author: ORFINGER, Chief Judge.

text:
    Frank M. WOLFE, Appellant/Cross-Appellee, v. AETNA INSURANCE COMPANY and Ricker-Horn, Inc., Appellees/Cross-Appellants.
    No. 82-329.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Rehearing Denied Sept. 7, 1983.

      Jack A. Kirschenbaum of Wolfe, Kir-schenbaum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellant/cross-ap-pellee.
    Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellee/cross-appellant Ricker-Horn, Inc.
    Sutton G. Hilyard, Jr., of Pitts, Eubanks & Ross, P.A., Orlando, for appel-lee/cross-appellant Aetna.
   ORFINGER, Chief Judge.

The plaintiff below appeals from a final judgment awarding him damages against his insurer and the insurance agency. We affirm in part and reverse in part.

Appellant Wolfe owned numerous improved properties and for many years had obtained insurance coverage on these properties through the appellee Ricker-Horn, Inc. In 1976, on Ricker’s suggestion, Wolfe consolidated the coverages on his various properties into one master policy. This was done so that if Wolfe sold a property, it would just be removed from the policy and if Wolfe acquired a new property, it would be added to the policy, all by endorsement. This would eliminate the need for a separate policy for each piece of property Wolfe had acquired, avoid double coverage, and save money.

In 1976, Ricker obtained a commercial package policy written by Aetna Insurance Company (Aetna). This master policy contained a list of numerous properties covered under the policy, including three buildings known as the Executive Suites Motel which were insured for $67,000 each.

The master policy had an expiration date of February 2,1979. In December of 1978, Ricker received from Aetna a notice that this master policy would expire during the coming February. One of Ricker’s employees filled out an application form requesting a renewal of the policy, but in completing the application, erroneously failed to include the Executive Suites buildings. Aetna renewed the master policy on March 8, 1979, as per the application submitted. Subsequently, Ricker contacted Aetna on April 24,1979, to advise of the omission and requested an endorsement that was to have retroactive effect back to February 21, 1979, the effective date of the renewal policy. On May 23, 1979, Aetna issued Change Endorsement No. 3, adding the three Executive Suites buildings. This endorsement was received by Ricker on May 29, 1979. Virginia O’Donnell, Ricker’s employee, testified that upon her receipt of the endorsement she called Valerie Johnson, an employee of Wolfe, and advised that she had received the endorsement adding the Executive Suites buildings to the renewal policy. During May, 1979, there were at least two conversations between Virginia O’Donnell and Nancy Zywiolek, another of Wolfe’s employees, on the subject of increasing, not cancelling, the insurance coverage on the Executive Suites. Ms. O’Donnell testified that on May 30th, she discussed the question of increasing coverage with Ms. Zywio-lek and was told that Zywiolek would speak with Wolfe and call O’Donnell back regarding the desired coverage. Ms. O’Donnell testified Ms. Zywiolek never called her back as promised.

On June 26, 1979, Janet Robbins, the manager of the Ricker Agency, directed O’Donnell to contact Aetna to see if endorsement No. 3 could be cancelled on a “flat basis,” which would mean that Ricker would not be held responsible for the premium on the endorsement. Aetna agreed to such a cancellation. There is nothing in the record to indicate that Wolfe was ever notified of the intention to cancel the endorsement, or that Wolfe had any knowledge at all of its proposed cancellation, nor is there any evidence that Wolfe requested its cancellation. The original endorsement was returned to Aetna on June 26, 1979, and was cancelled flat. On July 9, 1979, the Executive Suites Motel was substantially destroyed by a tornado. Following the loss, Wolfe was advised by Ricker that he did not have coverage with Aetna. This suit followed.

Wolfe asserted various theories of recovery against Aetna and Ricker-Horn: (1) that these buildings were insured under the master policy and he was entitled to recover thereunder; (2) that Ricker was an agent for Aetna and if there was no coverage, Ricker was negligent in failing to procure insurance on the motel; and (3) that Aetna was obligated for punitive damages for its wilful and arbitrary refusal to settle the claim. On motion by Aetna, the trial court struck the claim for punitive damages. The case went to trial on the remaining counts. At the conclusion of the plaintiff's case, the trial court directed a verdict in favor of Aetna and against Wolfe on Wolfe’s contract claim. The negligence count was submitted to the jury which found in a special interrogatory verdict that: (a) Ricker-Horn, Inc., was acting as Aetna’s agent in its efforts to obtain insurance on the Executive Suites; (b) that Ricker-Horn, Inc., was negligent in its efforts to the extent of 70%; (c) that Wolfe was 30% negligent; and (d) Wolfe’s total damages amounted to $98,-742.95. Making the appropriate adjustment for the percentage of negligence attributed to Wolfe, the court entered judgment for Wolfe against Aetna and Ricker-Horn, Inc.

Wolfe contends that the trial court erred in directing a verdict in favor of Aetna on the insurance contract claim. On its cross-appeal, Ricker takes the same position. We agree, because jury issues were clearly presented by the evidence. At the close of Wolfe’s case, Aetna moved for a directed verdict on the ground that the endorsement adding the Executive Suites to the renewal master policy was not countersigned by the agent. After first denying the motion, the trial court reconsidered it and then granted it, holding that the endorsement never came into existence because it was neither countersigned nor delivered to the insured. Both Wolfe and Ricker argue that whether there was insurance coverage on the buildings involved in the loss was a question for the jury, and that the absence of the agent’s countersignature on the endorsement was not fatal to its becoming effective.

Aetna relies on section 624.425(1), Florida Statutes (1979), for its position that the endorsement never became effective because it was not countersigned by Ricker. That statute, in pertinent part, says:

(1) Except as stated in s. 624.426, no authorized property, casualty, or surety insurer shall assume direct liability as to a subject of insurance resident, located, or to be performed in this state unless the policy or contract of insurance is issued by or through, and is countersigned by, a local producing agent who is resident of this state, regularly commissioned and licensed currently as an agent of the insurer under this code.

Wolfe and Ricker argue that this statute, at most, requires only the policy to be countersigned, and not the endorsements. We need not decide this point because even if the statute applies to endorsements, it is clear that its purpose is to protect the public in purchasing insurance policies by requiring such policies to be issued by resident, licensed agents over whom the state can exercise control and thus prevent abuses. It would be anomalous to interpret this statute which is designed to protect the public in such way as to deny the public the very protection the statute is intended to provide. Here, no question arises as to the fact that Ricker is a licensed, resident agent and that all dealings were through that agency. Ricker’s failure to countersign the endorsement does not, as a matter of law, invalidate it, because the absence of a countersignature may be waived, Meltsner v. Aetna Casualty and Surety Company, 233 So.2d 849 (Fla. 3d DCA 1969), and does not, in and of itself, control the effectiveness of the insurance. See State Farm Mutual Automobile Insurance Company v. Veenschoten, 272 So.2d 201 (Fla. 2d DCA 1973).

Agreeing that the absence of a countersignature may be waived, Aetna next contends that because Wolfe paid no premium for the endorsement, the coverage never took effect, citing First National Insurance Agency, Inc. v. Leesburg Transfer and Storage, Inc., 139 So.2d 476 (Fla. 2d DCA 1962). That case, however, does not support Aetna’s position because the court held there that while failure of consideration is a defense to a claim of insurance coverage, the defense is not established by merely proving the absence of payment, but there must be shown that the plaintiff had not agreed to accept the policy if issued, carrying with it the implied promise to pay whatever premium would be due thereon. The evidence on this point did not warrant a directed verdict for Aetna. These buildings had been covered by the initial master policy and a premium was paid. They were omitted from the renewal policy because of an error of Ricker. Thus, a factual issue still remains as to the effectiveness of the endorsement notwithstanding the absence of payment, because Wolfe was never billed for the endorsement and the evidence permits the inference that he would have paid the premium had he been billed, as he did on the original policy.

Aetna argues as an alternative point that the court’s ruling on Aetna’s motion for directed verdict can also be upheld on the ground that even if the endorsement is given legal effect notwithstanding the defects in issuance, coverage was cancelled “flat” two weeks before the loss. Aetna states that for this cancellation, Ricker was the apparent agent of Wolfe. Wolfe asserts that Ricker was the agent of Aetna. The jury verdict stated that Ricker was acting as an agent for Aetna in its efforts to obtain the insurance.

