author: HERSEY, Judge.

text:
    FLORIDA PATIENT’S COMPENSATION FUND, Appellant, v. Joseph TILLMAN, Howmedica, Inc., et al., Appellees. ST. MARY’S HOSPITAL, Appellant, v. Joseph TILLMAN, Bruce Waxman, M.D., et al., Appellees. (Two Cases) Joseph TILLMAN, Appellant, v. ST. MARY’S HOSPITAL, etc., et al., Appellees. Bruce WAXMAN, M.D., Appellant, v. Joseph TILLMAN, Appellee. Bruce WAXMAN, M.D., Appellant, v. Joseph TILLMAN, et al., Appellees.
    Nos. 82-1197, 82-1199, 82-1370, 82-1433, 82-1527 and 82-1823.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearings Denied Sept. 10, 1984.

      Perkins & Collins, Tallahassee, for Florida Patient’s Compensation Fund.

      David F. Crow of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for St. Mary’s Hospital.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Kocha & Houston, P.A., West Palm Beach, for Joseph Tillman.
    Robert M. Klein and Debra Levy Nei-mark of Stephens, Lynn, Chernay & Klein, P.A., Miami, for Bruce Waxman, M.D.
   HERSEY, Judge.

These consolidated appeals devolve from a medical malpractice action.

Joseph Tillman developed a knee problem which required the surgical implantation of a two-element prosthesis manufactured by Howmedica, Inc. The surgery was performed by Dr. Bruce Waxman at St. Mary’s Hospital on April 12, 1978. The prosthetic device obtained by St. Mary’s Hospital from another hospital consisted of a tibia component and a fibula component. Each of these components is manufactured in two sizes. The prosthesis inserted in Tillman’s knee consisted of mismatched components. Shortly after the surgical procedure Dr. Waxman advised Tillman that mismatched elements had been implanted in the knee. Some difficulty with the knee was encountered by Tillman almost immediately, and ultimately another surgeon performed corrective surgery which, because of deterioration of bone structure, required that the knee be fused.

On February 29, 1980, plaintiff Tillman filed his initial complaint naming St. Mary’s Hospital and Howmedica, Inc., as defendants. On December 2, 1980, Dr. Waxman was added as a defendant. On July 9, 1981, Florida Patient’s Compensation Fund was added as a defendant. Subsequently, Waxman and the Fund filed motions for summary judgment based upon the statute of limitations. Both motions were denied and the case proceeded to trial. During trial Dr. Waxman made a motion for directed verdict based upon the statute of limitations. The motion was denied. St. Mary’s motion for directed verdict, based on the argument that there was no evidence on the hospital’s standard of care or its negligence, was likewise denied. Also during the trial Dr. Waxman withdrew his affirmative defense of comparative negligence.

At the conclusion of the trial the jury found Tillman 12% negligent, St. Mary’s Hospital 8% negligent, and Dr. Waxman 80% negligent. The jury found the total amount of damages to be $150,000. The trial court entered judgment on May 7, 1983, awarding Tillman $132,000 after reducing the damages by 12%, representing Tillman’s comparative negligence. The final judgment is the subject of several of the appeals prosecuted by the parties — Tillman, Dr. Waxman, St. Mary’s Hospital and Florida Patient’s Compensation Fund. Thereafter, the trial court awarded attorney’s fees to Tillman and that order, dated July 30, 1982, is also appealed by Dr. Wax-man.

APPEAL OF DR. WAXMAN

Waxman relies upon the medical malpractice statute of limitations in urging that his motions for summary judgment and directed verdict were erroneously denied. The applicable statute, Section 95.-ll(4)(b), Florida Statutes, as amended in 1975 (thus rendering cases under the former version of the statute relied upon by Waxman of doubtful value as precedent) provides:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.... In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

Discovery of the “incident giving rise to the cause of action” is the point when the statute begins to run. In Swagel v. Goldman, 393 So.2d 65 (Fla.3d DCA 1981), the court equated “incident” with the “now-alleged surgical malpractice.” The term “incident,” however, could not refer solely to the particular medical procedure since that would obviously be “discovered” at the time it was performed, rendering nugatory the additional two year period permitted by the statute for discovering the incident. Thus, the term must encompass (1) a medical procedure; (2) tortiously performed (3) which injures (damages) the patient. The question, then, is when did Tillman discover the “incident.” The testimony presented below was conflicting.

After Dr. Waxman learned about the mismatched knee components he called Howmedica. Waxman testified that an engineer for Howmedica said “that he thought it would work out fine and he thought there was a slight impingement on the tibial spines, but that this would be resolved by cold flow.” In support of Dr. Waxman’s testimony, Dr. Diaz (who assisted with the operation) testified that after Waxman spoke with Howmedica, “[h]e was assured that it should work very well and that if any problem occurred, that it would probably be what we call cold flow.... He was advised that it should do quite well.” This state of mind of Waxman, that no harm had been done, bears out Tillman’s version of subsequent events. According to Tillman, within a few days after the operation Waxman told him that he “thought [he] had implanted the wrong or mismatched sizes” but that he “thought that it would work but [he] wasn’t sure.” On each of the subsequent office visits, Waxman “told him [Tillman] he was improving .... ”

Tillman admitted that he never improved after the operation, but when he told Wax-man, Waxman allegedly “didn’t pay any attention. He acted like he wasn’t paying a bit of attention ....” Tillman testified that he learned for the first time that his leg needed another operation when x-rays were taken at Dr. Ennis’ office in January or February of 1979. Although Tillman had last seen Dr. Waxman in January of 1979, Waxman never told Tillman he would need another operation.

