author: JOANOS, Judge.

text:
    Barbara E. TRUESDELL, as personal representative of the Estate of Gladys Coleman, deceased, Appellant, v. Joseph PROCTOR, M.D. and Jacksonville Geriatrics Center, Inc., d/b/a Turtle Creek Health Care Center, Appellees.
    No. AR-180.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1983.
    Rehearing Denied Feb. 3, 1984.
    V. James Facciolo of Searcy & Facciolo, Jacksonville, for appellant.
    Reese Waters, Earl M. Barker, Jacksonville, Terrence M. White, Daytona Beach, for appellees.
   JOANOS, Judge.

Barbara Truesdell, the daughter and personal representative of Gladys Coleman, deceased, sued Dr. Joseph Proctor and the Jacksonville Geriatrics Center d/b/a Turtle Creek Health Care Center (“Turtle Creek”) alleging four counts. Three of the counts were as follows. Count I: Proctor and Turtle Creek breached a duty to Coleman by discharging her from the nursing home after her medicaid status was changed making it less profitable to keep her, contrary to state and federal regulations which make it unlawful for a nursing home to discharge medicaid patients except for medical reasons or reasons related to the well-being of other patients, and as a result of moving her to another nursing home she became fearful and disoriented and fell and fractured her hip while attempting to escape an imaginary threat; Count III: Proctor and Turtle Creek conspired to discharge Coleman for false reasons, this constituted fraud and deceit and complete disregard of Coleman’s rights and needs, and as a result she suffered mental anguish sufficient to cause physical pain and suffering, requiring expert medical care and attention; Count IV: Turtle Creek breached its contract and engaged in fraud and deceit in that the corporation, its agents, servants, employees knowingly and willfully misrepresented Coleman’s medical condition in order to wrongfully terminate the contract and increase profits, and this was part of a scheme to remove less profitable patients who had been reclassified by HRS. The lower court dismissed these three counts of the second amended complaint. The court did not dismiss the second count, against Dr. Proctor only, alleging that in permitting Coleman to be discharged from the nursing home, Proctor was guilty of medical negligence and deviation from acceptable standards of care in that he knew or should have known Coleman was senile and continued to require the assistance of a trained nursing home staff and he knew or should have known she had mentally regressed to a childlike state, therefore moving her abruptly would entail severe psychological risks to her mental well-being.

In this appeal of the dismissal of counts I, III, and IV, appellant argues she properly stated a claim for negligence and that the absence of any physical impact is irrelevant in this case. As to Count III, she argues that under the particular circumstances of this case she did not have to allege reliance in her claim of fraud and deceit. Finally, she contends the provisions of Section 400.-022, Florida Statutes, became part of the contract, and Turtle Creek breached this provision. Appellees contend, among other things, that the complaint itself shows that Turtle Creek was simply following Dr. Proctor’s orders, that no physical impact was alleged, and that appellant failed to allege reliance in the claim based on fraud and deceit.

The test to be applied in determining whether the counts should have been dismissed “is whether the complaint, construed in the light most favorable to the plaintiff, is sufficient to constitute a valid claim,” and the motion to dismiss should not be granted “unless the allegations in the pleading attacked show with certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of the claim.” MidFlorida Schools Federal Credit Union v. Fansler, 404 So.2d 1178 (Fla. 2d DCA 1981).

The dismissal of Count-1 was not erroneous, largely because of the failure to allege a direct physical impact inflicted by an external source, a necessary element in an action for negligent infliction of emotional distress, which is the essence of that count. See Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Cadillac Motor Car Division v. Brown, 428 So.2d 301 (Fla. 3d DCA 1983) and Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982), both pending before the Florida Supreme Court.

As to Count III, reliance must be alleged in order to state a cause of action for fraud and deceit, American International Land Corp. v. Hanna, 323 So.2d 567 (Fla.1975). Fraud and conspiracy must be pleaded with such particularity as the circumstances permit, and the facts constituting the conspiracy must be pleaded, Ocala Loan Co. v. Smith, 155 So.2d 711 (Fla. 1st DCA 1963). Appellant’s allegations of fraud and deceit and conspiracy do not measure up to these standards.

In Count IV appellant attempted to state a claim for breach of contract, however, as the act complained of was phrased in terms of a knowing, willful misrepresentation of Coleman’s medical condition, rather than being directed to any covenant undertaken as part of the contract, it was actually a reiteration of the claim for fraud and deceit, discussed above. “There is a clear distinction between a cause of action on contract and one based on fraud and deceit. In the former, recovery is based upon the express liability assumed by a person in his contract, and in the latter, upon the liability incurred for a violation of the duty of honesty and fair dealing which the law enjoins upon one in his transactions with another.” 37 Am.Jur.2d “Fraud and Deceit” § 6. Appellant now asserts that the breach of contract stemmed from a failure to comply with Section 400.022, Florida Statutes, which was part of the contract by virtue of the rule that the laws of the state are part of every contract, however, the count for breach of contract did not rest on this basis and the possibility of breach by noncompliance with Section 400.022, which appellant now argues, was not specifically presented to the lower court. The incorporation by reference of Count I, in which Section 400.-022 was mentioned briefly, but without regard to any alleged breach of contract, was insufficient to place the matter before the lower court for consideration.

Therefore, finding no error in the dismissal of these three counts of the second amended complaint, we AFFIRM.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Irving PICKER, as Class Representative, Appellant, v. Meyer LEVINSON, Aaron Kagan, Samuel Kotler, Louis Friedman, Arthur Budd, Frieda Euchman, Dr. Humberto Baez, Sadie Brodsky, Dr. Abraham Feldman, Henry Penso, and Armin Robinson, as officers and directors of the Maison Grande Condominium Association, Inc.; and Robert L. Siegel, as Trustee of the Robert L. Siegel Trust; and Avatar Holdings, Inc., a foreign corporation, Appellees.
    No. 82-2633.
    District Court of Appeal of Florida, Third District.
    May 31, 1983.
    Rehearing Denied Nov. 23, 1983.
    Bailey & Dawes and Robbie M. Colaluca, Miami, for appellant.
    Smith & Mandler and Patricia M. Silver, Miami Beach, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

The plaintiff, a unit owner and member of a condominium association, brought a class action challenging the proposed purchase of the recreation lease from the developer. The basis of his complaint concerned alleged technical improprieties in the proxies secured from other owners; and the lack of a properly conducted meeting of the association to ratify the contract. Section 718.111(12), Florida Statutes (1981), however, requires only the “approval” of two-thirds of the unit owners to purchase a recreation lease. See Waterford Point Condominium Apartments, Inc. v. Fass, 402 So.2d 1327 (Fla. 4th DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982). It specifically does not necessitate either formal proxies or an association meeting to evidence that approval. Compare, e.g., § 718.112(2)(f), Fla.Stat. (1981). The face of the complaint shows, and it was not suggested otherwise, that the required percentage of owners had in fact “approved”, that is, objectively signified their assent to the purchase. Black’s Law Dictionary 94 (5th ed. 1979). Since that is all that is legally necessary, the case was therefore properly dismissed with prejudice. The deficiency in the complaint is one which cannot be cured by amendment. DeMaris v. Asti, 426 So.2d 1153 (Fla. 3d DCA 1983); see also Affordable Homes, Inc. v. Devil’s Run, Limited, 408 So.2d 679 (Fla. 1st DCA 1982).

Affirmed.


author: JORGENSON, Judge.

text:
    3M ELECTRIC CORPORATION, Acadia Development Corporation, Miami Gardens Development Corporation and Florida Insurance Guaranty Association, Appellants, v. Mario VIGOA and Maria Vigoa, Appellee.
    Nos. 82-35, 82-111.
    District Court of Appeal of Florida, Third District.
    June 21, 1983.
    Rehearing Denied Sept. 12, 1983.
    Haddad, Josephs & Jack and Paul Richard Bloomquist; Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe and Susan J. Silverman, Miami, for appellants.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy & Graham, and Richard Blomqvist and Richard A. Sherman, Miami, for appellees.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

The Vigoas brought a negligence action founded upon injuries sustained by their minor child. 3M Electric Corporation, Acadia Development Corporation and Cosmopolitan Mutual Insurance Company were joined as defendants. 3M counterclaimed for contribution, alleging that the Vigoas failed to exercise reasonable care in supervising their child. The counterclaim was dismissed. The order of dismissal was affirmed by this court upon a holding that Florida’s intrafamily tort immunity doctrine precluded the contribution claim. See 3M Electric Corp. v. Vigoa, 369 So.2d 405 (Fla. 3d DCA 1979) [hereinafter cited as 3M Electric Corp. I]. Miami Gardens Development Corporation was then joined as an additional defendant. Thereafter, 8M refiled its counterclaim finding encouragement in this court’s decision in Quest v. Joseph, 392 So.2d 256 (Fla. 3d DCA 1980), quashed, 414 So.2d 1063 (Fla.1982), wherein we expressly receded from 3M Electric Corp. I and held that a contribution claim may be maintained against the parent of a minor child plaintiff. The counterclaim was again dismissed. Florida Insurance Guaranty Association, Cosmopolitan’s successor, was then joined as an additional defendant. Acadia, Miami Gardens and Florida Insurance counterclaimed against the Vigoas for contribution. 3M moved to reinstate its contribution counterclaim. Acadia, Miami Gardens and Florida Insurance’s counterclaim was dismissed and 3M’s motion to reinstate its counterclaim was denied by the trial court upon a finding that “Although Quest v. Joseph changed the then existing law of 3M Electric Corporation v. Vigoa, it is the prerogative of the appellate court rather than the trial court to change the ‘Law of the Case’ herein if it so desires.”

Because we do so desire, for the reasons which follow, we change the law of this case, reverse and remand for further proceedings consistent with the views expressed herein.

