v. Cooper, 60 So.2d 534, 535-36 (Fla.1952), Ullendorff v. Brown 156 Fla. 655, 24 So.2d 37, 39-40 (1945), Martinez v. Martinez, 153 Fla. 753,15 So.2d 842 (1943), DiProspero v. Shelby Mutual Insurance Co., 400 So.2d 177, 179 (Fla. 4th DCA 1981), Royal Globe Insurance Co. v. Gehl, 358 So.2d 228, 229 (Fla. 3d DCA 1978), Hogan v. Millican, 209 So.2d 716, 718 (Fla. 1st DCA 1968), and Crosley Corp. v. Hazeltine Corp., 122 F.2d 925 (3d Cir.1941), the court which first attempted to exercise jurisdiction had subject matter jurisdiction. See also Hunt v. Ganaway, 180 So.2d 495 (Fla. 1st DCA 1965), disapproved on other grounds, Mabie. More to the point, in cases involving real property where the rule was applied, the court which first tried to exercise jurisdiction had subject matter jurisdiction. See Farmers’ Loan & Trust Co. v. Lake Street Elevated Railroad Co., 177 U.S. 51, 20 S.Ct. 564, 44 L.Ed. 667 (1900); Ray v. Williams Phosphate Co., 59 Fla. 598, 52 So. 589 (1910); DiProspero; Blake v. Blake, 172 So.2d 9 (Fla. 3d DCA 1965).

Where the cause of action is in rem, as is the case regarding Mobil’s reply counterclaim, the court involved has subject matter jurisdiction only if it has 1) jurisdictional power to adjudicate the class of cases to which the cause belongs and 2) jurisdictional authority over the land which is the subject matter of.the controversy. See Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 775 (1927). Although the Leon County Circuit Court has jurisdictional authority to adjudicate the type of action represented by Mobil’s reply counterclaim, it does not have jurisdictional power over the Polk County parcel of land which is the subject matter of Mobil’s reply counterclaim.

Florida’s constitution delegated the legislature with the mandatory responsibility of dividing the state into judicial circuits along county lines. See Art. Y, § 1, Fla. Const. (1968). Acting pursuant to the command of the constitution, the legislature divided the state into twenty judicial circuits along county lines. See § 26.01, Fla.Stat. (1981). By the very act of providing for this type of division of the state into judicial circuits, the constitution clearly contemplated territorial limitations upon each circuit court. The geographical boundaries of a circuit court along county lines were designed and prescribed with a definite object in view— to constrict the extent of a circuit court’s operation and authority. Needless to say, Leon County and Polk County are in separate judicial circuits. See § 26.021.

The local action rule in Florida is that where land lies outside a circuit court’s territorial jurisdiction, and the purpose of an action is to determine the question of title to the land, as is the case regarding Mobil’s reply counterclaim, the action is local to the circuit in which the land lies. Lakeland Ideal Farm & Drainage District. See also Georgia Casualty Co. v. O’Donnell, 109 Fla. 290, 147 So. 267 (1933); Largo Land Co. v. Skipper, 98 Fla. 541,123 So. 915 (1929); George v. Gustinger, 350 So.2d 574, 575 (Fla. 3d DCA 1977); Hendry Corp. v. State Board of Trustees of the Internal Improvement Trust Fund, 313 So.2d 453 (Fla. 2d DCA 1975).

The local action rule in Florida is one of subject matter jurisdiction, not venue, although the Trustees suggest otherwise. Indeed, the rule is rooted in the second part of the in rem definition of subject matter jurisdiction which requires that the court have jurisdictional authority over the land which is the subject matter of the controversy. Moreover, our state supreme court remarked as follows in Lakeland Ideal Farm & Drainage District:

The [venue] statutes... affect only the venue of actions. The authority of the [venue] statutes ... necessarily presupposes that the court in which the action is brought possesses jurisdiction of the subject-matter of the action as well as of the parties. Those statutes do not purport to confer generally extra-territorial jurisdiction as to subject-matter located in another county, nor to change existing rules with reference to the locality of actions which in their essential nature are local and therefore must be brought in a court having jurisdiction of the subject-matter as well as of the parties.

122 So. at 518. In Hendry Corp., this court echoed the above statement in Lakeland Ideal Farm & Drainage District by noting that “the local action rule is itself a limitation on the statutory rule as to venue.” 313 So.2d at 455.