In addition to the very real possibility that Tillman was never in a position to recognize that an incident had occurred, there exists another factual determination which affects our consideration. If Tillman knew of the mismatched components shortly after the operation, the statute would begin to run only if the subsequent damage was caused by the mismatched components. Although the evidence would support a finding to that effect, there was evidence of other possible causes which were never brought to Tillman’s attention.

Dr. Petty performed the corrective operation on Tillman. When Petty opened the knee, he found the prosthesis was “quite unstable.” Petty then tried to replace the prothesis with a larger one but was “unable to get good bone fixation and good stability.” He decided to fuse the knee.

When asked for his opinion regarding the instability of the right knee replacement, Petty responded as follows:

I think there are two or three possibilities. Possibility Number 1 would be for the, at the time of the total knee arthro-plasty either excessive bone was removed, or too small a prosthesis was put in place, or a combination of those two, and those two are very closely related, and it is difficult to say either/or.
Another possibility is that the patient had such sever [sic] instability prior to this total knee arthroplasty that with whatever components or with the biggest component available, stability could still not be achieved. I don’t believe the latter was the cause in this instance though.

Regarding the first reason, by “too small a prosthesis,” Petty meant the tibial and femoral parts were too small in their thickness and size. Petty believed that Tillman needed a thicker tibial component but he also stated that “[t]he femoral component was smaller than what was ideal for the patient.” When asked what led to his belief that the femoral component was smaller than ideal, Petty responded, “[t]he femoral component [was] considerably narrower than the distal femoral bone that it resurfaces.” Although the doctor thought the components were too small for Tillman, he did not have an opinion as to whether the two components were, in fact, mismatched.

In addition to Dr. Petty’s deposition testimony, the jury saw a video deposition of Dr. Volz. When asked whether he felt Dr. Waxman removed too much bone, Volz stated:

Yes, I believe he did. I believed — not necessarily did he remove too much bone, but he did not insert a wide enough plastic component part to properly place the ligaments under appropriate tension .... That either too much bone was removed, and if so, not enough — not a thick enough plastic component was inserted.

The doctor further stated that his “criticism [was] not that too much bone was removed, it was that if he had taken that much bone, he should have then used a wider component part.”

Dr. Volz was then asked whether the stability of the knee would have been better if the components had been matched. He responded as follows:

My opinion is that if the standard femoral component had been used with the standard tibial component, there would have been some added measure of stability other than what is observed when one mates a small femoral component with the standard tibial. I will concede that there is some degree of stability with that degree of mismatch but there is not as much stability, that is lessened chance for dislocation, with this combination as we can observe using a standard femoral and a standard tibial.

On this same point, he further stated, “I think the issue of the mismatching might not have been a problem at all if he’d used a wider piece of plastic. I think that’s the critical deficiency.”

Regarding the issue of too much bone being removed, Waxman’s counsel conceded that Tillman did not know about that.

Where there is a question as to notice or discovery in a medical malpractice action, it is for the jury to decide when the statute of limitations begins to run. Weiner v. Savage, 407 So.2d 288 (Fla. 4th DCA 1981); Phillips v. Mease Hospital & Clinic, 445 So.2d 1058 (Fla. 2d DCA 1984). Here, the jury concluded that the period had not expired at the time Waxman was brought into the litigation. There was evidence upon which the jury could have concluded either that Tillman did not discover that the mismatched components were causing an injury until early 1979 or that the injury was caused by the removal of too much bone or the use of a prosthesis that was too small. This was sufficient to take the question to the jury and to sustain its ultimate position that the cause of action was not barred by the statute of limitations.

Waxman’s point IV is rendered moot by the foregoing determination and his point II is without merit.

Point III suggests that the trial court committed error in awarding attorney’s fees to Tillman on the basis that the original complaint was filed prior to the effective date of the medical malpractice attorney’s fee statute, Section 768.56, Florida Statutes, although Waxman was joined as a defendant subsequent to its effective date. We agree this was error. Theodorou v. Burling, 438 So.2d 400 (Fla. 4th DCA 1983).

APPEAL OF ST. MARY’S HOSPITAL

The only issue raised by St. Mary’s is the failure of the trial court to direct a verdict in its favor because the plaintiff, having the burden, failed to establish what standard of care should be applied as to it and failed to offer expert testimony as to its negligence. (We use the term plaintiff throughout this discussion for clarity.)

St. Mary’s argues that the evidence did not establish any standard of care, relying on Memorial Hospital v. Doring, 106 So.2d 565 (Fla. 2d DCA 1958). In that case, the doctor ordered complete bed rest for a patient. The patient was placed in a bed without rails (rails were not ordered by the doctor), and either fell out of the bed or fell after he got up from the bed. The patient admitted that he did not need special nursing care. In addition, the court specifically found that the record failed to disclose what the hospital should have done but failed to do. Therefore, the appellate court held a verdict should have been directed in favor of the hospital.