In so doing we recognize that insofar as 3M was concerned it was the trial court’s duty to follow the law of the case as set forth in 3M Electric Corp. I; for doing that which he should, the trial court will be commended, not criticized. See Beverly Beach Properties, Inc. v. Nelson, 68 So.2d 604 (Fla.1953), cert. denied mem., Rensta v. Beverly Beach Properties, Inc., 348 U.S. 816, 75 S.Ct. 27, 99 L.Ed. 643 (1954). The law of the case announced in 3M Electric Corp. I, however, was the law of the case only as to 3M, not Acadia, Miami Gardens and Florida Insurance, which were not parties to the counterclaim there appealed and therefore were without an opportunity to argue the issue. See Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied mem., 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952); Dixie Farms, Inc. v. Hertz Corp., 343 So.2d 633 (Fla. 3d DCA 1977); Rader v. Otis Elevator Co., 327 So.2d 857 (Fla. 1st DCA), cert. denied m,em., 336 So.2d 602 (Fla.1976); Biscayne Construction, Inc. v. Wesley Construction Co., 276 So.2d 524 (Fla. 3d DCA), cert. denied mem., 284 So.2d 224 (Fla.1973); Seaboard Coast Line Railroad Co. v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972).

As for 3M, in Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965), the Florida Supreme Court most recently established the criteria under which a court may reconsider and correct erroneous rulings which have become the law of the case. We therefore turn to that analysis for guidance for our conclusion that the law of the case sub judice must be changed. An appellate court should reconsider a point of law previously decided only as a matter of grace; such reconsideration is not a right and should not be made save in unusual circumstances, for the most cogent reasons, where manifest injustice will result from rigid adherence to the law of the case. Strazzulla at 4. There should be no reconsideration when such would amount to nothing more than a second appeal of a question determined on the first appeal. Id. In short, the law of the case does not rigidly bind a court to its former decisions; it is only addressed to its “good sense.” Id. (citing Higgins v. California Prune & Apricot Grower, Inc., 3 F.2d 896, 898 (2d Cir.1924) (Learned Hand, J.)). Where there has been an intervening decision by a higher court contrary to the decision reached on the former appeal, the law of the case should be corrected, thereby making unnecessary resort to the higher court for relief. Strazzulla 177 So.2d at 4.

Perhaps the ‘good sense’ of which Judge Hand spoke comes down to a calculus of the relative unseemliness of a court’s altering a legal ruling as to the same litigants, with the danger that this may reflect only a change in the membership of the tribunal, and of its applying one rule to one pair of litigants but a different one to another pair identically situated. This explains why a clear conviction of error on a point of law that is certain to recur ... will prevail over ‘the law of the case’ whereas ‘mere doubt’ will not. In the former instance the court knows that later litigants will be governed by a different rule; in the latter that is only a possibility.

Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.1964), quoted in Strazzulla, 177 So.2d at 4-5.

In 3M Electric Corp. I, we held that a defendant could not seek contribution from the parent of a minor child plaintiff. In Quest we held to the contrary, while this case was still pending below, and expressly acknowledged the error we committed with 3M Electric Corp. I, on rehearing confirming “the consignment of [3M Electric Corp. I] to oblivion,” Quest, 392 So.2d at 258. In quashing our decision in Quest, the supreme court in fact modified our holding to the extent that contribution is available against the parent of a minor child plaintiff only to the extent of existing liability insurance coverage for the parents’ tort against the child. See Quest, 414 So.2d at 1065. That decision is now the law of this court, see Quest v. Joseph, 416 So.2d 27 (Fla. 3d DCA 1982), the law of this state and must, in the interest of justice, be the law of this case. We now, therefore, truly and finally consign 3M Electric Corp. I to the oblivion it deserves, and with it the late law of this ease.

Reversed and remanded for further consistent proceedings.


author: DANIEL S. PEARSON, Judge.

text:
    GULFSTREAM PARK RACING ASSOCIATION, INC., a Florida corporation, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING and State of Florida Department of Business Regulation, Florida Pari-Mutuel Commission, Respondents. Hialeah, Inc. and Tropical Park, Inc., Amici Curiae.
    No. 83-1492.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 1983.

      Landefeld & Romanik and David S. Ro-manik, Hollywood, for petitioner.
    Elliot Henslovitz, David M. Maloney and Harry Pernell, Tallahassee, for respondents.
    Horne, Rhodes, Jaffry & Horne and Edward S. Jaffry, Taylor, Brion, Buker & Greene and James C. Pilkey, Tallahassee, for amici curiae.
    Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In this world, nothing is certain but death, taxes and that Gulfstream and Hialeah will do annual battle for the highly desirable “middle dates” of South Florida’s winter thoroughbred racing season. We have been called upon to referee the 1983 fight or, at least, the opening rounds.

I.

In December 1982, Gulfstream Park Racing Association, Inc. (Gulfstream) filed its application requesting that the Florida Pari-Mutuel Commission (Commission) allocate to Gulfstream January 9, 1984, through March 6, 1984, the so-called “middle dates,” for its race meeting and that the Division of Pari-Mutuel Wagering (Division) issue to Gulfstream a license to conduct thoroughbred racing. The simultaneous application of Hialeah, Inc. (Hialeah) contained the identical requests.

At or about the same time as it made its application, Gulfstream brought suit in the Circuit Court in Dade County for declaratory and injunctive relief. Gulfstream’s suit called into question the constitutionality of Section 550.081, Florida Statutes (1981). Gulfstream asserted that the statute which authorizes the Commission to allocate racing dates among permitholders during the winter thoroughbred racing season is an unlawful delegation of legislative authority because it is lacking in guidelines or standards to be used by the Commission in making its allocation decision. Because this same constitutional issue was then pending before the Fourth District Court of Appeal (the chosen referee of the 1982 version of the Hialeah-Gulfstream confrontation), the parties agreed below to await the decision of the Fourth District and, concomitantly, to have removed from the Commission’s January 1983 agenda their allocation applications, to waive the time requirements of Section 550.011(2), Florida Statutes (1981), see infra, and agreed further that “[t]he Commission will not consider awarding the three periods for the 1983-1984 Season until after April 15, 1983.”

In March 1983, the Fourth District ruled. Its decision prospectively declared Section 550.081, Florida Statutes (1980), unconstitutional as violative of the nondelegation doctrine. See Hialeah, Inc. v. Gulfstream Park Racing Association, Inc., 428 So.2d 312 (Fla. 4th DCA 1983). April, May and most of June 1983 came and went. On June 29, 1983, Gulfstream, fresh from victory in the 1982 bout, sought to avoid the inevitable rematch. Resurrecting Section 550.011(2), Florida Statutes (1981), which provides in pertinent part:

“If the Florida Pari-mutuel Commission does not take action on the request for days of operation and number of performances by March 15 in any year, then the days that are requested that are not in conflict with the operating days of another permitholder within 50 air miles shall be automatically awarded ...,”

Gulfstream petitioned this court to issue a writ of mandamus compelling the Commission to assign to Gulfstream the requested middle dates and compelling the Division to issue the license therefor. Gulfstream argues that its stipulation to waive the March 15 deadline did no more than toll the necessity for Commission action from January 14, 1983, the date of the stipulation, to April 15, 1983, the date after which the Commission was free to act. That being the case, its argument continues, more than ninety days (sixteen before the stipulation and seventy-five after April 15) elapsed from the time of the filing of its application and under Section 120.60(2), Florida Statutes (1981), a license must issue.

We immediately issued a rule to show cause to the respondents and learned from their response that on July 1, 1983, the Division had entered an order “awarding” the middle racing dates to Hialeah and the later dates (March 7, 1984, through May 3, 1984) to Gulfstream.

Gulfstream countered with a petition for issuance of extraordinary writ challenging the Division’s award to Hialeah under every conceivable theory. Hialeah and Tropical Park, Inc. (Tropical) were thereafter granted leave to appear as amici curiae in these proceedings.

II.

We deny Gulfstream’s petition for writ of mandamus. A necessary predicate to mandamus relief is that the duty which the petitioner seeks to have the respondent discharge be ministerial. See State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21 (1936); Tallahassee Memorial Regional Medical Center v. Lewis, 399 So.2d 106 (Fla. 1st DCA 1981). The allocation of racing dates, where, as here, more than one track has applied for the same dates, is manifestly not a ministerial function. Cf. State ex rel. Calder Race Course, Inc. v. Department of Professional Business Regulation, 429 So.2d 103 (Fla. 3d DCA 1983) (where sole applicant for particular racing dates indisputably meets all the requirements, conditions and qualifications for a permit to conduct thoroughbred racing, the duty to grant the permit is mandatory and not discretionary); Tropical Park, Inc. v. Department of Business Regulation, 433 So.2d 1329 (Fla. 3d DCA 1983) (same). Gulfstream argues, however, that because the authority of the Commission to allocate in Section 550.081(3), Florida Statutes (1981), has been declared unconstitutional, see Hialeah, Inc. v. Gulfstream Park Racing Association, Inc., 428 So.2d 312, without affecting the severable mandatory provisions of that section or other sections of Chapter 550, Tropical Park, Inc. v. Department of Business Regulation, 433 So.2d 1329 (Fla. 3d DCA 1983), the function of the Commission has been reduced to a ministerial one — award the dates requested by any qualified applicant.

The cornerstone of Gulfstream’s argument, whatever its merit otherwise, is the Fourth District’s holding that the legislative delegation of power to the Commission to allocate racing dates to competing tracks is unlawful. Because we are of the view that Section 550.081(3) is constitutional despite our sister court’s holding to the contrary, Gulfstream’s argument is without support.

Our disagreement with the Fourth District’s holding in Hialeah, Inc. v. Gulfstream Park Racing Association, Inc., 428 So.2d 312, lies in that court’s rejection of the argument advanced by the Commission that standards and guidelines announced in decisions of the Florida Supreme Court had been implicitly adopted by the Legislature when it reenacted Section 550.081(3) in 1980. We believe this argument has merit.

The first attempt by the Legislature to allocate racing dates between Hialeah, Gulfstream and Tropical came in 1947 when the Legislature in Section 550.081 provided that the track producing the largest amount of tax revenue during the preceding year be given its choice of racing dates, with the next highest producer receiving the second choice. Gulfstream challenged the constitutionality of the statute as being self-perpetuating in favor of Hialeah, which, at the time of enactment, had the middle dates which consistently produced the largest amount of tax revenue. The trial court found the statute unconstitutional, and on appeal the Supreme Court affirmed. See Hialeah Race Course, Inc. v. Gulfstream Racing Association, Inc., 245 So.2d 625 (Fla.1971). Significantly, the court stated:

“The basic effect of our decision is to restore to the State Racing Commission and other appropriate authorities the discretionary power to assign the racing dates among the horse tracks located in Dade and Broward counties in the next and succeeding racing years in the manner provided by law, unaffected by voided § 550.081, Florida Statutes, F.S.A.” 245 So.2d at 629-30 (emphasis added).