Since the local action rule in Florida is a rule of subject matter jurisdiction, not venue, Mobil did not “waive” the rule by submitting its reply counterclaim to the Leon County Circuit Court, because subject matter jurisdiction cannot be conferred by waiver or consent. See, e.g., Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So.2d 314 (Fla. 1st DCA 1974).

In sum, the Leon County Circuit Court lacks jurisdiction of the subject matter of Mobil’s reply counterclaim for the reason that the counterclaim is in rem in nature and local to the Polk County Circuit Court. See Cohen v. Century Ventures, Inc., 163 So.2d 799 (Fla. 2d DCA 1964). Because the Leon County Circuit Court lacks jurisdiction over the subject matter of Mobil’s reply counterclaim, the rule of priority is inapplicable. Hence, the Polk County Circuit Court did not err in denying the Trustees’ motion in the alternative and in proceeding to render a final judgment.

The Trustees’ three remaining arguments on appeal relate to the substantive question of whether the Polk County Circuit Court erred in granting Mobil’s motion for summary judgment as to the title issues. These issues, however, have been decided adversely to the Trustees in Coastal Petroleum Co. v. American Cyanamid Co., et al. 454 So.2d 6 (Fla. 2d DCA 1984) (questions certified). Therefore, we do not address those questions here.

Accordingly, the final summary judgment order is affirmed.

AFFIRMED.

DANAHY and LEHAN, JJ., concur.

      . It is unclear from the record on appeal whether Mobil’s reply counterclaim was permissive or compulsory in nature.

      . The Trustees assert that Mabie's "rule of priority” is one of exclusive venue, not exclusive jurisdiction.

      . "An action involves title to real estate ‘only where the necessary result of the decree or judgment is that one party gains or the other loses an interest in the real estate, or where the title is so put in issue by the pleadings that the decision of the case necessarily involves the judicial determination of such rights.’ ” In re Weiss’ Estate, 106 So.2d 411, 415 (Fla.1958), quoting from Barrs v. State ex rel. Britt, 95 Fla. 75, 116 So. 28, 29 (1928).

      . A perusal of relevant statutory authority readily reveals that the Leon County Circuit Court has jurisdictional power to adjudicate the class of cases to which Mobil's reply counterclaim belongs. The circuit courts have exclusive original jurisdiction in all cases in equity and in law involving the title of real property. See § 26.-012(2)(c) and (g), Fla.Stat. (1981). The circuit courts also have jurisdiction to declare rights, status and other equitable or legal relations. See § 86.011. More specifically, any party who may be in doubt about his rights under a deed, as is Mobil, may have determined any question under such deed and obtain a declaration of rights, status or other equitable or legal relations thereunder. See § 86.021. In addition, further relief based on a declaratory judgment may be granted when necessary and proper upon an application by motion to the court having jurisdiction to grant relief. See § 86.-061.

        .See also The Northern Indiana Railroad Co. v. The Michigan Central Railroad Co., 15 How. (56 U.S.) 233, 14 L.Ed. 674 (1853); Massie v. Watts, 6 Cranch (10 U.S.) 148, 3 L.Ed. 181 (1810); Johnson v. Dunbar, 114 N.Y.S.2d 845 (N.Y.Sup. Ct.1852), aff’d, 282 A.D. 720, 122 N.Y.S.2d 222 (1953), aff’d 306 N.Y. 697, 117 N.E.2d 801 (1954).

      . See also Ellenwood v. Marietta Chair Co., 158 U.S. 105, 15 S.Ct. 771, 39 L.Ed. 913 (1895).

      . We suggest that the Leon County Circuit Court notice the defect of want of jurisdiction as regards Mobil’s reply counterclaim and enter an appropriate order. See Bohlinger v. Higginbotham, 70 So.2d 911 (Fla.1954).


author: PER CURIAM.

text:
    Thomas F. ICARD, Jr., Appellant, v. Frank M. HENDERSON, Jr., and Edward J. Bergin, Appellees.
    No. 83-1580.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Rehearing Denied Sept. 7, 1984.
    Peter J. Winders of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellant.
    Eric S. Ruff of Trinkle, Redman, Alley & Moody, P.A., Plant City, for appellees.
   PER CURIAM.