In the case at bar, the plaintiff clearly alleges that the hospital failed to check the femoral component to make sure it provided the right size to the doctor. The manager of surgery at St. Mary’s, Harry Wallace, admitted that he had the responsibility to ensure that the proper components were received by the hospital and further admitted that he failed to check the components used in this operation; further, that it was standard procedure to check the stock numbers to ensure that the proper components had been received. The head nurse also failed to check the size of the femoral component before surgery.

These witnesses stated that they failed to check the components because they did not know that Howmedica, Inc., manufactured different sizes. However, the evidence showed that Howmedica, Inc., had been manufacturing different sizes for at least a year before this surgery; that the salesman for Howmedica stated that he had discussed the knee and the various sizes with Wallace prior to the surgery; and that other hospitals knew there were different size components. Thus the evidence itself established that the hospital deviated from its regular standard of care by not checking the components and that it should have known there were different sizes.

The hospital’s failure to check the components used in the operation would appear to constitute an obvious breach of duty which would be apparent to persons of common knowledge. Thus we hold, contrary to St. Mary’s position, that expert testimony was not required. In Atkins v. Humes, 110 So.2d 663 (Fla.1959), the court stated that “a jury would have the right to conclude that it is negligence ... to fail to sterilize surgical instruments before performing an operation .... ” Id. at 666 (citing Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944)). See also Stepian v. Bay Memorial Medical Center, 397 So.2d 333 (Fla. 1st DCA), pet. for review dismissed, 402 So.2d 607 (Fla.1981).

Finally, St. Mary’s asserts that even if the hospital failed to notice the femoral component, its failure did not cause any injury to the plaintiff. According to St. Mary’s, the plaintiff’s expert testimony established that his problem could have been attributed to either too much bone being removed, or the use of too small a prosthesis (including the tibial and femoral components). Although Dr. Petty testified that he did not notice if the components were mismatched, he did state that “the femoral component was smaller than what was ideal for this patient.”

Because the fact that the hospital failed to check the components before surgery constituted an obvious breach of duty, and because a smaller femoral component than what was ideal for the patient may have contributed to the ultimate failure of the operation, the trial court did not err in denying St. Mary’s motion for a directed verdict.

APPEAL OF DEFENDANT FLORIDA PATIENT’S COMPENSATION FUND

Defendant, Florida Patient’s Compensation Fund (Fund), contends that the trial court erred in denying its motion for summary judgment. It is undisputed that Tillman admits he discovered his injury no later than February of 1979. However, he failed to add the Fund as a defendant until July 9, 1981. The Fund asserts that because the two year statute of limitations, Section 95.11(4)(b), Florida Statutes, applies to “the health care provider and persons in privity with the provider of health care,” Tillman’s failure to add it as a defendant within two years entitled it to summary judgment.

Tillman contends that he was in privity only with the hospital and Dr. Waxman and therefore the two year statute of limitations was not applicable as to the Fund. Further, Tillman argues that the “insurer’s exception” to the statute of limitations should be applied and cites Davis v. Williams, 239 So.2d 593 (Fla. 1st DCA 1970), and Clemons v. Flagler Hospital, Inc., 385 So.2d 1134 (Fla. 5th DCA 1980), for this position.

We disagree that the statute of limitations defense is available to Florida Patient’s Compensation Fund in the present case. We, instead, are persuaded by the logic and therefore adopt the rationale of Judge Ferguson’s dissent in Fabal v. Florida Keys Memorial Hospital, 452 So.2d 946 (Fla. 3d DCA 1984). In so doing we acknowledge that we create a direct and express conflict with the following cases: Taddiken v. Florida Patient’s Compensation Fund, 449 So.2d 956 (Fla. 3d DCA 1984); Burr v. Florida Patient’s Compensation Fund, 447 So.2d 349 (Fla. 2d DCA 1984); Owens v. Florida Patient’s Compensation Fund, 428 So.2d 708 (Fla. 1st DCA), pet. for review denied, 436 So.2d 100 (Fla.1983); Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied & appeal dismissed, 383 So.2d 1198 (Fla.1980); and Fabal v. Florida Keys Memorial Hospital, supra.

St. Mary’s argues that if the judgment is reversed as to the Fund, then the judgment against St. Mary’s should be limited to $100,000, the maximum liability of the health care provider under Section 768.-54, Florida Statutes. However, we held in Florida Medical Center, Inc. v. Von Stetina, 436 So.2d 1022, 1028 (Fla. 4th DCA 1983), that Section 768.54(2)(b), Florida Statutes (1977), “imposes no substantive limitation upon plaintiff’s right to judgment in the full amount” and found that section unconstitutional. Therefore, the plaintiff is entitled to recover against St. Mary’s without limitation.

APPEAL OF PLAINTIFF, JOSEPH TILLMAN

Tillman argues that since Waxman withdrew his affirmative defense of comparative negligence and the jury was so advised by Waxman’s counsel, Waxman was not entitled to the 12% reduction of the judgment (the percentage of negligence attributed to Tillman). Additionally, Tillman argues that a defendant may not benefit from an affirmative defense he fails to present and cites Searcy v. Godwin, 129 Ga.App. 827, 201 S.E.2d 670 (1973), and Haddock v. Smithson, 30 N.C.App. 228, 226 S.E.2d 411, review denied, 290 N.C. 776, 229 S.E.2d 32 (1976). We agree.