A year later, in Hialeah Race Course, Inc. v. Board of Business Regulation, 270 So.2d 366 (Fla.1972), the Supreme Court explained what it meant by allocating dates in “the manner provided by law”:

“This decision [Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., 245 So.2d 625] did not vest the Board with an unbridled discretion in fixing the periods of operation for the various horse tracks....
“The effect of our decision in Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., supra, was to require a reconsideration of racing periods and allocate them in accordance with the following criteria:
“(a) The interest of the, State;
(b) The interest of the track owner;
(c) The good-will;
(d) The quality of the horses;
(e) The track facilities;
(f) Geography; and
(g) Skill in management.
“After these criteria have been met, the racing date should be decided in a fair and impartial manner_” 270 So.2d at 369.

The court found further that the constitutionally-required “equality of opportunity” among permittees was satisfied by a fact-finding hearing discussing and applying the seven previous listed criteria. 270 So.2d at 371.

When in 1971 the Supreme Court restored to the State Racing Commission the discretionary power to assign racing dates, no statutory standards or guidelines for the exercise of that discretion existed. When in 1972 the court delineated the criteria for allocation, it did so against the backdrop of a statute that merely vested the Board with discretion to allocate. Assuming, arguendo, that the Legislature was free to adopt other or additional standards consistent with the constitutional principles outlined in these decisions, its adoption in 1980 of a statute containing no specific criteria for allocation is, in our view, an adoption of the criteria set forth in Hialeah Race Course, Inc. v. Board of Business Regulation, 270 So.2d at 369, where the court was confronted with a similarly stan-dardless statute. While it may very well be that a court has no business judicially creating standards to fill a hiatus left by the Legislature, and that the 1972 decision is thus open to criticism, once such judicial standards have been created, the Legislature is presumed to know of their existence and to act in accordance therewith. State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1973); Peninsular Supply Co. v. C.B. Day Realty of Florida, Inc., 423 So.2d 500 (Fla. 3d DCA 1982). Cf. Brown v. Brown, 432 So.2d 704 (Fla. 3d DCA 1983). Considering this time-honored rule of statutory construction in combination with the rule that statutes are presumed to be constitutional if there is any reasonable theory to that end, and shall be construed, if possible, in such a manner as to render them constitutional, Schultz v. State, 361 So.2d 416 (Fla.1978); Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976), we conclude that the Legislature intended to incorporate into Section 550.081(3), Florida Statutes (1980), the criteria set forth in Hialeah Race Course, Inc. v. Board of Business Regulation, 270 So.2d at 369, to be used by the Commission in making its allocation decision. We therefore hold that Section 550.081(3) does not unlawfully delegate legislative authority to the Commission and is constitutional.

Although we have decided that the Commission is not mandatorily required to award Gulfstream the middle dates, it is required to allocate those dates as between Hialeah and Gulfstream after an appropriate hearing in which the applicants will have an opportunity to establish their entitlement to these dates in accordance with the criteria implicitly adopted by the Legislature.

Finally, it is abundantly clear that the award of the middle dates to Hialeah and the denial of such an award to Gulfs-tream made by the Division was made without authority. The Commission, not the Division, is given the authority to allocate racing dates under Chapter 550. Administrative agencies, such as the Division, being creatures of statute, have only such power as the statutes confer. Florida Bridge Co. v. Bevis, 363 So.2d 799 (Fla. 1978); City of Cape Coral v. GAC Utilities, Inc. of Florida, 281 So.2d 493 (Fla.1973); State v. Office of the Comptroller, 416 So.2d 820 (Fla. 2d DCA 1982); Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908 (Fla. 1st DCA), cert. denied, 360 So.2d 1247 (Fla.1978); State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA), cert. dismissed, 300 So.2d 900 (Fla.1974). Any reasonable doubt about the lawful existence of a particular power that is being exercised by an administrative agency is to be resolved against its exercise. Florida Bridge Co. v. Bevis, 363 So.2d 799; City of Cape Coral v. GAC Utilities, Inc. of Florida, 281 So.2d 493. In the present case, however, there is not the slightest doubt that the Division is not possessed of the power to allocate. Both Section 20.16(4)(a) and Section 550.011(1), Florida Statutes (1981), expressly provide that the Commission “shall not delegate [its function to approve the dates for racing] to any subordinate officer or division.” The Division’s action is, accordingly, declared to be null and void.

In conclusion, we deny Gulfstream’s petition for writ of mandamus upon a holding that the Commission is lawfully possessed of the discretionary power to allocate racing dates under Section 550.081(3), which is to be exercised, applying appropriate criteria, after due notice and hearing have been afforded the applicants. We grant Gulfs-tream’s petition for writ of quo warranto challenging the authority of the Division’s order awarding Hialeah the middle dates and quash such order upon a holding that the Division was without authority to enter this order.

      . On the certainty of death and taxes, see Daniel Defoe, History of the Devil, and Benjamin Franklin,- Letter to M. Leroy, 1789. On the certainty of the annual battle between Gulfs-tream and Hialeah, consult indices to the Southern Reporter under either name.

      . Section 120.60(2) provides in pertinent part: "[E]very application for license shall be approved or denied within 90 days after receipt of the original application .... Any application for a license not approved or denied within the 90-day ... period ..., shall be deemed approved and, ... the license shall be issued.”

      . It necessarily follows from Gulfstream’s position that the Commission would be required to award Hialeah the middle dates as well in derogation of a separate statutory provision that ”[n]o horse tracks licensed to engage in the conduct of running races located within 100 air miles of each other shall operate on the same dates...." § 550.011(1), Fla.Stat. (1981).

      . This question was not reached in Tropical Park, Inc. v. Department of Business Regulation, 433 So.2d 1329 (Fla. 3d DCA 1983), and State ex rel. Calder Race Course, Inc. v. Department of Professional Business Regulation, 429 So.2d 103 (Fla. 3d DCA 1983), both of which could be, and were, decided - by reference to statutes other than subsection (3) of Section 550.081.

      . Accordingly, we need not address an alternative argument made by Tropical, as amicus, that Sections 20.16, 550.011 and 550.07, Florida Statutes (1981), none of which have been declared unconstitutional, give the Commission power to allocate.


author: PER CURIAM. PER CURIAM.

text:
    INLET SHORES CIVIC ASSOC., INC., etc., Appellant, v. CITY OF NEW SMYRNA BEACH, etc., and Ponce DeLeon Realty Corporation, etc., Appellee.
    No. 82-1659.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 1983.
    On Rehearing Dec. 8, 1983.
    Thomas D. Wright, New Smyrna Beach, for appellant.
    Sid C. Peterson, Jr., New Smyrna Beach, for appellee Ponce DeLeon Realty Corp.
    No appearance for-appellee City of New Smyrna Beach.
   PER CURIAM.

AFFIRMED.

DAUKSCH and SHARP, JJ., and MIZE, Associate Judge, concur.

ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing in this case because our affirmance without opinion may cause future misunderstandings and errors, and we adopt the following as our opinion. The appellant, Inlet Shores Civic Association, Inc., did have standing to bring its cause of action against the City of New Smyrna Beach to object to the city’s use of a lot in a subdivision, which was burdened with restrictive covenants intended to benefit other lands owned by members of the appellant. The city acquired title to the lot in this case by a warranty deed from the developer, for the purpose of establishing a public easement thereon.

In Ryan v. Town of Manalapan, 414 So.2d 193 (Fla.1982), the Florida Supreme Court answered the following question certified to it as one of great public importance in the negative:

DO RESTRICTIVE COVENANTS AFFECTING THE USAGE OF LAND APPLY TO A PUBLIC BODY WHICH ACQUIRES THE LAND BY PURCHASE AS OPPOSED TO ACQUISITION BY EMINENT DOMAIN?

Id. at 195. Ryan controls this case, and the judgment is therefore

AFFIRMED.

DAUKSCH and SHARP, JJ., and MIZE, Associate Judge, concur.


text:
    Robert David DOMBERG, Jr., Petitioner, v. STATE of Florida ex rel. John W. PEACH, Respondent.
    No. AU-174.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1983.
    Rehearing Denied Nov. 3, 1983.
    J. Victor Africano, Live Oak, for petitioner.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for respondent.
   JOANOS, Judge.

Robert David Domberg, Jr. petitions this court for a writ of prohibition to bar criminal prosecution for kidnapping, asserting that the statute of limitations had expired.

By indictment dated March 2, 1983, it was alleged in Count III that Domberg had committed the offense of kidnapping on March 14, 1979. An “amended indictment” was returned on April 2, 1983, alleging verbatim the same kidnapping, under the same count. Amendments to the indictment entailed the addition of another defendant on Counts I, II and IV. No new charges were made against Domberg.

Section 775.15(2), Florida Statutes (1981), requires that prosecution be commenced within four years. Since the amended indictment was returned more than four years from the date of the alleged kidnapping, we must determine if the amended indictment was sufficiently linked to the first indictment so as to show a continuation of the same prosecution. Mead v. State, 101 So.2d 373 (Fla.1958).

Since the crime at issue here was alleged in the two indictments in identical language, the notation “amended indictment” was sufficient linkage to indicate that the State was pursuing the same prosecution against Domberg begun by the initial indictment. See Rubin v. State, 390 So.2d 322 (Fla.1980).

Accordingly, Domberg’s petition for writ of prohibition is DENIED and the previously issued order to show cause is DISCHARGED.

MILLS and WIGGINTON, JJ., concur.


text:
    Carlos PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2321.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Rehearing Denied Jan. 20, 1984.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 363 So.2d 331 (Fla.1978); German v. State, 379 So.2d 1013 (Fla. 4th DCA 1980), cert. denied, 388 So.2d 1113 (Fla.1980); Crespo v. State, 379 So.2d 191 (Fla. 4th DCA 1980), cert. denied, 388 So.2d 1111 (Fla.1980).


author: MILLS, Judge.

text:
    FLORIDA S & L SERVICES, INC., Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. AQ-24.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.

      Barrett G. Johnson, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Linda Lettera, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Florida S & L Services, Inc. (S & L) appeals from a declaratory statement issued by the Department of Revenue (DOR) holding that charges for intrastate private telephone line services provided by S & L to its customers are subject to the Florida sales tax provided by Section 212.05(5), Florida Statutes (1979), now Section 212.-05(l)(e), Florida Statutes (Supp.1982). We reverse.