If Ricker was the agent of Wolfe in cancelling the endorsement, the flat cancellation would be effective and the directed verdict would be proper, because in effect, the cancellation would have been requested by the insured. However, if Ricker was acting for Aetna, the trial court erred in directing the verdict. The jury found that Ricker was the agent for Aetna in procuring the insurance, but the question of agency with regard to the cancellation was not presented to it because of the directed verdict. Dual agency is recognized in the law when the interests of the principals are not adverse. See Heyman v. Weka, Inc., 333 So.2d 550 (Fla. 3d DCA 1976). Even where the interests of the principals are adverse, dual agency is not prohibited as a matter of law, if the principals are fully advised and consent thereto. 2 Fla.Jur.2d, Agency and Employment, § 74 (1977).

While Aetna now suggests that Ricker was acting for Wolfe, who Ricker was acting for is a factual issue to be determined by the jury where, as here, the evidence indicates that Wolfe never requested the cancellation and appears to have known nothing about it.

According to the terms of the policy, no notice of cancellation is required if cancellation is requested by the insured. If, however, the policy is cancelled by the company, five days written notice prior to cancellation must be given to the insured. Even assuming the right of the company to cancel an endorsement without cancelling the policy, no notice was given so any cancellation on the company’s initiative would be ineffective.

Finally, Aetna says that if all else fails, because Wolfe received a jury verdict and thus benefitted from it, he should not be permitted to maintain the breach of contract action, because the contract remedy and the tort remedy are inconsistent, citing Durbin Paper Stock Company v. Watson-David Insurance Co., 167 So.2d 34 (Fla. 3d DCA 1964). Durbin does not support Aet-na’s position because that case held that the election between inconsistent remedies was not required to be made until after verdict is rendered, and the directed verdict on one of the counts dispensed with that opportunity. This court has also held that an election between inconsistent remedies need only occur before judgment is entered. Erwin v. Scholfield, 416 So.2d 478 (Fla. 5th DCA 1982). This argument is thus unavailing, because the directed verdict on the contract count removed any opportunity for Wolfe to elect.

We find no error in the striking of Wolfe’s claim for damages resulting from delay in the settlement of his claim. Aside from any other legal impediment with respect to the tort count, such damages are far too speculative here to be capable of ascertainment. See New Amsterdam Casualty Co. v. Utility Battery Mfg. Co., 122 Fla. 718, 166 So. 856 (1936). On the contract count, loss of income is not a covered risk. Neither do we find error in the court’s dismissal of Wolfe’s claim for punitive damages, because there were no allegations of a willful or independent tort separate and distinct from any breach of contract. Butchikas v. Travelers Indemnity Co., 343 So.2d 816 (Fla.1976).

Since we have reversed the entry of a directed verdict on the contract count, we note also that Wolfe may be entitled to pre-judgment interest if he recovers on that count, for a liquidated claim. See Brooks v. School Board of Brevard County, 419 So.2d 659 (Fla. 5th DCA 1982).

We find no merit in any of the other issues raised by appellant, nor on the issues raised on the cross-appeals except as previously noted. We find no error in the jury verdict on the negligence count.

We reverse the final judgment insofar as it rests upon the directed verdict in favor of Aetna on the contract claim, and remand for a new trial. Insofar as error is claimed in the finding of liability or the award of damages against both appellees on the tort claim, that judgment is free from error and is affirmed. On remand, if Wolfe is successful in his contract claim, he shall then be required to elect between his contract remedy and his tort remedy prior to the entry of a new final judgment.

REVERSED and REMANDED with directions.

SHARP and COWART, JJ., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    Michael D. SOTOLA, Appellant, v. STATE of Florida, Appellee.
    No. 82-767.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Rehearing Denied Sept. 1, 1983.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

The appellant, Michael D. Sotola, appeals from his conviction on two counts of murder and one count of armed robbery. Of the various errors urged by the appellant, only one merits discussion and consideration by this court: whether or not the trial court erred in seating an alternate juror after jury deliberations had begun. Insofar as we can determine, this is a question of first impression in a Florida state court.

The factual setting giving rise to this issue occurred as follows: on the fifth day of the trial, at 8:15 P.M., the twelve-member jury, following instructions, retired to deliberate. At that time, the two alternate jurors were discharged by the court. They went home. At 11:59 P.M. the jury reentered the courtroom with a request to hear part of the fingerprint expert’s testimony played back. The court decided that the jury could hear the recording, and this was done shortly after midnight. Thereafter, the court received a message that the jury had asked to come back in, which the court assumed to be for a question, and the jury was returned to the courtroom at 1:22 A.M.

The transcript of the proceedings that ensued thereafter until return of the verdict reads as follows:

BY THE COURT: Okay. Bring them in.

(The Bailiff returned the Members of the Jury to the courtroom at 1:22 a.m., after which the following proceedings were held in the presence of the Members of the Jury):

BY THE COURT: Okay. Members of— Foreman, you have a question of the Court?

BY THE FOREMAN: No, I don’t. I have a statement to make to the Court. Your Honor, it has come to light to the Jury certain information that we feel you need to know before we go further.

BY THE COURT: Okay.

BY THE FOREMAN: It has been stated by a Member of the Jury that that person has read the newspaper each day of trial.

BY THE COURT: And that’s affecting your deliberations?

BY THE FOREMAN: Beg your pardon?

BY THE COURT: That affecting your deliberations in the case?

BY THE FOREMAN: We don’t know that it is, but we want you to be aware of it.

BY THE COURT: Okay. Attorneys approach the bench.

BY THE FOREMAN: We — we feel we could be deliberating but we thought at this point in time you should be aware of it.

BY THE COURT: Okay; I appreciate that. Mr. Fox?

(Counsel for the respective parties to the cause approached the bench and the following proceedings were held out of the hearing of the Members of the Jury):

BY THE COURT: What do you want to do?

BY MR. FOX [Defense Counsel]: I don’t know.

(The following proceedings were held within the hearing of the Members of the Jury):

BY THE FOREMAN: Your Honor, let me add to that, this person has not divulged to anyone else at this time what he read— what she read.

BY THE COURT: Okay.

(The following proceedings were held at the bench out of the hearing of the Members of the Jury):

BY MR. PHILLIPS [Prosecutor]: I think he’s got to go. Is there any provision for— the only thing we can do is recall one of the Alternates. I don’t know if that’s—

BY MR. FOX: Quite frankly, at this time of day, Judge, I don’t know how to properly respond to the issue and I would ask that perhaps — now, my gut reaction is to say, let’s come back tomorrow.

BY THE COURT: What for?

BY MR. FOX: Well, either—

BY THE COURT: He hasn’t divulged anything. Why don’t we just excuse that Juror and come back tomorrow with an Alternate Juror.

(The following proceedings were held within the hearing of the Members of the Jury):

BY THE FOREMAN: Your Honor, I don’t know if this is pertinent, but we can hear you.

BY THE COURT: Oh, you can.

(The following proceedings were held at the bench out of the hearing of the Members of the Jury):

BY MR. FOX: I don’t know whether I should move for a mistrial based on — I—I really don’t. I think it is proper grounds for one. I think it’s a matter of my client’s feelings in that regard and my professional judgment in that regard, and I think at 1:15 a.m., after a week-long trial my professional judgment has been severely diminished; but I just briefly discussed it with my client as to what he wished to do and he’s not certain, either.

BY MR. PHILLIPS: I would only point out to the Court the incredible expense that this trial has in fact incurred. If there’s any way possible of salvaging the proceedings, if it’s a question of mistrial, if we can avoid that in any way possible. If in fact the Appeals Court says it’s a mistrial; it should have been granted, fine. Then, we’d have to retry it anyway, but if there’s any way without the granting of the mistrial and starting over again, I think judicial economy would certainly dictate any alternative procedure that is available, with Counsel’s objection noted.

BY THE COURT: Well, he didn’t make his objection yet. For the record, Mr. Fox, he’s not weatherbeaten and a little younger than we are.

(The following proceedings were held within the hearing of the Members of the Jury):

BY THE FOREMAN: Your Honor, I’d like—

BY THE COURT: Can you all hear?