In Searcy the defendant never raised the statute of limitations and the court said that the defendant could not “avail himself of an affirmative defense which he failed to properly present.” Id. 201 S.E.2d at 671-72. In Haddock, one of the defendants pled contributory negligence while the other defendant did not. The court found that because the defendants filed separate answers, the defendant who failed to raise contributory negligence in his answer could not take advantage of the other defendant’s claim for contributory negligence to support a summary judgment in favor of both defendants. In both Searcy and Haddock, the defendants failed to plead an affirmative defense; thus the court did not permit either of them to take advantage of the defense in the proceeding.

In the case at bar, Waxman initially pled the affirmative defense but then withdrew it during trial. The defense of comparative negligence was maintained by St. Mary’s Hospital and therefore presented to the jury. Waxman argues that “any defense filed by one defendant, common to a code-fendant, inures to the benefit of that code-fendant.” Allied Chemical Corp. v. Van Buren School Dist. No. 42, 264 Ark. 810, 575 S.W.2d 445, 448 (1979). Waxman additionally argues that the comparative negligence defense was common to both himself and St. Mary’s and that the jury ultimately found the plaintiff 12% negligent. Since Section 768.31(3)(a), Florida Statutes, Uniform Contribution Among Tortfeasors Act (1982), provides that joint tortfeasors are responsible for their pro rata share of the entire liability, if Waxman is liable for the full $150,000, he argues that he will pay more than his pro rata share.

However, having withdrawn his defense of comparative negligence and so informing the jury, Waxman will not be permitted to take advantage of the defense simply because it is now to his benefit to do so. The final judgment should reflect a reduction for St. Mary’s Hospital based on the plaintiff’s negligence but Waxman should not be afforded the same reduction.

Upon remand the lower tribunal is instructed to make such corrections in its judgment and orders as are necessary to reflect that:

1. Tillman is not entitled to attorney’s fees under Section 768.56, Florida Statutes;
2. The amount of damages recoverable from Waxman is not to be reduced for comparative negligence.

In all other respects we affirm.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

LETTS and BERANEK, JJ., concur.


source: Caselaw Access Project

author: SHIVERS, Judge.

license: Public Domain

text:
    WALDORFF INSURANCE AND BONDING, INC., Appellant, v. EGLIN NATIONAL BANK, Appellee.
    No. AU-142.
    District Court of Appeal of Florida, First District.
    July 27, 1984.
    Rehearing Denied Sept. 6, 1984.

      Dale E. Rice, Crestview, for appellant.
    David L. Selby, Fort Walton Beach, for appellee.
   SHIVERS, Judge.

Waldorff Insurance and Bonding, Inc. (Waldorff) appeals the supplemental final judgment of foreclosure entered against it in favor of Eglin National Bank (Bank) on a condominium unit. Appellant argues that the trial court erred in not finding its interest in the condominium unit superior to the liens of two mortgages held by the Bank. We agree and reverse.

Choctaw Partnership (Choctaw) developed certain properties in Okaloosa County by constructing condominiums. On June 8,

1972, Choctaw executed a promissory note and mortgage on these properties in the amount of $850,000. This indebtedness was later increased to $1,100,000. This note and mortgage was eventually assigned to appellee Bank on January 17, 1975. At that time, the principal balance remaining on this note and mortgage was $41,562.61.

Waldorff entered into a written purchase agreement with Choctaw for condominium unit 111 on April 4, 1973. Choctaw was paid $1,000 at that time as a deposit on Unit 111. The total purchase price of Unit 111 was to be $23,550. In April or May 1973, Waldorff began occupancy of the unit. Furniture worth $5,000 was purchased by Waldorff and placed in the unit. Waldorff continually occupied the unit for about 1½ years thereafter, paying the monthly maintenance fee, the fee for maid service, the fee for garbage pick-up, and paying for repairs to the unit. At the time of the hearing in this case on February 21, 1983, the furniture was still in the unit, the utility bills and monthly maintenance fees were still paid by Waldorff, and Waldorff had the keys to the unit and controlled it.

On October 10,1973, Choctaw executed a note and mortgage for the principal sum of $600,000 in favor of the Bank. Among the properties included in this mortgage was the condominium unit involved in the instant case, Unit 111.

On June 28, 1974, Choctaw executed yet another note and mortgage, this one in favor of the Bank for the principal sum of $95,000. This mortgage secured a number of units, one of which was Unit 111.

Choctaw was apparently a client of Wal-dorff, and in 1974, Choctaw owed Waldorff over $35,000 for insurance premiums. Choctaw agreed to consider the purchase price of Unit 111 paid in full in return for cancellation of the debt owed by Choctaw to Waldorff. Waldorff “wrote off” the debt, and Choctaw executed a quitclaim deed to Unit 111 in favor of Waldorff. The deed was recorded in March 1975.