S & L is a corporation engaged in the furnishing of computer information to various financial institutions located around the state. The information is transmitted by means of a number of intrastate private telephone lines provided by Southern Bell.

In response to an inquiry by a Southern Bell official, the DOR notified Southern Bell that the intrastate private line services that it provided to S & L were subject to the Florida sales tax pursuant to Section 212.05(l)(e) and Rule 12A-1.46(1), Florida Administrative Code. Southern Bell subsequently began including the amount of this tax in its bills to S & L.

S & L then filed a petition for a declaratory statement from the DOR, seeking a determination of the taxability of this private line telephone service resulting in the declaratory statement appealed.

Section 212.05(l)(e) provides, in pertinent part:

It is hereby declared to be the legislative intent that every person is exercising a taxable privilege who ... furnishes any of the ... services taxable under this chapter ....
(e) At the rate of 5 percent on charges for ... long distance telephone calls beginning and terminating in this state; on recurring charges to regular subscribers for local telephone services;

Rule 12A-1.46(1) provides, in pertinent part:

Charges for ... long distance telephone calls, beginning and terminating in the state, and recurring charges to regular subscribers for local telephone services, including ... charges for intrastate wide-area telephone service (WATS), are taxable ....

Prior to the enactment of Section 212.-05(l)(e), all communication services were exempt from the Florida sales tax. Pursuant to Section 212.05(l)(e), the Florida Legislature eliminated the exemption of all communication services and provided for the imposition of Florida sales tax upon the communication services specifically enumerated in the section. Attorney General Opinion 068-62, 1967-1968 Florida Attorney General Biennial Report 260.

The Attorney General’s opinion further states:

This is a taxing Statute with a penal provision. This means that the statute must be strictly construed against the taxing power and in favor of the taxpayer. Lovett v. Lee, 141 Fla. 395, 193 So. 538. All doubts and ambiguities are resolved in favor of the taxpayer. Taxes cannot be imposed except in clear, unequivocal language. Taxation by implication does not exist.

The language of Section 212.05(l)(e) is clear on its face. The DOR’s interpretation contravenes the plain language of the statute.

The legislature did not tax all communication services. It taxed only those specifically enumerated in the statute. These are: (1) recurring charges to regular subscribers for local telephone service; and (2) charges for long distance calls originating and terminating in this state. Nowhere in Section 212.05(l)(e) is there a tax imposed on private lines.

Section 212.05(l)(e) is a taxing statute with a penal provision. It must be strictly construed against the taxing power and in favor of the taxpayer.

Private lines are not a local service. Obviously, a private line from Orlando to another Florida town cannot be characterized as local telephone service. Nor can private lines be characterized as long distance calls. The telephone company bases its charges for long distance calls on the time taken by the calls, the time of day the calls are placed, and the distance between the originating and terminating points. Private lines are not measured. Therefore, private lines are not subject to the sales tax.

Immediately after passage of Section 212.05 in 1968, the DOR promulgated Rule 12A-1.46. Pursuant to that rule, it is the DOR’s position that WATS line services are subject to the sales tax. It argues that private lines and WATS lines are so similar that private lines are covered by this rule.

This argument is fallacious. Taxes cannot be imposed except in clear and unequivocal language. Taxation by implication is not permitted.

The charge for WATS lines is recurring, but the charge is not for local service. WATS is a long distance service which is not measured. The flat rate for WATS is a monthly recurring charge for service which is the same whether or not messages are transmitted. But private lines service is neither a local service nor a long distance call for which a charge is made; therefore, it is not subject to the sales tax.

Both private lines and WATS existed in 1968. The legislature is presumed to have known of their existence. The legislature could have simply omitted the word local from the statute and thereby taxed recurring charges of whatever nature. The legislature did not do this, and that choice of wording must be given effect.

Taxing statutes are construed against the taxing power. Charges for private lines are neither “recurring charges to regular subscribers for local telephone service” nor “long distance calls” and are therefore not subject to the tax imposed by Section 212.05(l)(e), Florida Statutes.

Although other issues have been raised, it is unnecessary that we address them because of this ruling.

REVERSED.

ERVIN, C.J., and LARRY G. SMITH, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Lee SCARFONE and Patricia Scarfone, Appellants, v. Hugh F. CULVERHOUSE and Joy Culverhouse, Appellees.
    No. 83-83.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Rehearing Denied Jan. 16, 1984.

      T. Terrell Sessums and Carole A. Taylor of Sessums & McCall, Tampa, for appellants.
    Grover G. Freeman and David P. Rankin of Freeman & Lopez, P.A., Tampa, for ap-pellees.
   HOBSON, Acting Chief Judge.

Lee and Patricia Scarfone, defendants below, appeal an order granting a mandatory injunction in favor of Hugh F. and Joy Culverhouse. We affirm.

On August 25, 1976, Hugh F. Culver-house entered into a lease agreement with the Pinnacle Apartments Joint Venture to lease Penthouse Apartment No. 5 on the 19th floor in the Pinnacle Apartments. The lease agreement provided for improvements and remodeling which included enlarging the kitchen area and enclosing a portion of what was originally an open patio, extending the roof of the unit by approximately 20 feet. The lease agreement also included a provision for an option to purchase Penthouse Apartment No. 5. On June 3, 1977, Penthouse No. 5 and Balcony Penthouse No. 5 of the Pinnacle Apartments were conveyed to Hugh F. and Joy M. Culverhouse. On August 14, 1978, Penthouse No. 6 was conveyed to the Cul-verhouses. These three units comprise the entire 19th floor of the Pinnacle Apartments.

On January 24, 1980, title to Penthouse No. 1 located on the 22nd and 23rd floors of the Pinnacle Apartments was conveyed to Lee and Patricia Scarfone. It was the Scarfones’ intention to make certain alterations to the apartment prior to moving in. One of these alterations included insertion of a window in the south wing wall of their penthouse. The Scarfones were informed by the realtor for the Pinnacle Apartments that these changes required approval of the Board of Directors of the condominium association. At Mr. Scarfone’s request, the realtor then obtained a set of plans from Mr. Scarfone and explained them to several members of the Board of Directors. The realtor had performed similar services for the Richardsons who made changes to their condominium unit on the 17th floor. During a subsequent meeting of the Pinnacle Association, the Board discussed the building alterations to the condominium unit owned by Mr. Scarfone. According to the minutes of that meeting, Mr. Scarfone agreed to meet all the requirements put forth by the Board prior to the commencement of construction. On May 13, 1980, the Board of Directors met again. The minutes of that meeting reflect that the Board, at a previous meeting, had authorized modifications to the condominium unit owned by the Richardsons and the Scar-fones.

The Scarfones began construction of the window in the south wing wall of their condominium unit in the spring of 1981, after which Mr. Culverhouse filed a complaint against Mr. Scarfone requesting the court to enter an order requiring Mr. Scar-fone to comply with the covenants of the Declaration of Condominium Ownership of the Pinnacle Apartments by restoring the exterior wall to its original condition. On October 25, 1982, the trial commenced and, thereafter, the trial judge entered an order granting a mandatory injunction. The trial court found the exterior wall of Penthouse Unit No. 1 to be a common element and further that the Board of Directors did not have authority to approve changes to the exterior of the building. The trial court also found that the Scarfones’ estoppel argument, which was based upon certain changes made by the developer to the Cul-verhouse unit, was without merit. It is from that order that this appeal is taken.

On appeal, the Scarfones challenge these two findings by the trial court and raise the defense of selective enforcement. We have examined the first two points and find them to be without merit. The Scar-fones argue, in their third point, that the trial court abused its discretion in awarding a mandatory injunction when there was selective enforcement of the condominium documents and where the equities favored the Scarfones. In support of their contention, the Scarfones urge that evidence was presented at trial that both the Culverhous-es and the Richardsons made alterations to their units which affected the exterior configuration of those units. As to the alteration of the Culverhouse unit, we are convinced, as apparently was the trial court, that there is clear distinction between the remodeling of the Culverhouse apartment undertaken by the developer pursuant to the lease agreement and the remodeling that took place by the Scarfones after the purchase of their unit. Section 20(g) of the Declaration of Condominium authorizes alterations of the type performed by the developer and, therefore, we do not address this point further. As to the Scarfones’ claim that the issuance of the mandatory injunction against the Scarfones constitutes selective enforcement of the condominium documents because the modification of the Richardson unit was reviewed and approved by the Board at the same time as the modification made by the Scarfones was reviewed and approved, we cannot agree.

In the case at bar, no full description of the alterations made by the Richard-sons was presented at trial. Thus, we are guided by the decision of our sister court in Schmidt v. Sherrill, 442 So.2d 963 (Fla. 4th DCA 1983), wherein the district court considered the interpretation and enforcement of a declaration of condominium and held in part that the record was devoid of competent substantial evidence to support the defense of selective enforcement. In Schmidt, the district court stated that the appellees could not cite other instances of glass enclosed balconies because they were the first to undertake such action. The defense of selective enforcement was, therefore, based on two contentions: 1) that several unit owners installed hurricane shutters which, when extended, enclosed the balcony area, and 2) that some unit owners utilized detachable cloth sun screens on their balconies. The district court stated that “neither of these conditions is sufficient to estop the association or any of its members from seeking legal redress to prevent the extensive structural alterations involved here.” Id. at 966. Similarly, in the instant case there was no showing in the record that the Richardsons’ alteration of their unit was comparable to the type of modification made by the Scar-fones to their condominium unit.

Accordingly, we hold that the trial court did not abuse its discretion in awarding a mandatory injunction because selective enforcement of the condominium documents was not shown to exist, and affirm the trial court’s order.

AFFIRMED.

DANAHY and LEHAN, JJ., concur.

      . Section 20(g) provides in pertinent part:
      The Developer does hereby reserve the right to construct porch enclosures with windows for a period of 15 years from the date hereof, as an alteration or addition to each of the condominium units without the express or implied consent or approval of the Association, provided, however, it is done by the consent of the condominium Owners with reference to the condominium unit involved.


author: COBB, Judge.

text:
    Timothy Leroy FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-835.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 1983.
    Rehearing Denied Jan. 13, 1984.
    Timothy Leroy Fowler, pro se.
    No appearance for appellee.
   COBB, Judge.