BY THE FOREMAN: Somewhat.

(The following proceedings were held at the bench out of the hearing of the Members of the Jury):

BY MR. PHILLIPS: You want to just break it tonight and why don’t we just have that individual just not return tomorrow and replace that individual with an Alternate. That way that individual would not be embarrassed. It’s obviously — he’s either told them or he’s slipped something, and I think that would be an acceptable way to do it, have those 11—

BY THE COURT: Then, somebody will have to call the Alternate Jurors and have them not to read any papers, make sure—

BY MR. PHILLIPS: Correct. That one black lady, I think she was the next Juror, was she not?

BY MR. FOX: I — I don’t know. I frankly do not remember who was Number One or who’s Number Two, but whoever is the next.

BY THE COURT: Either that or we can have 11, but you want 12?

BY MR. FOX: I think he has to have 12.

BY THE COURT: I think so, too. That’s what we’re going to do.

BY MR. FOX: I’ve not moved for mistrial and had it denied.

BY THE COURT: No.

BY MR. FOX: I — I was going to say, I’m not certain—

BY THE COURT: Okay; so you haven’t. So that’s the procedure the Court is going to take. At nine o’clock in the morning we return.

BY MR. PHILLIPS: Is there any reason to come back at nine instead of ten? The Jury is going to be tired; I know that they’re tired.

BY MR. FOX: And I — I say — I beg for it.

BY THE COURT: Okay; that’s what we’ll do.

(The following proceedings were held within the hearing of the Members of the Jury):

BY THE COURT: This is what the Court decided to do. Rather than declare a mistrial, which hasn’t been asked for, what we are going to do is this. Since we’ve spent this whole week in trial and so forth, we’d like to have a verdict but, of course, we can’t — the person who has disregarded the orders of the Court shouldn’t be sitting on — deliberating this case. So what we’re going to do is this: Have a recess now, have the 11 of you who have not read anything about the case come back tomorrow morning at ten o’clock, at which time the one who has read the paper don’t come back. We’ll deal with that matter a little later; and we’re going to call the two Alternates right now to make sure they won’t read any papers and have one of the Alternates, the next one, come back and join you all tomorrow at ten o’clock and maybe you can decide it then. Okay. So the rest of you all don’t read anything tonight or anything else.

BY THE FOREMAN: The time tomorrow, again?

BY THE COURT: Ten o’clock. Is that good with everybody?

BY JUROR ROSENBERG: Make it eleven.

BY A JUROR: We can go home?

BY THE COURT: Pardon me?

BY JUROR ROSENBERG: Make it eleven.

BY A JUROR: We can go home?

BY THE COURT: Oh, you’re going home. What was the question?

BY JUROR ROSENBERG: Make it eleven.

BY THE COURT: Well — okay.

BY A JUROR: I have a friend with me, dinner tomorrow.

BY THE COURT: And you all know—

BY THE FOREMAN: Your Honor, is it possible to have the Foreman have a conference with you?

BY THE COURT: Sure. Mr. Fox?

(Counsel for the respective parties to the cause and the Foreman of the Jury approached the bench and the following proceedings were held out of the hearing of the Members of the Jury):

BY THE FOREMAN: Okay. Here’s our problem.

BY THE COURT: Now, here’s the point. Don’t tell us how the Jury is leaning. Just tell—

BY THE FOREMAN: Well, I’m not going to do that.

BY THE COURT: Okay.

BY THE FOREMAN: The person in question has been somewhat unique throughout our—

BY THE COURT: Is he the older gentleman?

BY THE FOREMAN: That’s true.

BY THE COURT: Okay; what is—

BY THE FOREMAN: All right. He has just indicated he will be here.

BY THE COURT: Well, I’m going to just tell him he’s not going to be here.

BY THE JUROR: But you don’t know who it is, yet.

BY THE COURT: Well, I know now. That’s okay. I’m going to ask him when you get back there. Do you know his name?

BY THE FOREMAN: Rosenberg. It’s Albert Rosenberg.

BY THE COURT: Rosenberg; okay.

BY MR. PHILLIPS: It’s too much of a trial for him.

BY THE FOREMAN: I ask you to do one thing. Ask each of us that question.

BY THE COURT: Okay.

BY MR. PHILLIPS: I appreciate your candor.

BY THE FOREMAN: There’s a problem there.

(The Foreman of the Jury resumed his seat in the jury box, Mr. Phillips and Mr. Fox remaining at the bench and the following proceedings were out of the hearing of the members of the Jury):

BY MR. FOX: My client insisted that I move for mistrial and I make the motion.

BY THE COURT: Motion denied.

BY MR. FOX: Ten o’clock tomorrow?

BY THE COURT: Yes.

(The following proceedings were held within the hearing of the Members of the Jury):

BY THE COURT: Okay. For the record — we want to get it straight that the person who read the newspaper has not divulged any of the information to any other Jurors; is that correct?

BY THE FOREMAN: That is true, sir.

BY THE COURT: The Jurors all nodded in the affirmative. Mr. Foreman, who is the person who indicated they read the newspaper?

(The Foreman of the Jury indicated Juror Rosenberg).

BY THE COURT: Mr. Rosenberg. Okay. We’ll talk about that later, Mr. Rosenberg, but you other eleven Jurors, tomorrow at ten o’clock. Mr. Rosenberg, you don’t have to come back tomorrow. It would be best for you later on; and the rest of you are excused until ten o’clock in the morning and we’ll get the Alternates back in and find out about them.

(The Bailiff escorted the Members of the Jury from the courtroom at 1:29 a.m. and during the process of the Jurors walking from the courtroom, Juror Rosenberg approached the side bench and the following proceedings were held):

BY JUROR ROSENBERG: I read the headlines, unfortunately. I didn’t read the whole story. For a million dollars I couldn’t tell you what was in it.

BY THE COURT: You don’t have to come back tomorrow.

BY JUROR ROSENBERG: I don’t have to come back?

BY THE COURT: No.

BY JUROR ROSENBERG: Thank you.

(The Jurors had left the courtroom and the following proceedings were held out of the presence of the Members of the Jury):

BY THE COURT: Mr. Fox and Mr. Phillips, someone — I’m going to ask the Clerk— Mr. Fox—

BY MR. FOX: Yes.

BY THE COURT: I’m going to ask the Clerk to ask — to call tonight—

BY MR. FOX: Yes.

BY THE COURT: —the two Alternates to make sure they don’t read anything—

BY MR. FOX: Both?

BY THE COURT: —and have them both come back tomorrow at ten o’clock and we’ll query them about if they read anything about this case.

BY MR. FOX: Okay.

BY THE COURT: At ten o’clock.

BY MR. FOX: Right.

BY THE COURT: Will you do that, Ruth?

BY THE CLERK: I’ll give it a try.

BY THE COURT: Ruth, call them right now in case they don’t have a phone, and then a Deputy or somebody can go by and tell them not to read anything and be here at ten o’clock in the morning. Okay. The Court will be in recess until ten o’clock.

(The Court was in recess at 1:30 a.m. until 10:10 a.m., March 13, 1972 when the Court, Counsel and the Defendant returned to the courtroom. Also present in the courtroom were the two Alternate Jurors, Launa Cotton Bellamy and Joe Harris. The following proceedings were held):

BY THE COURT: For the record, it’s 10:09 this morning, this Saturday, March 13th. We’re gathered here because last night after 1:30 the Foreman of the Jury advised the Court that one of the Jurors may have read something in the Ocala Star-Banner about this case and, therefore, the Court adjourned the trial at that time, but I don’t know if both lawyers were present but the Juror who did read a portion — and all of the Jurors said they did not listen to anything he said — told the Court this. Mr. Brandies.

BY THE COURT REPORTER: This was as the Jurors were leaving the courtroom and he walked up here and leaned over and told the Court — and I was here standing up and I wrote down what he said. “I read the headlines, unfortunately. I didn’t read the whole story. For a million dollars I couldn’t tell you what was in it.”

BY THE COURT: Okay. That’s what he said. So in an abundance of caution, the Court now — those two Alternates — the two Alternates who were in the trial before, I asked the Clerk who was the first Alternate Juror.