This suit involved an unusually worded agreement relating to the sale of a condominium unit. The sale was not closed. The seller sued the buyer for payment for changes made to the unit by the seller at buyer’s request, alleging that charges for those changes were not recovered by the seller from the proceeds of the subsequent sale of the unit to a third party. The trial court rendered judgment for the seller. As one of his points on appeal the buyer argues that under the particular wording of the agreement the buyer was not obligated to pay for the changes if he did not close.

We affirm the judgment for the seller. We conclude that there is competent evidence in the record to support the trial court’s determination regarding the various ramifications of the unusual contractual relationship between the parties.

On cross-appeal the seller contends that the trial court erred in failing to award prejudgment interest on the amount due for the changes. We agree and reverse in this regard. Prejudgment interest is owed from the date of the seller’s demand upon the buyer to pay for the changes. Butler Plaza, Inc. v. Allen Trovillion, Inc., 389 So.2d 682 (Fla. 5th DCA 1980). Seller argues that such interest was owed from the date of closing which was agreed upon by the parties to be August 1, 1982. A letter from seller to buyer, itemizing charges for the changes, refers to the then forthcoming closing and, we believe, should reasonably be construed as a request for payment at closing. Accordingly, prejudgment interest was owed from the date of closing, August 1, 1982. See Vanech v. Hartsfield, 444 So.2d 431 (Fla. 2d DCA 1983), and cases cited therein. See also Butler Plaza.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

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


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    DOWMAN MORTGAGE COMPANY, The Glennell Corporation, Pasco Finance Company and D.D. Covington, Jr., Appellants, v. JIM GRAHAM, INC., et al., Appellees.
    No. 82-440.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1984.
    Rehearing Denied Sept. 7, 1984.
    George W. Phillips, Tampa, for appellant —D.D. Covington, Jr.
    Stuart E. Goldenberg of Hamilton, James, Merkle & Young, West Palm Beach, for appellee — Jim Graham, Inc.
   PER CURIAM.

Affirmed on the authority of Stein v. Miss Frame’s Inc., 417 So.2d 726 (Fla. 1st DCA 1982); see also Puckett v. Codisco, Inc., 440 So.2d 596 (Fla.2d DCA 1983); Central National Bank of Miami v. Muskat Corp. of America, Inc., 430 So.2d 957 (Fla.3d DCA 1983).

HERSEY and HURLEY, JJ., concur.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting.

I respectfully dissent, as I would reverse and remand. This is an appeal by an individual defendant who was sued, along with corporations, based on a series of documents which he had executed. Appellant contended at trial that he was entitled to a directed verdict because of the manner in which the instruments were executed. I agree.

The essential facts are that a land auctioneer submitted to customers for execution contract and inventory forms that were obviously intended for individuals, not corporations. The only signature lines on each of the two contract forms were as follows:

(SELLER)_

Signature represents personal guaranty

(SELLER)_

Signature represents personal guaranty

Similarly, the only signature lines on the inventory form were as follows:

For the Seller

For the Auctioneer

To be suitable for corporate execution the contract forms would have read in the following or a similar manner:

SELLER

By_

Signature represents personal guaranty

Had such latter contract forms been presented, I would be more favorably inclined to appellee’s argument that the question of intent vis a vis personal guaranty was a jury question.

The following are photo copies of the two contract forms as they were ultimately used:

"JIM GRAHAM AUCTIONS NET YOU THOUSANDS MORE!"

The following is a photocopy of the inventory form as it was ultimately used:

The following is a photocopy of a handwritten addendum to one of the contract forms which was ultimately used:

The printed forms were patently inadequate for the transaction — in printed language as well as space for execution — and were, in fact, abandoned by the parties because of their uselessness. The auctioneer testified that there was no discussion between him and the individual about the latter’s personal liability; and that the guaranty language was included in the auctioneer’s printed form long before this transaction on the advice of counsel. The individual now appealing presented testimony — not unexpectedly — that there was conversation about personal liability; and that he made it plain that he was not agreeable to personal liability.

This court should not overlook the obvious and settle upon the abstruse. At no time did the individual fail to reflect that he was executing as a corporate officer. Further, on some of the signature lines only the corporation’s name appears, whereas on two signature lines, the individual’s name appears. How can we sanctify a game of pin the tail on the donkey, imparting judgment for the lines that the individual hit and not for those he missed on a form ill-constructed for corporate execution?

I cannot accede to an affirmance that permits the auctioneer to profit from this situation when it is obvious to the naked eye what, in fact, appears in the spaces afforded is a common, corporate execution.