The prior decision and the mandate issued in this cause are hereby withdrawn, and Fowler’s motion for post-conviction relief is granted pursuant to State v. Green, 421 So.2d 508 (Fla.1982) and Grice v. State, 428 So.2d 672 (Fla. 5th DCA 1982).

In Green, the Supreme Court held that “if a judge wishes to retain jurisdiction, a defendant must be advised, prior to pleading guilty or nolo contendere, that the court can retain jurisdiction over a part of the sentence.” 421 So.2d at 510. In this case, Fowler has alleged that he was not informed of the possibility of retention pri- or to pleading guilty, and the state has not shown otherwise.

Accordingly, the cause is remanded for the trial court to either strike the retention of jurisdiction or allow Fowler to withdraw his guilty plea. As a consequence of our action in this case, Fowler’s petition for habeas corpus for belated review in Case No. 83-1418 is moot.

DECISION and MANDATE WITHDRAWN; REMANDED WITH INSTRUCTIONS.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.

      . The mandate was issued on August 12, 1983, during the current term of court; therefore, this court has jurisdiction to recall it. See State Farm Mutual Automobile Ins. Co. v. Judges of the District Court of Appeal, Fifth District, 405 So.2d 980 (Fla.1981); § 35.10, Fla.Stat. (1981) (regular terms of district courts of appeal to commence on the second Tuesday in January and July).


text:
    Geraldine YORK, individually and as personal representative of the estate of Richard L. York, deceased, Appellant, v. TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY, Appellee.
    No. 83-20.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1983.
    Rehearing Denied Jan. 9, 1984.
    Joseph S. Rodriguez, St. Petersburg, for appellant.
    Joseph W. Clark and Raymond T. Elli-gett, Jr. of Shackleford, Farrior, Stallings & Evans, Tampa, for appellee.
   PER CURIAM.

Appellant Geraldine York appeals the order of the trial court granting a final summary judgment in favor of appellee Trans-america Life Insurance and Annuity Company. We reverse.

Appellee filed an action in the trial court to rescind and cancel a life insurance policy in the amount of $100,000 on appellant’s deceased husband, Richard York. Appellant filed an answer and counterclaim seeking the proceeds of the insurance policy.

Upon review of the record, including depositions, hospital records, and briefs, and after oral argument, we hold that there is a genuine, triable issue of material fact as to whether the insured’s examining physician, Dr. David Jones, did or did not make a diagnosis of chronic alcoholism and cirrhosis of the liver upon examination of insured and prior to the issuance of the policy.

REVERSED and REMANDED for further proceedings consistent with this opinion.

OTT, C.J., and BOARDMAN and GRIMES, JJ., concur.


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

text:
    Darlene GOULD, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 83-185.
    District Court of Appeal of Florida, Fifth District.
    Dec. 1, 1983.
    Rehearing Denied Jan. 11, 1984.
    James A. Scott, Jr., of Sylvan A. Wells, P.A., Daytona Beach, for appellant.
    Reinald Werrenrath, III, of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Darlene Gould appeals from a final summary judgment denying her claim against Prudential for uninsured motorist benefits under a policy issued to her.

Gould, while a passenger in a vehicle operated by Jeffrey Roy, suffered injuries when Roy’s car collided with an automobile driven by Gail Elaine Crapps. Gould’s amended complaint alleged that the combined negligence of Roy and Crapps caused the accident.

Prudential answered the amended complaint and denied coverage to Gould, raising as an affirmative defense an alleged settlement between Gould and Crapps which occurred without Prudential’s express consent. Gould’s policy with Prudential contained the following provision regarding uninsured motorist coverage:

SETTLEMENT

Neither you, your legal representative, nor anyone else entitled to payment under this part may settle with anyone responsible for the accident without our consent.

Gould replied to the affirmative defense and averred, inter alia, that Prudential was not prejudiced by the alleged unauthorized settlement. Summary judgment, however, was entered in favor of Prudential. On appeal, Gould argues that genuine issues of material fact exist as to whether Prudential has been prejudiced.

In Tucker v. Seward, 400 So.2d 505 (Fla. 5th DCA 1981), this court stated that a violation of the policy provisions of uninsured motorist coverage is not conclusive of the insurer’s responsibilities if there has been no prejudice to the insurer. See Southeastern Fidelity Ins. Co. v. Earnest, 378 So.2d 787 (Fla. 3d DCA 1979). Where factual issues exist as to prejudice to the insurer, summary judgment is improper. Johnson v. Home Indemnity Co., 377 So.2d 40 (Fla. 1st DCA 1979). See also Holinda v. Title and Trust Co., 438 So.2d 56 (Fla. 5th DCA).

In Bass v. Aetna Casualty and Surety Co., 199 So.2d 790 (Fla. 4th DCA 1967), the Fourth District noted that when a “consent clause” in an uninsured motorist provision is breached, prejudice to the insurer is presumed. Thus, the burden is on the party seeking to impose liability to demonstrate a lack of prejudice. The Bass court reversed a declaratory judgment in the insurer’s favor and held that the insureds should have the opportunity to demonstrate affirmatively that their failure to notify and obtain the consent of the carrier prior to suing the tortfeasor to judgment resulted in no prejudice to the carrier.

Both Johnson and Bass are consistent with the analysis applied in Kaplan v. Phoenix of Hartford Insurance Company, 215 So.2d 893, 895 (Fla. 3d DCA 1968), in which the court stated:

At the time the summary final decree was entered, there remained an unresolved material issue of fact as to whether the insurer had in fact been prejudiced by Kaplan’s settlement with the insured tortfeasor. The rebuttable presumption of prejudice in favor of the insurer was not sufficient to resolve this issue conclusively on a motion for a summary final decree.

In the case before us, Prudential claimed that its inability to seek contribution against Crapps and her insurer, Allstate, for the amount remaining under the Allstate policy presumptively and conclusively demonstrates prejudice. The question confronting us is whether a genuine issue of material fact was created by Gould’s mere denial of such prejudice.

While it is well established that the presumption of prejudice is rebuttable, see Holinda v. Title and Trust Co., Bass v. Aetna Casualty, we do not agree that at a hearing on motion for summary judgment issues of material fact regarding such presumption are created by the insured’s mere denial of prejudice. We believe the rule is that the presumption prevails over the denial and it is necessary for the insured to present some proof by affidavit or otherwise that the insurance company has not been prejudiced. See, e.g., Holinda v. Title and Trust Co. In other words, Prudential, by demonstrating on the face of the pleadings the execution of a release without its consent, sustained its initial burden of showing that Gould was not entitled to recover under the policy. It was then necessary for Gould to come forward with competent evidence revealing a genuine issue of material fact. Landers v. Milton, 370 So.2d 368 (Fla.1979).

The Kaplan decision does not reveal whether the insured offered any evidence of a lack of prejudice to defeat summary judgment though the opinion suggests that no such evidence was presented. If that was the case, and to that extent only, we are in conflict.

AFFIRMED.

COBB and COWART, JJ., concur.


text:
    John OWEN, individually and as personal representative of the estate of Mary Ann Owen, deceased, Appellant, v. BAY MEMORIAL MEDICAL CENTER, a political subdivision of Bay County, Florida; James DeRuiter, M.D.; Joe B. Harbison, M.D.; and Dorothy Daffin, R.N., Appellees.
    No. AP-457.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1983.
    As Clarified on Denial of Rehearing Jan. 17, 1984.

      Stanley Bruce Powell of Powell & Powell, Niceville and John E. Roberts, Marian-na, for appellant.
    Frank C. Bozeman and Edward P. Nic-kinson, III of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for ap-pellee Joe B. Harbison, M.D.
    William E. Harris of Johnston, Harris & Gerde, Panama City, for appellees Bay Memorial Medical Center and Dorothy Daffin, R.N.

      Richard Smoak of Isler, Brown, Smoak, Harrison, Nabors & Bussian, Panama City, for appellee Dr. James DeRuiter.
   JOANOS, Judge.

Owen appeals a final order granting ap-pellees Joe Harbison (Harbison) and Bay Memorial Medical Center (Bay) a new trial due to juror misconduct and denying Owen’s motion for a new trial on claims against appellees James DeRuiter (DeRui-ter) and Dorothy Daffin (Daffin). Bay and Harbison cross-appeal the same order which denied their motions for judgment in accordance with motion for directed verdict.

We affirm the trial court’s granting of a new trial by recognizing the trial judge’s discretion to order a new trial and the well documented position that the grant of a new trial should not be disturbed on appeal absent a clear showing of abuse of discretion. Florida First National Bank of Jacksonville v. Dent, 404 So.2d 1123 (Fla. 1st DCA 1981). The trial judge did not abuse his discretion by finding juror misconduct where the juror failed to disclose the recent, less than amicable ending of her client relationship with a partner of the attorney representing Bay. See Mobil Chemical Company v. Hawkins, 440 So.2d 378 (Fla. 1st DCA 1983), rehearing denied November 3, 1983.

The trial court properly denied Owen’s motion for a new trial against De-Ruiter, as DeRuiter’s liability is a separable issue. Fla.R.Civ.P. 1.530.

Owen’s failure to show that Daffin breached a duty or that her actions fell below the accepted standard of care provides ample support for the trial court’s directed verdict in her favor.

A motion for judgment in accordance with a motion for directed verdict should be granted only when there is no evidence presented upon which the jury could have lawfully reached its verdict. First National Bank of Stuart v. Jackson, 267 So.2d 697 (Fla. 4th DCA 1972). If the evidence is reasonably susceptible of supporting the jury verdict, then the motion should be denied. Wilson v. Tanner, 346 So.2d 1077 (Fla. 1st DCA 1977). Expert testimony reflected that Harbison’s actions fell below accepted medical standards and that a crash cart should have been near the patient. This evidence is reasonably susceptible of supporting the jury’s verdict, therefore the trial court properly denied the motion.

Accordingly, the trial court’s order granting a new trial to Bay and Harbison, denying Owen’s motion for a new trial against DeRuiter and Daffin, and denying Bay’s and Harbison’s motions for judgment in accordance with motion for directed verdict is AFFIRMED.