BY THE CLERK: Mrs. Bellamy.

BY THE COURT: Mrs. Bellamy. Mrs. Bellamy, you sat through the whole trial:

BY JUROR BELLAMY: Right.

BY THE COURT: I ask you that, have you read or heard anything about this case since you left?

BY THE JUROR: No.

BY THE COURT: During the whole trial have you read or heard anything about this case except what you heard in this courtroom?

BY THE JUROR: No, sir.

BY THE COURT: Any questions by the State?

BY MR. PHILLIPS: The State has none, Your Honor.

BY MR. FOX: The Defense has none.

BY THE COURT: Okay. Then, the Court is going to take the Alternate Juror and ask the second Alternate to wait a few minutes in the lobby, in the hallway, until we see — for a few minutes.

BY JUROR HARRIS: All right, Your Honor.

BY THE COURT: All right. I’m going to ask the Jury to come in and advise them what we’ve done and tell them to go ahead with the deliberations.

BY MR. PHILLIPS: Your Honor, I think we probably have no real problem with excusing the second Alternate Juror and just with the admonition that he avoid reading the paper until he’s notified that the trial is in fact over. I think that might be appropriate.

BY MR. FOX: I would concur with that.

BY MR. PHILLIPS: I’m sure he’d like to get to work and — whatever.

BY THE COURT: That’s fine. I appreciate you coming in like you did, and calling you at 1:30, two o’clock in the morning, I appreciate it. Thank you very much, sir.

Okay. Would you ask the other Jurors to come in.

(The Bailiff returned the Members of the Jury to the courtroom at 10:14 a.m., after which the following proceedings were held in the presence of the Members of the Jury):

BY THE COURT: Members of the Jury; what we did is get the two Alternates and Mrs. Bellamy is the first Alternate. She has told the Court under oath that she has not read — in fact, she said she was too tired to read anything. She went to sleep; and she’s ready to deliberate with you all on this case, and without objection from the attorneys I think the Jury ought to go back now and start deliberating the case again. Right?

BY MR. PHILLIPS: Yes, Your Honor.

(The Bailiff escorted the Members of the Jury to the juryroom at 10:16 a.m., at which time the court was in recess until 5:14 p.m. when the Court, Counsel and the Defendant returned to the courtroom and the following proceedings were held out of the presence of the Members of the Jury):

BY THE COURT: Okay. Bring the Jury in, please.

(The Bailiff returned the Members of the Jury to the courtroom at 5:17 p.m., after which the following proceedings were held in the presence of the Members of the Jury):

BY THE COURT: Members of the Jury, have you reached a verdict?

BY THE FOREMAN: We have, Your Honor.

On appeal Sotola argues that it was error to deny the motion for mistrial because Juror Rosenberg should not have been replaced, and that the court’s action in replacing him violated Florida Rule of Criminal Procedure 3.280, which provides in relevant part:

Alternate jurors, in the order in which they are impanelled shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. (Emphasis added.)

The state responds that the trial court’s violation of the rule does not merit reversal for several reasons:

(1)The alternate juror in this case was approved during voir dire by all parties.

(2) The alternate, after being discharged, was recalled, reexamined, and deemed fit to rejoin the jury.

(3) Her conduct was reviewed during the post trial juror interviews and found to be impeccable.

(4) Permitting the case to proceed with the alternate was favorable to retrying this complex case with numerous out-of-state witnesses.

(5) The Berry decision protects the system from aberrant personalities like juror Rosenberg who might abort an entire trial for any cantankerous reason entering his 82-year-old mind.

(6) Sotola was not entitled to any particular jurors in any event. Porter v. State, 388 So.2d 18 (Fla. 4th DCA 1980).

In Berry v. State, 298 So.2d 491 (Fla. 4th DCA 1974), it was held to be fundamental, reversible error to allow an alternate juror to accompany the jury into the jury room during its consideration of the case, even though the alternate juror did not participate in the deliberations and even though the defendant did not object until after the verdict was returned. The rationale of that case turned on the possible effects on a deliberating jury that the presence of a non-juror might have. Accord Fischer v. State, 429 So.2d 1309 (Fla. 1st DCA 1983). But see, United States v. Allison, 481 F.2d 468, 472 (5th Cir.), aff’d. after remand, 487 F.2d 339 (5th Cir.1973), cert. denied, 416 U.S. 982, 94 S.Ct. 2383, 40 L.Ed.2d 759 (1974). Berry is distinguishable from the instant case, which deals not with an additional presence in the jury room but with the substitution of a juror during deliberation.

More instructive in regard to the point here on appeal is United States v. Phillips, 664 F.2d 971 (5th Cir.1981). In that case the trial court replaced an ill juror on the fourth day of deliberations with an alternate, after ascertaining that no extrinsic information had been received by the alternate. In the instant case, Judge Swigert also ascertained this in regard to Juror Bellamy. The trial judge in Phillips instructed the jury panel, after the addition of the alternate, on its duty to start its deliberations anew — something Judge Swigert failed to do. We will discuss this failure at greater length subsequently in this opinion.

The argument was made, and rejected, in Phillips that impanelling an alternate, after jury deliberations had begun, violated the defendant’s right to a trial by a fair and impartial jury under the Sixth Amendment, his due process right, and the Fifth Amendment prohibition against double jeopardy. It was observed that the federal constitutional issues relative to the substitution of jury alternates after deliberations have begun were explored in depth in People v. Collins, 17 Cal.3d 687, 131 Cal.Rptr. 782, 552 P.2d 742 (1976), cert. denied, 429 U.S. 1077, 97 S.Ct. 820, 50 L.Ed.2d 796 (1977). The Collins court found no constitutional obstacles to such substitution where good cause was shown for the dismissal of the juror. In the instant case, the showing of good cause for the dismissal of Rosenberg was not shown — but there was no objection to his dismissal. Indeed, the record strongly suggests defense acquiescence in that dismissal.

The record in the instant case makes it apparent that counsel for Sotola did not object to the discharge of Rosenberg from the jury. Inquiry should have been made of Rosenberg prior to the decision to discharge — but no one seems to have thought of that or objected to the fact it was not done. After initial acquiescence in the court’s decision to effectuate the substitution, Attorney Fox moved for a mistrial without stating any basis for the motion. The grounds for such a motion, as well as any objection, should be stated in order to apprise the trial judge of the putative error and to preserve the issue for intelligent review. Castor v. State, 365 So.2d 701 (Fla.1978); Hufham v. State, 400 So.2d 133 (Fla. 5th DCA 1981). Was the motion for mistrial based on the fact that Rosenberg was being discharged without proper inquiry? Because the remainder of the panel may have been tainted by him? Because the applicable Florida Rule of Criminal Procedure does not provide for substitution of an alternate juror after retirement of the jury? Because the eleven remaining jurors had heard the tape recording a second time and the alternate had not (a problem which could have been corrected easily the next morning)? Or because Attorney Fox was forced to make important strategic decisions at 1:30 A.M., after a strenuous week of trial and was denied a requested continuance until the next morning to refresh his wits? We do not know — and the trial judge did not know because he was not told.

In point of fact, there was nothing to prevent Attorney Fox, on Saturday morning when court reconvened at 10:10 A.M., from registering the several objections which he had failed to raise in the early morning hours when the Rosenberg problem surfaced. He did not do so even after the night’s rest, which he had requested as necessary for the exercise of his best judgment. If proper objection had been made, and denied, our conclusion herein well may have been different.

Several cases which deal with the substitution of a juror after deliberations have begun emphasize the necessity for an instruction to the newly-constituted panel to begin its deliberations anew. See, e.g., United States v. Kopituk, 690 F.2d 1289 (11th Cir.1982); Phillips; United States v. Davis, 608 F.2d 698 (6th Cir.1979), cert. denied, 445 U.S. 918, 100 S.Ct. 1280, 63 L.Ed.2d 602 (1980); People v. Collins. In United States v. Evans, 635 F.2d 1124 (4th Cir.1980), cert. denied, 452 U.S. 943, 101 S.Ct. 3090, 69 L.Ed.2d 958 (1981), in a similar situation, the trial judge, after substitution by the alternate juror, simply told the new panel to continue its deliberations and did not specifically instruct them to begin entirely anew. No objection was raised, however, and the appellate court therefore declined to speculate on the existence of prejudice arising from the inadequate instruction.