In 1976, the Bank brought a foreclosure action against Choctaw, Waldorff and others. A final judgment of foreclosure was entered in September 1976, but that judgment did not foreclose Waldorff s interest in Unit 111. Instead, the 1976 final judgment explicitly retained jurisdiction to determine the ownership of Unit 111. A hearing was held on February 21, 1983. The issue at this hearing was whether Wal-dorff s occupancy, together with the purchase agreement, was sufficient notice so as to make Waldorff’s interest in Unit 111 superior to that of the Bank. At this hearing, evidence was taken concerning the agreements between Choctaw and Wal-dorff and Waldorff’s occupancy of Unit 111. There was evidence that condominium units other than 111 were also occupied and that many of these units were occupied by persons who had no legal interest in the units, e.g., persons invited by Choctaw to occupy the units for a time as part of Choctaw’s marketing campaign.

The trial court entered a supplemental final judgment of foreclosure which found that Waldorff s occupancy of Unit 111 was “equivocal” because Choctaw allowed at least 8 other condominium units to be furnished and used for occupancy by various persons. The trial court also found that Waldorff did not pay the consideration promised for Unit 111 because the debt owed by Choctaw to Waldorff was used as a bad debt write-off for federal income tax purposes rather than being credited to Choctaw. The trial court found that “even if defendant could establish some right to Unit 111 by occupancy, defendant failed to pay the agreed consideration for the quitclaim deed and, therefore, the conveyance is void.” Based on these findings, the trial court held the Bank’s mortgage liens superior to Waldorff’s interest.

A contract to convey legal title to real property on payment of the purchase price creates an equitable interest in the purchaser. Lafferty v. Detwiler, 155 Fla. 95, 20 So.2d 338, 343 (1944); Felt v. Morse, 80 Fla. 154, 85 So. 656 (1920). Beneficial ownership passes to the purchaser while the seller retains mere naked legal title. Arko Enterprises, Inc. v. Wood, 185 So.2d 734 (Fla.1st DCA 1966); Tingle v. Hornsby, 111 So.2d 274 (Fla.1st DCA 1959). Subsequent successors to the legal title take such title burdened with the equitable interests of which they have either actual or constructive notice. Hoyt v. Evans, 91 Fla. 1053, 109 So. 311 (1926). In the instant case, it appears clear that the April 4,1973, Agreement to Purchase entered into between Choctaw and Waldorff vested equitable title in Waldorff. Therefore, the interests acquired by the Bank pursuant to the October 1973 and June 1974 mortgages would be subordinate to Waldorff’s equitable interest if the Bank had either actual or constructive notice of that interest. Scott v. Simmons, 151 Fla. 628, 10 So.2d 122 (1942); Marion Mortgage Co. v. Grennan, 106 Fla. 913, 143 So. 761 (1932); Lee County Bank v. Metropolitan Life Insurance Co., 126 So.2d 589 (Fla.2d DCA 1961).

In Blackburn v. Venice Inlet Co., 38 So.2d 43 (Fla.1948), the court stated:

It is settled law in Florida that actual possession is constructive notice to all the world, or anyone having knowledge of said possession of whatever right the occupants have in the land. Such possession, when open, visible and exclusive, will put upon inquiry those acquiring any title to or a lien upon the land so occupied to ascertain the nature of the rights the occupants really have in the premises.

Id. at 46. See generally 38 Fla.Jur.2d Notice and Notices § 7 (1982) and cases cited therein. In the instant case, Waldorff was in open, visible and exclusive possession of Unit 111 at the time of the making of the October 1973 and June 1974 mortgages.

The trial court found, however, that Wal-dorff’s possession of Unit 111 was “equivocal” because other units in the condominium project were occupied by persons who had no interest in the units. We do not agree with this analysis. Although many of the condominium units were held by a common grantor, Choctaw, the units were separate parcels intended to be alienated individually. The mortgage executed on June 28, 1974, which secures both the $95,-000 note and the $600,000 note of October 10,1973, described the property mortgaged in terms of individual units, specifically including Unit 111. The status of other units within the condominium project, therefore, is irrelevant to the question of the possession of Unit 111. The issue in the instant case concerned only the rights of the parties involved in Unit 111, not the condominium project as a whole or any other individual units.

Appellee argues, however, that it would have been difficult to ascertain whether any person physically occupying any of the units in the project had a claim of ownership interest in the unit being occupied. Although we agree that it would be more inconvenient for a prospective lender to make several inquiries rather than a single one, we do not find this argument persuasive. We find the ancient, but oft-cited, case of Phelan v. Brady, 119 N.Y. 587, 23 N.E. 1109 (N.Y.1890), to be instructive in this matter. On May 1, 1886, Mrs. Brady took possession of a tenement building containing 48 apartments occupied by 20 different occupants as tenants from month to month. Her possession was pursuant to a contract for sale secured for her by her attorney. Three of the apartments were occupied by Mrs. Brady and her husband, who kept a liquor store in part of the building. Mrs. Brady began collecting rents immediately upon taking possession of the premises. Mrs. Brady’s deed, however, was not recorded until August 26, 1886, subsequent to the recordation of Phe-lan’s mortgage which had been executed by the record owner of the property on July 23, 1886. The court stated:

At the time of the execution and delivery of the mortgage to the plaintiff, the defendant Mrs. Brady was in the actual possession of the premises under a perfectly valid, but unrecorded, deed. Her title must therefore prevail as against the plaintiff. It matters not, so far as Mrs. Brady is concerned, that the plaintiff in good faith advanced his money upon an apparently perfect record title of the defendant John E. Murphy. Nor is it of any consequence, so far as this question is concerned, whether the plaintiff was in fact ignorant of any right or claim of Mrs. Brady to the premises. It is enough that she was in possession under her deed and the contract of purchase, as that fact operated in law as notice to the plaintiff of all her rights. It may be true, as has been argued by plaintiff’s counsel, that, when a party takes a conveyance of property situated as this was, occupied by numerous tenants, it would be inconvenient and difficult for him to ascertain the rights or interests that are claimed by all or any of them. But this circumstance cannot change the rule. Actual possession of real estate is sufficient to a person proposing to take a mortgage on the property, and to all the world, of the existence of any right which the person in possession is able to establish. Gouverneur v. Lynch, 2 Paige, 300; Bank v. Flagg, 3 Barb. Ch. 318; Moyer v. Hinman [17 Barb 137] 13 N.Y. [180] 184; Tuttle v. Jackson, 6 Wend. 213; Trustees, v. Wheeler, 61 N.Y. 88, 98; Cavalli v. Allen, 57 N.Y. [508] 517.

23 N.E. at 1110-1111. Moreover, cases citing Phelan v. Brady have stated that the possession involved there was not equivocal. Swanstrom v. Day, 46 Misc. 311, 93 N.Y.S. 192 (N.Y.Sup.Ct.1905); Baker v. Thomas, 61 Hun. 17, 15 N.Y.S. 359 (N.Y.Sup.Ct.1891).

We also agree with appellant that the trial court erred in finding that the conveyance of the property from Choctaw to Waldorff was void due to lack of consideration for the quitclaim deed. Although Waldorff may have erred in attempting to take a “bad debt” tax deduction after can-celling the debt Choctaw owed to Waldorff for insurance premiums, Choctaw was relieved from payment of that debt, and this constituted a valuable consideration flowing to Choctaw. Booth v. Bond, 56 Cal. App.2d 153, 132 P.2d 520 (Cal.Dist.Ct.App.1942); see generally Dorman v. Publix-Saenger-Sparks Theatres, 135 Fla. 284, 184 So. 886 (1939); 17 C.J.S. Contracts §§ 74, 87 (1963).

The parties agree that the 1972 mortgage lien is superior to Waldorff s interest in Unit 111. Appellee, however, stated at oral argument that it did not disagree with the proposition that a proper application of the funds from the 1976 foreclosure sale of the rest of the condominium project should first satisfy the 1972 mortgage. Our decision renders moot appellant’s other points on appeal. Accordingly, the supplemental final judgment of foreclosure is reversed and the cause remanded for entry of a judgment consistent with this opinion.

REVERSED and REMANDED.

JOANOS, J., concurs.

BOOTH, J., dissents.

      . In Marion Mortgage Co. v. Grennan, 106 Fla. 913, 143 So. 761, 766 (1932), the court stated:
      [W]hile a contract for the sale of land remains executory, and no deed has passed, whatever rights remain in the vendor may be subject of a mortgage by him, though the terms of the mortgage given by the vendor cannot restrict the rights of the purchaser under the executory contract of sale.

      . The principal due on the 1972 note and mortgage is $41,562.61. The purchase price bid for the remaining mortgaged property at the foreclosure sale in 1976 was $750,000.


author: ZEHMER, Judge.

text:
    Harold Lee HENRY, Appellant, v. STATE of Florida, Appellee.
    No. AY-187.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1984.
    Rehearing Denied Sept. 7, 1984.
    Harold Lee Henry, pro se.
    Jim Smith, Atty. Gen., Tallahassee, for appellee.
   ZEHMER, Judge.

Harold Lee Henry appeals the trial court’s order denying his motion filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. After Henry’s appeal from final judgment was affirmed on appeal, he filed the motion for postconviction relief on four grounds. The trial court correctly denied the motion on the first three grounds. Only the ground based on ineffective assistance of counsel at trial requires further consideration in the trial court.

The trial court order denied the appellant’s motion because each ground was “clearly encompassed in the record and available to defendant on his appeal.” In so ruling, the trial court apparently overlooked the well-established proposition that ineffective assistance of counsel in the trial court is ordinarily not reviewable on direct appeal but is more properly asserted in a rule 3.850 motion. Perri v. State, 441 So.2d 606, 607 (Fla.1983); State v. Barber, 301 So.2d 7, 9 (Fla.1974).

We reverse and remand for the trial court to either attach those portions of the record which conclusively show that Henry is not entitled to relief on this ground or hold an evidentiary hearing on the motion, if necessary.

AFFIRMED IN PART and REVERSED IN PART.

SMITH and JOANOS, JJ., concur.


author: JOANOS, Judge.

text:
    Lawrence YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. AX-424.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1984.

      Lawrence Young, pro se.
    Jim Smith, Atty. Gen., Tallahassee, for appellant.
   JOANOS, Judge.

■ This is an appeal from a denial of motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As grounds for relief appellant alleged that his plea negotiation provided that the sentence he received for his guilty plea to a charge of burglary was to be the same sentence and concurrent with the sentence that he- received for parole violation. We reverse with directions.