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


author: SCHWARTZ, Chief Judge. HUBBART, Judge

text:
    Carol Serns BERGMAN, daughter of the incompetent Ward, Beatrice Greenfield, Appellant, v. David R. SERNS, Appellee.
    No. 83-293.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Rehearing Denied Jan. 20, 1984.

      Ann Mason Parker, Miami, for appellant.
    Ruden, Barnett, McClosky, Schuster & Russell and Woodrow “Mac” Melvin, Jr. and James R. George, Fort Lauderdale, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

In resolving one of the most agonizing consequences of an all-too-familiar modern tragedy, we hold that the transfer of the elderly ward from her own home to a nursing or old age facility may not be ordered in the absence of an affirmative showing, which was not presented below, that such a placement is required for her proper care and well-being.

The ward in question, Mrs. Beatrice Greenfield, who is now eighty-one years of age, was declared incompetent in 1981 after suffering from Alzheimer’s Disease for several years. Formerly, as all acknowledge, a vibrant, intelligent and loving person, she is now afflicted with the disabilities of memory and cognition that dreaded ailment entails. Moreover, the profound adversity which has befallen Mrs. Greenfield has been greatly exacerbated by an appallingly bitter dispute over her interests and care — one which is also not uncommon in our society — between her two adult children, the appellant Carol Bergman and the appellee David Serns.

For many years, Mrs. Greenfield has lived in the oceanfront condominium home she shared with her husband before his death. For at least the past six years, she has done so with the aid of a full-time nurse which her affliction has rendered in-dispensible. In 1983, Mr. Serns, who is under an agreed, court-ordered obligation to provide, inter alia, for those nursing expenses, moved the probate court for an order requiring and approving his mother’s transfer, which he had previously arranged, to the Miami Jewish Home for the Aged. Both Mrs. Greenfield’s personal physician and one appointed by the court to examine her testified at the ensuing hearing that she was comfortable and receiving excellent care at home, and that she should remain in her home “for the present” and “for some years yet,” rather than suffer the trauma of being removed to a totally new and unfamiliar environment; there was no contrary expert testimony. On the basis, however, of his brief observation of and conversation with the ward herself at the hearing, the trial judge concluded:

The Court is now of the opinion, from personal observation, attempted conversation with Mrs. Greenfield ... that Mrs. Greenfield’s mental condition is such that she is completely out of touch with her surroundings ... there will be little difference to Mrs. Greenfield as to whether she is in a condominium or in a good nursing home.

On this ground, he ordered the transfer to take place. Mrs. Bergman appeals and we reverse.

Without the necessity of resorting to cliches either about one’s castle or the alleged “warehousing” of the elderly, it is plainly “one of the humane ideals which form the basis of our entire legal system,” Public Health Trust v. Brown, 388 So.2d 1084, 1086 (Fla. 3d DCA 1980), rev. denied, 399 So.2d 1140 (Fla.1981), that one has the presumptive right to live and remain in his or her own home, however modest, rather than in an institution, no matter how benign. As this is the rule of life, it is of course the rule of law. A long series of cases have stressed that, since a basic issue of freedom itself is involved, the most nonrestrictive mode of treatment practicable must be adopted and even the most obviously mentally ill person

who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends should never be hospitalized involuntarily.

In re Beverly, 342 So.2d 481, 487 (Fla.1977); In re Smith, 342 So.2d 491 (Fla.1977); C.N. v. State, 433 So.2d 661 (Fla. 3d DCA 1983). In Reigosa v. State, 362 So.2d 714 (Fla. 3d DCA 1978), this court reversed an order characterized as requiring the “draconian procedure,” 362 So.2d at 715, of involuntary hospitalization when there was no showing that the patient was unable to survive outside the hospital with the care of family or friends. This case, in which it clearly appears to the contrary, even more obviously requires the same result. See generally, Lake v. Cameron, 364 F.2d 657 (D.C.Cir.1966) (reversing commitment to hospital of woman suffering from senile brain disease and remanding for consideration of less restrictive courses of treatment extensively discussed at 364 F.2d 660-61, nn. 5-14).

Serns attempts to distinguish these decisions on the ground that they involve involuntary hospitalizations under the Baker Act, see Sec. 394.467(l)(b), Fla.Stat. (Supp. 1982), or similar procedures, rather than a guardianship such, as this. We think, however, that the differences work directly to the opposite of his contentions and the ruling below. Unlike those proceedings, in which the interests of the public and the state, which is a party to them, are directly involved, the only real concern of the probate court is for the best interests of the ward. In the present situation, when there is no medical indication that the incompetent should be institutionalized for care or treatment she is not receiving at home— and a showing that the transfer will indeed have adverse effects upon her — the only thing to be said in favor of institutionalization is that it is less expensive.

Since, however, it is, after all, either Mrs. Greenfield’s own money or an obligation properly to support her which is now at stake, see Guardianship of Ivarsson, 60 Wash.2d 733, 375 P.2d 509, 510 (1975), an order which unnecessarily takes her from her own home in order either to enrich her heirs or relieve her son of that obligation simply cannot be said to serve her “best interests.” The legislature has reflected just these considerations by mandating in Sec. 744.361(3), Fla.Stat. (1981) that

In case of an adult ward, the guardian shall honor the ward’s preferences as to place and standard of living, either as had been expressed or demonstrated by the ward prior to the determination of his incompetency, or as currently expressed by the ward, insofar as such a request is reasonable. Such preference should be compatible with the ward’s present resources and place and standard of living prior to the determination of his incompetency and shall be subject to review by the court, [e.s.]

This provision explicitly embodies the principle, which we have already expressed, that, insofar as possible, the ward should be permitted to remain in her home.

There is no doubt that the order before us is completely contrary to these basic decisional and statutory rules. The finding, based only on the trial judge’s manifestly inexpert observations that “there will be little difference to Mrs. Greenfield” whether she is in her own or in a nursing home is unsupported by any competent and substantial evidence — all the evidence is otherwise. More important, such a conclusion, even if justified by the record, cannot support an order requiring institutionalization. As a matter of law, a person’s home and an institution are not equally advantageous to his or her well-being. Unless it is economically infeasible or there is a good reason relating to the incompetent’s welfare for determining otherwise, the ward should be permitted to live out a life which has so preciously little fulfillment left in the familiar surroundings of the place he or she knows best and surely, though perhaps inarticulately, loves.

For these reasons, the order below is reversed and the cause remanded with directions to deny the motion to transfer.

Reversed.

HUBBART, Judge

(dissenting).

I entirely agree with the court that this case represents an agonizing modern tragedy which has been greatly exacerbated by the bitter court battles waged in this case between Mrs. Greenfield’s adult children. I cannot agree with the court, however, that the trial court abused its discretion in entering the order under review, an order from which Mrs. Greenfield’s guardian has taken no appeal. I would affirm the order appealed from in all respects, as it is supported by substantial, competent evidence in this record.

I

The controlling law is well-settled that under the Florida Guardianship Law [Ch. 744, Fla.Stat. (1981) ], the circuit court has broad discretionary powers over decisions made by a guardian for his ward, including those relating to the ward’s residence. Section 744.361, Florida Statutes (1981) provides that a guardian’s selection of a place of residence for his incompetent ward “shall be subject to review by the [circuit] court;” and upon the guardian’s petition for “[a]ny change of care, maintenance or treatment” for his ward, “[t]he [circuit] court shall enter such orders, with or without notice to interested persons, as may be proper.” § 744.371, Fla.Stat. (1981); see also § 744.102(15), Fla.Stat. (1981). These statutes invest the circuit court with wide discretionary authority when ruling upon guardianship matters, such as the place of a ward’s residence, which decisions may not be reversed upon appeal unless a showing of an abuse of discretion is clearly demonstrated. See In re Nusbaum’s Guardianship, 152 Fla. 31, 10 So.2d 661 (1942); Carroll v. Carroll, 127 Fla. 226, 172 So. 916 (1937); Ahlman v. Wolf, 413 So.2d 787 (Fla. 3d DCA 1982); Clayton v. Clayton, 275 So.2d 588, 589 (Fla. 1st DCA 1973). An abuse of discretion, in turn, has been classically defined in the leading case of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), as follows:

“Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”
Canakaris v. Canakaris, supra at 1203, quoting Delno v. Market Street Railway, 124 F.2d 965, 967 (9th Cir.1942).

II

In the instant case, a petition for a change of residence for the incompetent ward Mrs. Greenfield was filed by Mrs. Greenfield’s son David Serns. This petition was acquiesced in by Edward Golden, Mrs. Greenfield’s court-appointed guardian, and was opposed only by Mrs. Greenfield’s daughter Carol Bergman. The circuit court, therefore, had the authority to rule on this petition as if it had been filed by the guardian himself. See §§ 744.361, 744.371, Fla.Stat. (1981). The order which was later entered by the court on this petition is, then, clothed with a presumption of correctness and cannot be overturned on appeal unless a showing of an abuse of discretion is clearly demonstrated on this record. No such showing has been made, as the order under review is supported by substantial, competent evidence.

A

First, the record is clear that Mrs. Greenfield is suffering from Alzheimer’s disease which has left her in a devastated mental and physical condition, a condition which promises only to grow worse. Dr. Lyle B. Kunz, the court-appointed psychiatrist in this case, described Mrs. Greenfield’s condition in his report to the court as follows:

“Pursuant to your recent order of appointment regarding the guardianship of the above-named 81 year old widow, I examined her at her residence, Apt. 506, Maison Grande, 6039 Collins Avenue, Miami Beach, Florida, on December 21, 1982.
She was alert and ambulatory and in a condition quite similar to that found in my previous examination of her on August 4, 1981. She was disoriented to time and place, could not sustain a coherent conversation. She used words and talked and showed considerable emotion, all quite inappropriately. She could not answer questions relevantly, and would give a no answer to a question one minute and the next would give a ‘yes’ answer to the same question. She saw imaginary people about the apartment and called to them at times. In short, she showed characteristics completely compatible with Alzheimer’s disease, a primary, progressive degeneration of the brain, which renders her unable to be responsible for herself or her affairs and in need of total dependent care. Though fully mobile she is unable to dress herself adequately, feed herself, or take care of her personal hygiene.” A. 17

Moreover, the trial court fully confirmed these findings by personally observing Mrs. Greenfield in court. Mrs. Greenfield has no expressed preference as to where she should live as she is disoriented as to time and place. Indeed, no one on this appeal questions Mrs. Greenfield’s mental incompetency and no one has ever taken an appeal from the order of mental incompetency previously entered in this case.