In the instant case, Judge Swigert’s instruction that “the jury ought to go back now and start deliberating the case again” was not a sufficient instruction — but, as in Evans, there was no objection to it. Moreover, the post-trial interview conducted of the jurors clearly revealed that the new jury, with Mrs. Bellamy, started on Saturday from “scratch,” in the words of the jury foreman.

In summary, it appears that Florida has no statutory or procedural authorization for substitution of an empanelled juror after discharge of the alternates and commencement of deliberations. In the event of timely objection, it should not be done. See 84 A.L.R.2d 1288. But there is no constitutional impediment to such substitution, and it is not fundamental error to permit it in the absence of timely and proper objection. In the instant case, inquiry revealed that the alternate juror, Mrs. Bellamy, had not been “tainted” during her absence and that the “new” jury recommenced its deliberation from “scratch,” although not instructed to do so. The record and the juror interviews reveal that there were no ulterior or improper motives on the part of the trial judge, the prosecutor, or the other eleven jurors which resulted in the discharge of Juror Rosenberg.

AFFIRMED.

COWART, J., concurs.

FRANK D. UPCHURCH, Jr., J„ concurs specially with opinion.

FRANK D. UPCHURCH, Jr., Judge,

concurring specially.

This case illustrates the dangers inherent in conducting a trial or requiring a jury to deliberate to the point that the limits of human endurance are tested. When the situation involving juror Rosenberg was brought to the judge’s attention, defense counsel asked the trial judge not to require him to make a decision at 1:15 a.m. after a week-long trial because his judgment was severely diminished, but the trial judge elected to discharge Rosenberg. Defendants are entitled to effective assistance of counsel and the rational deliberations of an alert jury. Requiring them to perform their duties to the point of exhaustion (or 1:15 a.m.) would certainly seem to deprive a defendant of both. Had Sotola objected to proceeding at the late hour or moved for a mistrial the next day when the court reconvened and counsel had an opportunity to rest, I think clearly the trial judge would have been in error had he failed to grant the motion. However, because counsel did not object and, in fact, appears to have tacitly agreed to the substitution of the alternate, I reluctantly concur with the majority.

I would also point out that the transcript indicates the trial judge decided to discharge juror Rosenberg before any inquiry of him had been made. This procedure is clearly improper. The mere fact that a juror may have been exposed to publicity about a case does not mean he cannot serve on a jury; rather, the question is whether the juror can lay aside his impressions and opinions and render a verdict based on the evidence presented in court. Robinson v. State, 438 So.2d 8 (Fla. 5th DCA 1983). Here, the belated inquiry shows that juror Rosenberg admitted that he had read the headline and apparently part of a story about the pending case. Whether this is sufficient to uphold the trial court’s decision to discharge Rosenberg in light of his statement that he had no recollection of the content of the story has not been preserved for appellate review.

      . See generally United States v. Noah, 475 F.2d 688 (9th Cir.1973), cert. den., Ross v. United States, 414 U.S. 821, 94 S.Ct. 119, 38 L.Ed.2d 54 (1973) and cert. den., Noah v. United States, 414 U.S. 1095, 94 S.Ct. 728, 38 L.Ed.2d 553 (1973) (no error in denial of motion for mistrial where one juror admitted reading headline of newspaper article, headline itself was not prejudicial although article was potentially prejudicial and no evidence that other jurors had read article); Pearson v. United States, 378 F.2d 555 (5th Cir.1967) (no error in denial of motion for mistrial where two jurors had heard portion of news report or had been told of newspaper story but had no recollection of contents). See also Annot., 31 A.L.R.2d 417 (1953).


author: COWART, Judge.

text:
    Giles A. WEST, et al., Appellants, v. Dorothy A. WEST, Appellee.
    No. 82-1585.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Rehearing Denied Sept. 6, 1983.
    William Murrell, Jr. of William Murrell, Jr., P.A., Orlando, for appellants.
    Adelaide E. Davis, Orlando, for appellee.
   COWART, Judge.

This case involves an untimely response to a request for admissions.

Appellant Merle West filed a request for admissions. Appellee did not file a timely response but, without first obtaining judicial approval, did file a belated response. On the eve of trial the effect of the belated response was discussed by counsel and the trial court. Appellee’s counsel took the position that no default had been taken upon the tardiness of the response, that appellant had not been prejudiced, that the matter was procedural and not jurisdictional, and that the matter of the untimely response should have been raised sooner by appellant. There being no motion before the trial court no formal ruling was made on this question but the trial court disregarded the admissions and made subsequent findings inconsistent with them. We reverse on this point.

Florida Rule of Civil Procedure 1.370(b) clearly provides

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission, (emphasis supplied)

Under this rule the requested matter is admitted unless a timely written answer or objection is served and the admission continues unless, on motion made by the person suffering the admission, relief from the effect of the failure to timely respond is granted. See Melody Tours, Inc. v. Granville Market Letter, Inc., 413 So.2d 450 (Fla. 5th DCA 1982). We have, however, also held that a motion under this rule is absolutely necessary and if no motion is filed the trial court does not err in not granting relief from the effect of a belated response. See Morgan v. Thomson, 427 So.2d 1134 (Fla. 5th DCA 1983). However, the rule cannot be ignored and in the absence of a motion it is error to disregard the admissions resulting from the failure to timely respond to the request for admissions. In Morgan we held the trial court does not err in denying relief from admissions in the absence of a motion. Here we hold the trial court does err in granting relief from admissions in the absence of a motion.

While we are concerned with the limited time that the child in this case was given to visit with its father, we find no judicial error relating to the issue of child custody and visitation assuming that upon any improvement in the circumstances relating to the sensitive matter of visitation; the time for visitation between the father and the child can and will be enlarged. We find no judicial error in the trial court’s refusal to find, under any theory, that the husband had any interest in the home he had previously conveyed to the wife.

We reverse and remand for further proceedings as to the claim of the intervenor Merle West consistent with this opinion and the admissions relating to her claim.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, C.J., and DAUKSCH, J., concur.


text:
    Joan Forsyth WILLIS, Shirley L. Hammond and Everard L. Hammond, Appellants, v. Clay L. STRICKLAND, et al., Appellee.
    No. 83-52.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Rehearing Denied Sept. 6, 1983.

      Anderson E. Hatfield, Gainesville, for appellants.
    John F. Bennett of Fishback, Davis, Dominick & Bennett, Orlando, for appellee.
   COWART, Judge.

This case involves an interpretation of section 768.125, Florida Statutes (1981), which provides in part:

[A] person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age ... may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

In their second amended complaint seeking compensatory and punitive damages appellants allege they were injured as a result of an automobile accident caused by the intoxication of one Clay L. Strickland, a person not of lawful drinking age, to whom employees of ABC Liquors, Inc. (ABC) willfully and unlawfully sold alcoholic beverages. This is an appeal from a summary judgment in favor of ABC.

On the motion for summary judgment the trial court considered various evidentia-ry matters (affidavits and depositions). While this evidence is not in conflict, the parties differ in their interpretation of the word “willfully” in the above statute.

The evidentiary material before the trial court indicates that at the relevant time Clay was sixteen years of age and had the appearance, speech and mannerism of a sixteen year old and that without inquiring or checking identification as to his age two employees of ABC sold and furnished Clay beverages which caused him to become intoxicated.

ABC argues that a “willful” sale under the statute requires more than mere neglect on the part of an employee to check the age of a customer and that it requires proof of an intentional sale or service of alcoholic beverages made with actual knowledge that the age of the person being served is under the lawful drinking age.

A “willful” sale or furnishing of alcoholic beverages to a person not of lawful drinking age does require knowledge that the recipient is not of lawful drinking age. However such inculpatory knowledge of the age of a particular person may be proved by direct evidence of actual knowledge or such knowledge may be established by circumstantial evidence. Circumstantial evidence of such knowledge may consist of facts relating to the apparent age of a person. The appearance of a person alone can impart knowledge of his or her age within certain ranges and to certain degrees of certainty. Whether it does or not in a particular instance, and to what extent, would normally be a question of fact for the jury to determine. The circumstantial evidence in this case, consisting of facts relating to Clay’s appearance as being that of a person who is not of lawful drinking age, is sufficient to create a genuine issue as to the material fact of ABC’s knowledge of Clay’s age and to preclude a summary judgment as to that issue.