The record in this case indicates that following discussions in chambers between appellant’s counsel and the court, appellant authorized his counsel to withdraw his previously entered plea of not guilty and to enter instead a plea of guilty to the charge of burglary. The record further reflects that appellant entered a plea of guilty with the understanding that the sentence he received for the burglary would run concurrently with the sentence he received for parole violation. The following exchange took place between appellant’s counsel and the court at the July 15, 1981, proceeding:

MR. BAKER [Appellant’s Counsel]: Your honor, pursuant to my discussions in chambers with the Court, at this time Mr. Young has authorized me to withdraw his previously entered plea of not guilty to the charge of burglary.
It’s our understanding if this plea is accepted by the Court that a PSI will be ordered and that any time he receives it will run concurrent with any time he gets on his parole violation.
THE COURT: That was my statement in chambers.

The court then entered into the plea colloquy with appellant as provided in Florida Rule of Criminal Procedure 3.172. After ascertaining that appellant understood the nature of the charge, the possible sentence, i.e., fifteen years, and the waiver of rights attendant upon a guilty plea, the court asked:

Other than the negotiations which have just been made part of the record, has anyone offered you hope of reward, better treatment, or a certain type of sentence to get you to plead guilty?

Appellant responded in the negative, and the court went on .to say:

I can inform you that I do intend to make whatever sentence I do impose concurrent with your probation violation sentence. I understand that you are facing charges for violating — excuse me, parole. What were you on parole for?
THE DEFENDANT: Burglary.
THE COURT: ' I’ll make the sentence concurrent to whatever they happen to give you on the parole violation.

A presentence investigation was ordered, and sentencing was set for August 19, 1982.

At the sentencing hearing on August 19, 1982, the assistant state attorney asked that appellant be sentenced to “the approximately two years he has gotten on parole violation.” On request of the court to “start again,” the assistant state attorney said:

Your honor, I would ask the Court to give him two years and run it concurrently with the violation of parole.

The court then referred to the pre-sentence investigation, and asked for exceptions or objections to the report. When appellant’s counsel made a reference to some statements in the report that indicated that appellant had been “less than cooperative,” the Court responded:

For the record, I have discussed this with counsel in chambers; and as far as I am concerned, it sounds like Mr. Young was probably cooperative with Mr. Lowe, and the way it turned out — that won’t go against him.

The court noted that this would be appellant’s third burglary conviction. After being advised that appellant had nothing to offer in mitigation and that counsel for the state had nothing to offer in aggravation, the court prefaced sentencing with a recognition of appellant’s efforts to be cooperative. The court then advised appellant that due to his record of a repetition of the crime of burglary, the court felt that a serious sentence was warranted. The sentence imposed was eight years, to run concurrently with the sentence appellant had received for parole violation.

It is appellant’s contention that the sentence he negotiated in return for a guilty plea was a sentence that would run concurrent with and carry the same time as the sentence he received for the parole violation. A careful reading of the transcript of the plea acceptance and sentencing proceedings demonstrates a possible basis for appellant’s belief. There are several references in this transcript to discussions held in chambers. The statements made on the record by defense counsel and the assistant state attorney reflect that both counsel recommended to the court that appellant receive the same sentence on the burglary charge as he received on the parole violation charge, the sentences to run concurrently. The trial court informed appellant that it was the court’s intention to provide that the sentence imposed on the burglary charge would run concurrently with the sentence appellant received for parole violation. The record does not contain a statement from the trial court regarding the actual length of sentence the court proposed to impose on the burglary charge.

In Robinson v. State, 373 So.2d 898, 902 (Fla.1979), the Florida Supreme Court accepts “the failure of the government to abide by the plea agreement” as one of a limited class of appealable issues which occur contemporaneously with the entry of a guilty plea. From this record we can infer the “misunderstanding and mutual mistake” found by the court in Brown v. State, 245 So.2d 41, 43 (Fla.1971), which would lead appellant to believe that the state had failed to abide by the plea agreement. Brown concerns entry of a plea of guilty to a charge of illegal possession of marijuana. Brown had withdrawn a plea of not guilty based on his counsel’s representations to him after counsel had met with the prosecutor and the judge in chambers, outside the presence of Brown, the defendant. These representations were to the effect that in cases involving possession of marijuana by a youthful offender with a prior clean record, the judge usually placed the offender on probation and withheld permanent adjudication. The misunderstanding in Brown came about because the judge stated that he followed these practices only in cases involving a small amount of marijuana intended for use only by the possessor — but the practice was not followed in cases where the quantity was sufficient to supply others. Brown’s attorneys assumed that the one-half ounce which was allegedly found in Brown’s possession was encompassed within the term “small amount” as used by the judge. This convinced the attorneys that Brown would be placed on probation if he entered a guilty plea, and they so advised him. The presentence investigation revealed that Brown had taken more marijuana to a party than he would require for his own use, and did in fact sell at least one marijuana cigarette. On these facts, the judge sentenced Brown to three years in prison.