Second, the record is clear that the Miami Jewish Home for the Aged, the nursing home in this case, is an exemplary nursing home with superior medical facilities and treatment services capable of giving first-rate medical attention and treatment to Mrs. Greenfield. The court in its opinion quite accurately states what the record clearly demonstrates, namely, that this nursing home is “a model facility of its type.” [p. 131, n. 2], Dr. Kunz in his report to the court describes this nursing home as follows:

“[T]he Miami Jewish Home for the Aged is not an average facility. It certainly has superior equipment and trained personnel capable of providing very high level care for all stages of the basic disease process from which Mrs. Greenfield is suffering.” A.17

Third, the record tends to indicate that Mrs. Greenfield would be better cared for in the long run by the Miami Jewish Home for the Aged, rather than by a single private nurse at home. Dr. Kunz in his report to the court so concluded as follows:

“In summary this is an 81 year old white widow with progressive Alzheimer’s disease; she may well remain in her present state for some years yet. On the issue of her well-being in the apartment as compared to the Miami Jewish Home for the Aged, I would say that her short-run well-being is best served by remaining in the apartment but that in the long-run she is likely to be better off in the Home for the Aged.” A.17

Given this showing, I think it far from unreasonable, fanciful, or arbitrary [and therefore no abuse of discretion] for the trial court to conclude, as it did, that Mrs. Greenfield’s long-range, best interests would be served if she resided in a first class nursing home — the Miami Jewish Home for the Aged — where she will be given superior medical attention for her devastated physical and mental condition. Mrs. Greenfield, sadly, is in a completely disoriented state; she is utterly unaware of where she is and unsurprisingly has no expressed preference as to where she should live. She is incontinent; she is dysfunctional; she is largely incoherent; and she needs round-the-clock medical treatment. Surely, it cannot be said that no reasonable person could have concluded, as the trial court did, that Mrs. Greenfield would be better cared for by the Miami Jewish Home for the Aged, rather than by a single private nurse at Mrs. Greenfield’s home where she resides alone. At the very least, this is a question over which reasonable people may differ and therefore the order under review cannot be an abuse of discretion under the established law of this state.

Beyond that, it should be noted that the order under review has been acquiesced in by Edward Golden, Mrs. Greenfield’s court-appointed guardian, who has taken no appeal therefrom. This is not a case, then, where the ward’s guardian is protesting the court’s decision as to his guardian’s place of residence; indeed, his ward has no expressed preference in the matter. Only Mrs. Greenfield’s daughter Carol Bergman objects and has taken the appeal in the case as a “next friend.” I am frankly dubious whether she has any standing to take this appeal, but, even if she does, I am loath to upset this order at her behest given the state of this record, given the fact that the ward’s guardian has taken no appeal from the order, and given the fact that Mrs. Bergman has been removed as Mrs. Greenfield’s guardian by the trial court for failing to represent the best interests of her mother.

B

I recognize the force of the court’s abstract argument that we should presumptively prefer the home of the incompetent ward as the place where the ward should ordinarily reside — although I question the court’s wholesale enlistment of Baker Act eases to reach that result. Moreover, I entirely agree that both the guardian and the court should presumptively prefer a ward’s expressed wishes to remain in her home as her place of residence. See § 744.361(3), Fla.Stat. (1981). In the instant case, however, Mrs. Greenfield has no expressed preference as to where she should live, given her devastated physical and mental condition; moreover, there are good and sufficient reasons, as previously indicated, that she would be better cared for in the long run by the Miami Jewish Home for the Aged. Whatever presumption in favor of the ward’s home may exist, this presumption was more than overcome by the evidence adduced below in this record.

I know it is always sad to remove an ailing, elderly, incompetent ward from her home to a nursing home, even a first-rate one. Still, there comes a time when that soul-wrenching decision must be made as it is in the long-range best interests of the incompetent ward. I think it is not unreasonable, and therefore no abuse of discretion, for the trial court to conclude, as it did, that this is one of those eases.

I would affirm.

      . The existence, propriety and extent of this obligation — which was initially based on the temporary resolution of a dispute as to whether Serns had been the recipient of a conveyance of Mrs. Greenfield’s assets which was invalid or, alternatively, had agreed to provide for her care in return for that conveyance — is the subject of continuing litigation below and is not before us. We note only that there is no present issue concerning the adequacy of the ward’s assets— from whatever source — to provide for the more expensive care required in her home.

      . It is conceded that the home in question is in all respects a model facility of its type.

      . Since Mrs. Greenfield's guardian (appointed by the court after the bitter dispute between her children made it obviously impossible for either to serve in that capacity) has chosen to take no formal position concerning this order, we have, by denying Serns’ motion to dismiss this appeal, recognized Mrs. Bergman’s standing to challenge it as her mother’s, as it were, "next friend.” Hunt v. Hunt, 56 Tenn.App. 683, 412 S.W.2d 7 (1965), cert. denied (Tenn.1966); Guardianship of Ivarsson, 60 Wash.2d 733, 375 P.2d 509 (1962); Annot., Right of guardian ad litem or next friend to institute or appear in litigation, or in court, other than that in which he was appointed, 115 A.L.R. 571 (1938), and cases cited.
      We might add that Mrs. Bergman has at least as much right to seek review of the order as Mr. Serns had to secure it.

      . See note 1, supra.

      . This disposition is without prejudice to later reconsideration if Mrs. Greenfield’s condition or economic necessities, see note 1, supra, require it.


author: NESBITT, Judge.

text:
    HARBOUR HOUSE PROPERTIES, INC., Appellant, v. ESTATE OF Pearl G. STONE, Appellee.
    No. 83-877.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Rehearing Denied Jan. 16, 1984.

      Kahn & Gutter and Jeffrey D. Miehelson, Fort Lauderdale, for appellant.
    Bailey & Dawes and Jesse C. Jones, Miami, for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The question presented on appeal is whether the creditor made a sufficient showing of the elements of estoppel against the personal representative of an estate so as to excuse the creditor from the requirement of filing a timely claim against the estate.

During her life the decedent leased an apartment from Harbour House. She died on January 11, 1982, before the expiration of a substantial term of the lease. Notice of administration was commenced on February 25, 1982. After the personal representative was appointed, he brought the monthly rental payments to Harbour House current and continued to pay the rent as it accrued. Before the time for filing a claim against the estate, as required by section 733.702(l)(a), Florida Statutes (1981) had expired, the personal representative and Harbour House entered into an agreement. Harbour House agreed, for a stated consideration, to find a successor tenant. A preamble to that written agreement expressly provided:

WHEREAS, the Landlord and Tenant agree that the Tenant still has the right, duty and obligation both to abide by the Original Lease and to submit an acceptable application to the Landlord in connection with the reletting of the Apartment and (emphasis supplied)

When the statutorily prescribed period for the presentation of a proper claim had expired, the personal representative ceased paying the rent as it accrued. It was then that the creditor filed a claim against the estate, in response to which the personal representative filed a motion to strike, asserting the claim was filed untimely. When the motion to strike came to be heard, the creditor argued that the personal representative had lulled him into a false sense of security and should therefore be estopped to claim a bar under the non-claims statute. The probate judge permitted the creditor to file a response to the motion to strike. This motion attached a copy of the reletting agreement and recited the essential facts set forth above as a basis for permitting the late-filed claim against the estate. Ultimately, without an evidentiary hearing, the trial court granted the personal representative’s motion to strike, which precipitated this appeal.

It is obvious that the creditor’s attorney was somewhat confused about the niceties of how to proceed properly in protecting his client. However, with the facts presented to the trial court, that became wholly irrelevant. Section 733.702, Florida Statutes (1981) and its predecessors are not nonclaims statutes but guidelines for judicial procedure which may be relaxed in the sound discretion of the probate court for good cause shown. See In re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (1938). In Davis v. Evans, 132 So.2d 476, 482 (Fla. 1st DCA 1961), that court acknowledged that circumstances may exist which will excuse a creditor from the apparently absolute bar on the face of the statute. That is the principle which governs disposition of the present controversy.

The creditor’s response to the motion to strike its claim became the functional equivalent of a motion to excuse the untimely filing of a claim against the estate. It is true that recognition or payment of a claim by a personal representative, standing alone, will not excuse the untimely filing of a claim. Section 733.702(l)(a) expressly states that the personal representative’s recognition of a claim will not excuse a creditor from the requirement of presenting a timely and proper written claim against an estate. In the present case, however, the personal representative and the creditor entered into a reletting agreement. Moreover, in that agreement, quoted above, the personal representative recognized that the lease was a viable and continuing debt, as opposed to merely recognizing it as a preexisting obligation. Having made rental payments, having entered into a reletting agreement where the liability for the claim was recognized, the conduct of the personal representative was such that the creditor manifestly was entitled to an evidentiary hearing to determine whether the acts, representations, and conduct of the personal representative and his agent had lulled the creditor into a false sense of security concerning the need for the presentation of a claim and whether the personal representative ought therefore be estopped to deny the presentation of the claim. Davis v. Evans.

For the foregoing reasons, the order appealed from is reversed with directions to afford the creditor an evidentiary hearing upon his claimed excuse for not timely and properly presenting the claim against the decedent’s estate.


author: FERGUSON, Judge.

text:
    The STATE of Florida, Appellant, v. James Scott COCALIS and Colby Benham, Appellees.
    No. 83-1162.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.
    Rehearing Denied Jan. 20, 1984.
    Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., for appellant.
    Thomas J. McLaughlin, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and BARK-DULL and FERGUSON, JJ.
   FERGUSON, Judge.

The defendants were arrested on November 10, 1981, and charged on December 1, 1981, in Count I with kidnapping one Berk Lorenzo Jones, Jr. Unexcused defense continuances were granted on April 12, 1982, and June 14, 1982. On July 19, 1982, a new information was filed charging in two counts the kidnapping of Jones and one John Bryant. Additional defense continuances were granted on July 30, 1982, September 7, 1982, October 21, 1982, December 13,1982, and January 10,1983. On February 7, 1983, a third information was filed which was identical to the second information except for the addition of a third count charging extortion, naming Jones as the victim. The extortion charge was based on the same facts as gave rise to the charge in Count I of the information. On April 11, 1983, the defendants requested and were granted another unexcused continuance.