Because the complaint failed to allege fault on the part of ABC independent of fault of its employees in serving alcoholic beverages to Clay (for which ABC is vicariously liable), we affirm the order striking the claim against ABC for punitive damages. Mercury Motors Express, Inc. v. Smith, 393 So.2d 545 (Fla.1981).

The summary judgment is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

DAUKSCH and SHARP, JJ., concur.


author: ERVIN, Chief Judge.

text:
    CLARK AND COMPANY, INC., Appellant, v. The DEPARTMENT OF INSURANCE AS RECEIVER OF EASTERN INSURANCE COMPANY and The Florida Insurance Guaranty Association, Appellees.
    No. AQ-186.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1983.
    Rehearing Denied Sept. 13, 1983.

      Robert E. Gibson, Tallahassee, for appellant.
    Dennis K. Threadgill and Robert E. Sheridan, Tallahassee, for appellee Dept, of Ins.
    R. Lee Smith and Paul M. Harden, Jacksonville, for appellee Florida Ins. Guar. Ass’n.
   ERVIN, Chief Judge.

Appellant, Clark and Company, Inc. (Clark), appeals from a final order denying its petition for priority in the distribution of reinsurance proceeds owed to Eastern Insurance Company (Eastern), an insolvent Florida insurer now in receivership, contending that it is entitled to a priority under any of three theories: (1) as a third-party beneficiary; (2) as an exception, recognized by this court, to the general rule regarding distribution of reinsurance proceeds; and (3) as an assignee. We disagree and affirm the lower court’s order in its entirety.

Clark, a managing general insurance agency with its principal place of business in Texas, is engaged in the business of providing surplus lines coverage to Texas residents through out-of-state insurers not otherwise authorized to do business in that state. In 1980 Clark proposed to Eastern a business arrangement whereby Clark, not itself an insurer, would write insurance coverage in Texas, Louisiana and Oklahoma on Eastern’s behalf. The arrangement was to be structured so as to give Clark substantial control over the day-to-day operations in order to provide it with maximum flexibility in writing the policies. In return, Eastern would receive a small percentage of the premiums generated by Clark. Finally, the arrangement contemplated that reinsurance treaties would be secured so that Eastern would retain only 10% of the risk on the policies written by Clark. On July 15, 1980, Clark and Eastern entered into a management agreement detailing the duties, obligations and responsibilities of each party. On the same date, Eastern entered into three reinsurance treaties with a group of out-of-state reinsurers which, collectively, agreed to assume 90% of the risk on Eastern policies written by Clark, not a party to the treaties. Each treaty contained the following express provision regarding procedures to be followed in the event of Eastern’s insolvency:

It is further agreed and understood that in the event of insolvency of the Company, the reinsurance shall be payable by the Reinsurer directly to the Company, or to its liquidator, receiver or statutory successor, except as provided by Section 315 of the New York Insurance Law or except (a) where the Agreement specifically provides another payee of such reinsurance in the event of the insolvency of the Company and (b) where the Reinsurer with the consent of the direct insured or insureds have assumed such policy obligations of the Company as direct obligations of the Reinsurer to the payees under such policies and in substitution for the obligations of the Company to such payees.

(emphasis supplied).

Clark and Eastern operated under their management agreement for approximately one year until Eastern found itself in a precarious financial position due to heavy losses sustained by it on policies written by Clark. On October 1, 1981, Eastern agreed to a bordereau agreement with Southeast Fire Insurance Company in which Southeast, a reinsurer, agreed to assume 100% of the risk on all Eastern policies written by Clark prior to that date. Later that month Eastern was placed in receivership by the Florida Department of Insurance.

Clark in the meantime had paid out some $250,000.00 in claims to Texas insureds on the assumption that it would be liable for such claims as the surplus lines agent for Eastern in that state. To ensure its reimbursement for that amount, Clark sought to establish its right to a priority over Eastern’s other creditors in the distribution of reinsurance proceeds. After hearing extensive testimony and reviewing all relevant documents, the lower court found that Clark’s asserted priority under a third-party beneficiary theory was negated by the clear and unambiguous language of the insolvency provisions of the reinsurance treaties.

In urging reversal of the lower court’s order, Clark notes that the issue of priority of distribution of reinsurance proceeds has been addressed by this court on two prior occasions. In the first decision, McDonough Construction Corporation v. Pan American Surety Company, 190 So.2d 617 (Fla. 1st DCA 1966), we considered and rejected the argument of an insured that had contended it was entitled to a priority in the distribution of reinsurance proceeds as a third-party beneficiary to a reinsurance contract. In concluding that reinsurance proceeds must be paid to the insurer’s receiver for the benefit of all creditors, we recognized the general rule relating to reinsurance contracts:

An ordinary contract of reinsurance, in the absence of provisions to the contrary, operates solely as between the reinsurer and the reinsured. It creates no privity between the original insured and the re-insurer .... Upon the insolvency of the insurer the proceeds of the reinsurance become assets to be distributed generally among the creditors, and the original insured has no equitable claim upon them. The liability of the reinsurer is solely and exclusively to the reinsured.

190 So.2d at 618-619 (emphasis supplied). Applying that rule, we concluded that the insured had no right to a priority in reinsurance proceeds over that of all other creditors of the insolvent insurer.

A similar issue was before the court in Mitchell v. State ex rel. Williams, 223 So.2d 792 (Fla. 1st DCA 1969), but in the context of a different factual situation. In Mitchell, an insured under a fire insurance policy suffered a loss of $333,030.66 as the result of a fire on its premises. Because a portion of the risk on the policy was the subject of reinsurance contracts, over $130,000.00 was paid by the reinsurers to the insurer for that loss. Before the money was paid to the insured, however, the insurer was placed in receivership. While recognizing that McDonough stood for the proposition that “reinsurance proceeds become assets to be distributed among the general creditors[,] and the original insured has no equitable claim upon them”, we noted that other jurisdictions had declined to apply that rule in three instances:

(1) [Wjhere the reinsurer binds itself to the terms and conditions of the original contract; (2) where the reinsurer binds itself to assume complete liability for the original policies; and (3) where, by special agreement between the original insured and its insurer, reinsurance is made a condition of the original policy.

223 So.2d at 793. Because the reinsurance certificates in Mitchell contained express language evidencing the reinsurer’s intent to bind itself to the terms and conditions of the original contract of insurance, we concluded that the first exception to the general rule should apply, thereby entitling the insured to a priority.

.Clark first contends that this case is not controlled by McDonough because the reinsurance treaties involved are not “ordinary contracts] of reinsurance”, as defined by that opinion, because the treaties do not apply to all insurance contracts written by Eastern, but only to those policies written by Clark on behalf of Eastern. General principles relating to third-party beneficiary contracts, it contends, should instead govern. Alternatively, Clark urges that the Mitchell exception, applicable where a rein-surer “binds itself to the terms and conditions of the original [insurance] contract”, is controlling and compels reversal.

In rejecting these contentions we first observe that both McDonough and Mitchell are factually distinguishable from this case in that, unlike the petitioners therein, Clark is not an insured. It is, instead, merely an agent entitled to write policies on behalf of Eastern in several western states. As such, it is not entitled to a priority under the principles recognized in either McDonough or Mitchell. -

Assuming arguendo those cases might be applicable, reversal is still not required. To prevail under a third-party beneficiary theory, Clark must prove that the provisions of the reinsurance treaties “clearly show an intention primarily and directly to benefit” Clark. Security Mutual Casualty Co. v. Pacura, 402 So.2d 1266, 1267 (Fla. 3d DCA 1981) (emphasis supplied). Additionally, it must be shown that both parties to the reinsurance treaties intended that Clark be directly benefited therefrom —it is not sufficient to show that only one party, in this case Eastern, unilaterally intended that result. See Health Application Systems, Inc. v. Hartford Life & Accident Insurance Co., 381 So.2d 294, 298 (Fla. 1st DCA 1980); 11 Fla.Jur.2d Contracts § 153 (1979). As the lower court properly concluded, the insolvency provision, common to all three reinsurance treaties, negates any argument that Clark was to benefit directly from the treaties.