On May 2, 1983, the defendants filed a Motion to Dismiss the extortion charge (Count III) pursuant to Rule 3.191, Florida Rules of Criminal Procedure, on the ground that it was filed after 180 days from the date of their arrest. In granting the motion the trial court found:

... it appears to the Court .that more than 180 days has elapsed from the date of the defendants’ arrest. This Court specifically finds that all though (sic) the defense continuances effectively waived speedy trial of the original charge, Kidnapping, that waiver is not effective as to Count III, Extortion, of the Information filed February 7, 1983 which is a new and separate count arising out of the same fact situation. WHEREFORE, it is ORDERED AND ADJUDGED that the defendants’ Motion to Dismiss Count III is granted, [e.s.]

We agree with the trial court’s finding that the new offense arose out of the same criminal conduct or episode which supports the charges in Counts I and II. That finding requires us to reverse.

First, when a defendant is granted an unexcused continuance, the time limitations in the speedy trial rule are no longer applicable and the court has the right and authority to set the case for trial within a reasonable time. State ex rel. Butler v. Cullen, 253 So.2d 861, 863 (Fla.1971).

Second, the filing of a new information subsequent to a continuance granted to the defendant which charges a new offense does not vitiate the waiver of the speedy trial rule or revive the 180-day limitation, when the new offense is based upon the same conduct or criminal episode. Homer v. State, 358 So.2d 1176, 1177-78 (Fla. 3d DCA 1978), cert. denied, 364 So.2d 886 (Fla.1978).

Count I of the information charges a kidnapping and alleges:

[Defendants] between the 5th day of November, 1981, and the 11th day of November, 1981, ... without lawful authority, did then and there forcibly, secretly, or by threat, confine, abduct or imprison another person, to-wit: BERK LORENZO JONES, JR. ... for ransom or reward. ...

Count III of the information, which was dismissed by the trial court, charges extortion and alleges:

[Defendants] between the 5th day of November, 1981, and the 11th day of November, 1981,... did maliciously and fe-loniously verbally threaten an injury to the person of another, to-wit: BERK LORENZO JONES, JR., with the intent to extort MONEY....

It is clear that Count III arose from the same criminal conduct or episode as gave rise to Count I; therefore, the fact that this charge was filed more than 180 days after defendants’ arrest does not exclude it from the effect of the speedy trial waiver.

Reversed and remanded.


author: SCHEB, Judge.

text:
    W.J. OWENS and Aletha Owens, his wife, Appellants, v. Thomas Jefferson BLITCH, III, and Jeritza Garcia Blitch, his wife, and Gulf Citrus, Inc., jointly and severally, Appellees.
    No. 82-2574.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.
    Rehearing Denied Jan. 4, 1984.
    Thomas E. Baynes, Jr., of Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Lake Wales, for appellants.
    Lee S. Damsker of Maney & Damsker, Tampa, for appellees, the Blitches.
   SCHEB, Judge.

W.J. Owens and his wife, Aletha, appeal from a final judgment awarding Thomas and Jeritza Blitch damages arising from the misappropriation of funds of Gulf Citrus, Inc.

Gulf Citrus, Inc., holds title to a citrus grove in Hillsborough County. Mr. Owens and Mrs. Blitch each own fifty percent of the shares in Gulf Citrus. Mr. Blitch took responsibility for negotiating the purchase of the grove in 1971. These three and Mrs. Owens all served as directors of Gulf Citrus.

By 1974 the relationship between the Blitches and Owenses had considerably deteriorated. In 1977 the Blitches brought suit against Gulf Citrus and the Owenses in a two-count complaint. Count one sought a dissolution of Gulf Citrus and liquidation of its assets. Count two was an action for damages for misappropriation of the funds of Gulf Citrus. A receiver was appointed for Gulf Citrus. The Owenses answered and cross-claimed against Gulf Citrus for payment of promissory notes owed them by the corporation.

After a nonjury trial, count one, the request to dissolve Gulf Citrus, was denied by the trial court. As to count two the trial court determined that Mr. and Mrs. Owens were guilty of “fraud, misappropriation of funds, washing the assets of Gulf Citrus, Inc., unfairness and imposition.” The court further found that over a seven-year period, the Owenses failed to account for $221,250 worth of citrus fruit, which rightfully belonged to the Blitches and Ow-enses in equal shares. The court awarded the Blitches a judgment for $110,625 against the Owenses. The trial judge further determined that the Owenses had completely personalized the corporation and assumed its alter-ego. On that basis the court denied their cross-claim against Gulf Citrus, as it would be “tantamount to ... filing a claim against themselves.”

Although a number of issues have been raised in this complicated appeal, we find only one has merit.

Appellants contend that the trial court erred in denying their cross-claim, which sought recovery against Gulf Citrus on promissory notes for cash advances and caretaking services. They point out that Gulf Citrus, in its answer to the cross-claim, admitted the debts on several of the notes issued to the Owenses. Furthermore, appellee Thomas Blitch also admitted that the corporation owed certain funds to the Owenses. The notes offered in evidence appear to have been properly executed. Nevertheless, the trial court refused to receive the notes in evidence.

Counsel for the Blitches objected to the notes on the ground that they were “totally self-serving [and] ... executed by Mr. Owens, in favor of Mr. Owens.” The record is unclear whether the objection was sustained on the ground stated above. However, appellate counsel for both parties agree that the court refused admission of the notes because documentary stamps were belatedly affixed to the notes. If this was the basis for the court’s refusal to receive the notes, then we think the court erred. Nothing in Florida law would deny enforceability of promissory notes merely because documentary stamps have been belatedly affixed. See § 201.08, Fla.Stat. (1981).

There is serious dispute as to the legality of many of the notes. The Blitches challenge corporate authorization of some of the notes as being illegal, while they admit the corporation’s obligation on the other notes. However, the trial court apparently did not resolve this problem since it declined to receive the notes into evidence.

As noted, the court denied the Ow-enses’ cross-claim as it would be “tantamount to ... filing a claim against themselves.” However, they did not have complete ownership of Gulf Citrus — Mrs. Blitch owned half the shares of the corporation. Therefore, it appears that the Owenses may be entitled to payment for sums represented by some or all of those notes.

Accordingly, we vacate that part of the final judgment which denies the Owenses’ cross-claim against Gulf Citrus. We remand to the trial court with directions to receive the eleven promissory notes, which are set forth in the cross-claim, into evidence and hold a further evidentiary hearing to determine whether the Owenses are entitled to recover any of the sums represented by those notes. The court should then make specific findings of fact as to the Owenses’ right of recovery of the sums represented by each note sued on and enter judgment accordingly.

We reject appellants’ remaining arguments and, except as indicated, affirm the final judgment.

GRIMES, A.C.J., and CAMPBELL, j', concur.


author: CAMPBELL, Judge.

text:
    Dennis L. KOGER, Appellant, v. EAST FIRST NATIONAL BANK, a National banking corporation, Appellee.
    No. 83-336.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.
    Rehearing Denied Jan. 11, 1984.

      James C. Decker of Stewart & Decker, P.A., Fort Myers, for appellant.
    G. Keith Cary of Alderman & Gerald, P.A., Fort Myers, for appellee.
   CAMPBELL, Judge.

Appellant, Dennis L. Koger, appeals the order dismissing his second amended complaint with prejudice. He raises two points on appeal. The first point concerns whether an individual corporate stockholder has a cause of action against a bank under section 674.402, Florida Statutes (1981), which tracks the language of section 4-402, Uniform Commercial Code (1977), for damages that result from actions between the bank and its corporate customer of which the individual is a stockholder. The second point addresses the liability of a bank to stockholders of a corporate customer for wrongfully handling funds or other property of the corporation. We conclude that our disposition of the first point raised is also dispositive of the second point. Any tort by the appellee bank against the appellant stockholder would necessarily arise out of the bank-customer relationship. That relationship, in turn, is the subject of section 674.402. This appears to be a case of first impression in Florida. We affirm.

Appellant alleges that he sustained damages due to the actions of appellee, East First National Bank. Appellee’s named customer was Kenny and Koger Construction, Inc., (KKCI), in which appellant was a principal stockholder. Appellant contends that appellee refused to honor the checks of KKCI, attempted to revoke payment of checks, seized funds in a KKCI checking account to pay a note, and seized a KKCI receivable as collateral under a security agreement. Appellant contends that these actions proximately caused KKCI’s default on numerous construction projects and required a surety to complete its performance on those projects.

The surety sued KKCI and its shareholders who had personally agreed to indemnify the surety in the event it was required to pay a claim against KKCI. Appellant further alleges that the surety obtained a judgment against him in the approximate amount of $280,000 as a result of appellee’s actions.

Section 674.402 provides:
A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.

We choose to adhere to the more literal interpretation of section 674.402, which follows the interpretation given to section 4-402 in Kesner v. Liberty Bank & Trust Company, 7 Mass.App. 934, 390 N.E.2d 259 (1979); Farmers Bank v. Sinwellan Corporation, 367 A.2d 180 (Del. 1976), and Loucks v. Albuquerque National Bank, 76 N.M. 735, 418 P.2d 191 (1966). These cases hold that a bank’s liability extends only to the corporation or partnership which is its “customer,” rather than to the individual partner or member of that corporation or partnership.

In the instant case, appellant was not the proper party to bring an action against appellee. The named customer of the bank was the corporation KKCI. Thus, according to the above authorities, KKCI would have been the only party entitled to institute a cause of action against appellee under the provisions of section 674.402.

Appellant cites to Karsh v. American City Bank, 113 Cal.App.3d 419, 169 Cal.Rptr. 851 (1980), and Kendall Yacht Corporation v. United California Bank, 50 Cal.App.3d 949, 123 Cal.Rptr. 848 (1975), for the proposition that individual members of a business entity, that is the customer of a bank, are entitled to obtain relief under section 4-402.

Although the language of section 4-402 is identical to that of section 674.402,. we choose to disagree with the liberal interpretation given it by the California courts. Both the Karsh and Kendall cases refer to corporations that were “undercapitalized” or mere “transparent shells.” Appellant did not allege that KKCI was in the same position as the corporations in Karsh and Kendall. Accordingly, we affirm the decision of the trial court.

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