Similarly, the limited exception found in Mitchell cannot apply to entitle Clark to a priority in this case. That exception can only apply where the express language of the reinsurance contract binds the reinsurer to the terms and conditions of the original contract of insurance between the insured and the insurer. 223 So.2d at 794. Indeed, several commentators have suggested that the exception should not apply unless the reinsurer has actually agreed to assume direct liability to the insured under the terms and conditions of the original policy. See 13A Appleman, Insurance Law and Practice § 7694 (1976); 44 Am.Jur.2d Insurance § 1841 (Rev. ed. 1982); 30 Fla.Jur.2d Insurance § 475 (1981). Even a tortured interpretation of the reinsurance treaties in the case at bar would not suggest any intent on the part of the reinsurers to assume any direct liability to Clark; accordingly we find the Mitchell exception inapplicable.

Clark next contends it is entitled to a priority by virtue of an alleged assignment of Eastern’s interest in the reinsurance proceeds to Clark. The sole basis of this assignment theory is a letter dated September 30, 1981 from Eastern to Intere Intermediaries, a Texas reinsurance broker, stating, “... Eastern Insurance Company does not object to you or your reinsurers remitting claims recoveries directly to Clark and Company on claims adjusted and paid by them.” (emphasis supplied.) The Department of Insurance urges that we reject this theory, first, because the issue was never raised below and, second, because if the letter of September 30, 1981 is interpreted as an assignment, it would be necessarily void by operation of section 631.262, Florida Statutes, which creates a presumption that any such transfer made within six months of an insurer’s placement in receivership is void and fraudulent. We agree with the Department that Clark has failed to preserve the issue of assignment for appellate review. See Bergen Brunswig Corp. v. State, Department of Health and Rehabilitative Services, 415 So.2d 765, 766 (Fla. 1st DCA 1982). Nevertheless, we observe that the above quoted language relied upon by Clark falls far short of expressing the requisite intent on the part of Eastern to transfer all of its interest in the reinsurance proceeds to Clark, the purported “assignee”. See generally 4 Fla.Jur.2d Assignments §§ 1, 13 (1978).

Accordingly, the final order is AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.

      . The parties evidently originally contemplated an arrangement whereby Clark would write insurance on Eastern’s behalf and Eastern would reinsure 100% of its risk under the policies. When informed by the Florida Department of Insurance that such a plan would run afoul of Florida’s “anti-fronting statutes”, Eastern agreed to retain 10% of the risk and to reinsure the remaining 90%.


author: PER CURIAM.

text:
    Gerald John RUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1663.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Rehearing Denied Sept. 21, 1983.

      Joel Hirschhorn, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, - U.S. -, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); see also James v. State, 334 So.2d 83 (Fla. 3d DCA 1976); Zamot v. State, 375 So.2d 881 (Fla. 3d DCA 1979); Rose v. State, 425 So.2d 521 (Fla.1982); Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); Forehand v. State, 126 Fla. 464, 171 So. 241, 243 (1936); Lecoin v. State, 418 So.2d 336 (Fla. 3d DCA 1982).


author: NIMMONS, Judge.

text:
    Russell A. DORSEY and James A. Dorsey, Carol D. Coleman and Jean D. Hoeschst, constituting and being the heirs at law and sole surviving heirs at law of James A. Dorsey, deceased, Appellants, v. Earl BACON, Daniel Traver, and Marcus Cornelius, constituting the majority of Meridian Meadows Committee, Appellees.
    No. AO-232.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1983.
    Rehearing Denied Sept. 19, 1983.

      J. Lawrence Johnston and John C. Pel-ham of Ervin, Vam, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    F. Townsend Hawkes of Culpepper, Beatty & Turner, Tallahassee, for appellees.
   NIMMONS, Judge.

This is an appeal from a summary judgment granted the plaintiffs/appellees in an injunctive suit brought against the defendants/appellants to enjoin appellants from recording any deed restrictions as to certain subdivision lots which would conflict with an alleged agreement entered into in 1974 between appellees and appellants regarding the square footage of any buildings constructed on such lots. For the reasons set forth herein, we reverse the summary judgment.

In 1955, certain restrictive covenants were placed of record covering a Leon County subdivision known as “Meridian Meadows.” James A. Dorsey (not appellant James A. Dorsey) and appellant Russell A. Dorsey were two of the five owners of the subdivision when the owners executed and recorded the 1955 restrictive covenants which are effective, by their terms, until 1990.

Appellants James A. Dorsey, Carol D. Coleman and Jean D. Hoechst are the heirs at law of James A. Dorsey, deceased. They, together with appellant Russell A. Dorsey, are the present owners of certain of the Meridian Meadows lots which are the subject of the instant suit.

The 1955 restrictions provided for minimum square footage of 1,000 feet for any dwelling to be constructed in the subdivision. The covenants expressly provided for authority of any lot owner to prosecute any proceedings at law or equity in the event of any violation or attempted violation by the covenants’ signatories, their heirs or assigns. The covenants also provided for a committee (hereafter “the Committee”) whose responsibility would be to review for approval building plans and specifications as to conformity and harmony of external design with existing structures in the subdivision and as to location of the building with respect to topography and finished ground elevation. The Committee was also empowered to change or vary set back lines specified in the covenants. The Committee had no other responsibilities than those specified. The covenants did not purport to empower the Committee to act for the lot owners in such matters as modifying the above-referred building square footage requirement.

Appellants conceded in the trial court that the appellees constitute the majority of the present Committee. Appellant Russell Dorsey is the other member of the Committee.

In 1974, Russell Dorsey was desirous of selling one of his lots to a prospective purchaser, Mrs. Hendry, who was willing to purchase only if she would be allowed to build a “barrel” home (sometimes referred to as “Alpine” type construction), an architectural design which the Committee regarded as not in conformity with the predominant subdivision architecture. Nevertheless, the Committee agreed to approve the proposed construction if Russell Dorsey would agree to raise to 2,000 square feet the square footage building minimum applicable to certain of the remaining lots owned by him and the James A. Dorsey heirs. In a letter dated February 7, 1974, to the attorney for the Committee, Russell Dorsey stated inter alia:

Lots 11 and 12 (east of Seabrooks) are to have a minimum of 1500 feet. All other lots sold by me from now on are to have a 2000 foot minimum. I say “by me” because, of course, I have no control over lots sold previously. The “by me” also includes sales by the estate, or by any real estate company or individual.

Subsequently, the Committee approved the proposed plans for Mrs. Hendry’s barrel house and the home was constructed. However, nothing was placed of record purporting to raise the square footage to 2,000 feet on the subject lots until a document entitled “restrictive covenants” was recorded two years later in May, 1976. It was executed by each of the four appellants. Although it provided for a minimum square footage of 2,000 feet for the subject lots, nothing in the document indicated any relationship between it and Russell Dorsey’s agreement two years earlier.

The following year, in 1977, the appellants purported to again modify the square footage restrictions applicable to the subject lots by executing and recording another document entitled “restrictive covenants” reducing the square footage for structures built on such lots to 1500 square feet.. The Committee first became aware of this new change in 1979 when two purchasers of lots from Russell Dorsey presented building plans to the Committee. The plans were rejected by the Committee because they provided for floor plans of less than 2,000 square feet. These two purchasers, Messrs. Tyre and Wetherington, then filed suit for declaratory judgment against the Committee in the Circuit Court in Leon County seeking a determination as to the applicability to them of the 1976 and 1977 restrictions. The Committee sought to enforce the 1976 restrictions providing for a 2,000 square foot minimum while Tyre and Wetherington relied upon the 1977 1,500 square foot restrictions. Judge Cawthon was the trial judge in that case as in the instant suit. Judge Cawthon’s declaratory judgment in the Tyre and Wetherington case, among other things, ruled: (1) that in the absence of provision in the original 1955 restrictive covenants for modification of the restrictions, only by unanimous consent of all existing lot owners could the building square foot minimum be changed; (2) that some of the Committee members were aware of the 1977 modifications but took no steps to put the public on notice of the Committee’s position that such modifications were ineffective; (3) that the Committee had no right to expect Tyre and Wetherington to be bound by the 1976 document without their also having the right to rely upon the reductions contained in the 1977 recorded document; (4) that although neither the 1976 document nor the subsequent 1977 document created valid restrictions governing the lots purchased by Tyre and Wetherington, they (Tyre and Wether-ington) were estopped to deny the validity of the 1977 restrictions, the last recorded restrictions included in their deeds providing for the 1500 square foot minimum; and (5) the Committee had no right to reject Tyre and Wetherington’s house plans for alleged nonconformance with the 1976 2,000 square foot minimum requirement. No appeal was taken from the Tyre and Wether-ington judgment which was entered in February, 1980. However, within a month thereafter, the Committee filed the instant suit.

By its injunctive suit, the Committee sought a judgment enjoining appellants from recording any further documents purporting to modify the 1976 restrictions which required the 2,000 square foot minimum, enjoining appellants from conveying any of their lots unless the deed recites that the conveyance is subject to the 1976 restrictions, and striking or expunging the 1977 restrictions which purported to reduce the square foot minimum to 1500 feet. In August, 1982, the trial court entered the order appealed from granting the Committee’s motion for summary judgment. In its order, the trial court found that the 1976 restrictions “were pursuant to a valid agreement and are enforceable by the Corn-mittee,” and enjoined the appellants from recording any document purporting to modify the 1976 restrictions and from conveying any of the Meridian Meadows lots unless the deed recites that the conveyance is subject to the 1976 restrictions.

Of course, a party moving for summary judgment must show conclusively that no material issues remain for trial. E.g. Visingardi v. Tirone, 193 So.2d 601 (Fla.1967). Based upon the state of the record at the time of the order granting summary judgment, there were genuine issues of material fact to be tried.

The record reveals a material unresolved issue as to whether Russell A. Dorsey was acting as agent for the other appellants in entering into the 1974 agreement to raise the minimum square footage to 2,000 feet. They denied entering into any such agreement with the Committee. Russell Dorsey denied that the other appellants were privy to such agreement. The principal documents relied upon by appellees to prove the agreement are Russell A. Dorsey’s February 7,1974, letter to the Committee’s attorney and his affidavit in opposition to summary judgment. Neither document is sufficient to prove that Russell had actual or implied authority to act as agent for the other appellants (the James A. Dorsey heirs). The only arguable method by which such appellants might be considered to have been bound by Russell’s agreement was the execution and recording of the 1976 document raising the square footage restrictions to 2,000 feet, which act might arguably be regarded as an adoption by such appellants of the agreement, or perhaps as acquiescence in the authority of Russell to bind them. However, the document itself contains no reference to the alleged 1974 agreement or to any other reason for the execution of the document. Moreover, there are no depositions or any other proof of record indicating the reason for the James A. Dorsey heirs’ execution of the 1976 document.

Even if it can be said that Russell’s act of executing the document is sufficiently tied to his 1974 promise, one can only infer that Russell communicated his 1974 agreement to the James A. Dorsey heirs and that they executed the document to satisfy the terms of the agreement. There are, of course, other inferences which could be drawn from the same facts. Suffice it to say that the inference supporting appellees’ position does not measure up to summary judgment standards.

Another factual issue centers around the authority of the Committee to enter into an enforceable agreement of the kind which the Committee seeks to enforce in the instant case. Implicit in the trial court’s summary judgment order finding that the 1974 agreement was a valid agreement is that the Committee was duly authorized to enter into such an agreement purporting to modify the building square footage provisions originally set in place by the 1955 restrictive covenants, covenants which were imposed upon the entire subdivision by all of the then lot owners. Appellees allege in their complaint that the Committee, in entering into the 1974 agreement, was “acting for the benefit of the existing landowners.” The authority of the Committee to enter into such an agreement was challenged by all of the appellants, each of whom have alleged that the Committee’s authority was limited to the specific subjects delineated in the 1955 document, which subjects we have mentioned earlier in this opinion and which do not include modification of the covenants regarding building square footage. Moreover, the appellants deny that the Committee was representing the interests of all other subdivision landowners when the Committee entered into the 1974 agreement. The Committee failed to demonstrate that there was no genuine issue of material fact with respect to its authority to enter into and enforce the alleged 1974 agreement.

While the trial court’s order granting summary judgment expressly relied upon its finding of a valid enforceable agreement, the Committee relies, in the alternative, on appeal, on the doctrine of promissory estoppel recognized by this Court in Baxter’s Asphalt v. Liberty County, 406 So.2d 461 (Fla. 1st DCA 1981), reversed on other grounds, 421 So.2d 505 (Fla.1982). That doctrine provides that where a promissor makes a promise which the prom-issor should reasonably expect to induce action or forebearance of a substantial character on the part of the promisee and which does induce such action or forebearance, the promise is binding if injustice can be avoided only by enforcement of the promise. Baxter’s Asphalt v. Liberty County, supra; Mount Sinai Hospital of Greater Miami, Inc. v. Jordan, 290 So.2d 484 (Fla.1974). However, the issues of material fact referred to above remain genuine unresolved issues regardless of whether appel-lees rely for affirmance upon a valid enforceable agreement or promissory estoppel.

Appellants also argue on appeal that the trial court should have denied summary judgment because “changed circumstances and frustration of the original purpose of the 1976 restrictions relieved appellants” from being bound thereto, citing in support thereof Carlson v. Kantor, 391 So.2d 342 (Fla. 4th DCA 1980), and Oius v. Barton, 109 Fla. 556, 147 So. 862 (1933). However, such constitutes an avoidance which must be affirmatively pled. Fla.R.Civ.P. 1.110(d). Appellants did not do so and we, therefore, decline to examine the record to determine whether the facts of this case lend themselves to the applicability of that defense.

Finally, appellants argue on appeal that the doctrine of “balancing the relative conveniences of the parties” should have precluded the entry of summary judgment in favor of appellees. Appellees assert that appellants waived the right to rely upon that doctrine since appellants failed to affirmatively plead it in the trial court. In view of our reversal of summary judgment on the points previously discussed, we pre-termit the question of the applicability of this doctrine and whether its proponent must affirmatively plead it.

For the reasons mentioned, the trial court’s order granting appellees’ summary judgment is REVERSED.

LARRY G. SMITH and ZEHMER, JJ., concur.

      . This summary of the Tyre and Wetherington suit is included here only for the purpose of clarifying the events leading up to, and which provided the impetus for, the filing of the instant injunctive suit. Excerpts from deposition and trial testimony in the Tyre and Wethering-ton case were submitted in the instant case in support of appellee Committee’s motion for summary judgment. We do not discuss the prior suit by reason of any res judicata contentions by any of the parties hereto, none of the parties having raised res judicata or estoppel by judgment in the trial court.

      . The following is an excerpt from Russell A. Dorsey’s testimony:
      “By Mr. Beatty:
      Q. You do acknowledge that in [sic] your relatives’ executing 2,000 square foot document was the result of an agreement that you had with the Committee that they would approve the Henry barrel house and permit you to sell the lot?
      A. No, that is not so.”
      Also, Joe Kittrell, a member of the Committee in 1974, testified in part:
      The agreement was between the Committee and Mr. R.A. Dorsey, and I assume as spokesman for the heirs of James A. Dorsey — they were not in, they were not present in the discussion.” (emphasis supplied)

      . “Situations may exist that require application of the principle of balancing the relative conveniences of the parties, the rule being that equity will not require by injunction the performance of an act where the harm to the person coerced is wholly disproportionate to the benefit to the other party, or, indeed, when greater injury and inconvenience will result to the defendant from an injunction than will be caused to the plaintiff by its refusal.” 29 Fla.Jur.2d Injunctions, Section 23.

      . We note that our sister court in Brewer v. Hibbard, 424 So.2d 988 (Fla. 5th DCA 1983), in reversing a summary judgment because “[T]he order requiring removal of the two buildings appears to have been entered without considering the principle of balancing relative conveniences, Johnson v. Killian, 157 Fla. 754, 27 So.2d 345 (1946),” apparently assumed that it was not necessary for the pleadings to raise such issue.