The court in Brown relied on a First District Court of Appeal Opinion, Banks v. State, 136 So.2d 25, 26 (Fla. 1st DCA 1962), to determine that Brown should be allowed to substitute a plea of not guilty for his plea of guilty. In Banks the District Court of Appeal reversed and remanded denial of defendant’s motion to withdraw his plea of guilty, finding:

From a careful examination of the testimony offered by the Assistant State Attorney and counsel for appellant, it is clearly apparent that appellant was persuaded to and did in fact withdraw his plea of not guilty to the charge against him, and entered his plea of guilty to aggravated assault entirely as a result of an honest mistake, misunderstanding or misapprehension which occurred between his counsel and the Assistant State Attorney. From the evidence it appears without any serious question that appellant would not have changed his plea of not guilty to that of guilty except for the understanding of his attorney, erroneously as it may have been, that under the circumstances in the case defendant would be placed on probation and not sentenced to serve a term of imprisonment. The record does not reveal the slightest indication of trickery, fraud or overreaching on the part of either of the attorneys in the case. It is equally clear that the trial judge made no previous commitment as to what disposition he would ultimately make of the case prior to the time sentence was imposed, (e.s.)

The record in the case sub judice is equally devoid of any indication of trickery, fraud, or overreaching. And here as in Banks, the trial judge made no commitment prior to sentencing as to the length of sentence he would impose on the burglary charge. His only commitment was to make the two sentences concurrent, and this commitment was kept. Further, even if length of sentence had been discussed, the judge would not have been bound to the negotiations. “Until sentence is pronounced, the trial court maintains power to impose any sentence authorized by law; and, though the sentencing judge may be conscience-bound to perform his own prior agreements with counsel and the parties, the court is not in law bound to impose a sentence that once seemed, but no longer seems, just and appropriate.” State ex rel. Wilhoit v. Wells, 356 So.2d 817, 824 (Fla. 1st DCA 1978).

In the case sub judice the sentence imposed, eight years, was clearly authorized by law. Appellant had been advised by the court that the maximum sentence the court could impose was fifteen years. At the sentencing hearing, the court was clearly persuaded that the presentence investigation, which showed that appellant had a record of three prior burglary convictions, indicated a serious sentence ought to be imposed.

This record demonstrates a commendable effort on the part of the trial court to insure that appellant fully understood all the ramifications of a guilty plea. In addition, the record reflects no commitment by the court that the sentence imposed for burglary would be the same length as the sentence appellant received for parole violation. Nevertheless, the record does reflect that conferences were held in chambers out of the presence of appellant, and that both the assistant state attorney and defense counsel recommended that appellant receive the same sentence for the burglary as he received for parole violation. This case demonstrates the potential for misunderstanding that can occur when any part of a plea agreement and plea acceptance is held off the record. The rule requires the judge to determine that a defendant fully understands “the complete terms of any plea agreement,” and that “the proceedings at which a defendant pleads guilty or nolo contendere shall be of record.” The rule which requires that any plea agreement be spread upon the record has not been fully complied with here. We reverse and remand with directions to the trial court to hold an eviden-tiary hearing on appellant’s understanding of “concurrent,” with particular inquiry into whether appellant entered a guilty plea based on his understanding that his burglary sentence would be the same as his parole violation sentence.

REVERSED and REMANDED, with directions.

SMITH and ZEHMER, JJ., concur.

      . Brown v. State, 245 So.2d 41, 44 (Fla.1971).

      . Fla.R.Crim.P. 3.172(c)(vii).

      .Fla.R.Crim.P. 3.172(e).


author: BASKIN, Judge. JORGENSON, Judge,

text:
    Frank GUERRA, Appellant, v. John DOE and Jane Doe and the Florida Department of Health and Rehabilitative Services, Appellees.
    No. 83-1153.
    District Court of Appeal of Florida, Third District.
    July 3, 1984.
    Rehearing Denied Aug. 22, 1984.
    Craig S. Dyer, Fort Lauderdale, for appellant.
    Horton, Perse & Ginsberg and Edward Perse, Brumer, Cohen, Logan & Kandell, Miami, Laurie A. Ramsay, Coral Gables, for appellees.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

Appellant, Frank Guerra, appeals an order denying his motion for relief from a final judgment of adoption of his illegitimate child. Guerra urges that the trial court erred in permitting the adoption of the child without affording him a hearing on the issue of his consent to the adoption. Finding merit in appellant’s contention, we reverse.

In December, 1982, the mother gave birth to Frank Guerra’s child and placed the child for adoption in Miami without Guerra’s knowledge or consent. The natural mother executed the requisite consent-for-adoption forms and declared the natural father unknown. The child was placed with the adoptive parents who filed a petition for adoption in January, 1983. Frank Guerra did not learn of the birth of his child until some time after the child was placed for adoption. In February, 1983, a month after the initiation of the adoption proceeding, Guerra filed an affidavit of paternity with the Department of Health and Rehabilitative Services (HRS). At the final adoption hearing conducted in March, 1983, the trial court granted the adoptive parents’ motion to strike the affidavit of paternity as untimely filed and entered a final judgment of adoption.

As a condition precedent to the adoption of a child, section 63.062(l)(b)4, Florida Statutes (1983), requires the consent of the father of a minor child, if:

He has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor and has filed such acknowledgment with the vital statistics office of the Department of Health and Rehabilitative Services.

The record in the present case reveals that appellant properly filed the required acknowledgment of paternity subsequent to the filing of the petition for adoption but prior to the final adoption hearing. In Wy lie v. Botos, 416 So.2d 1253 (Fla. 4th DCA 1982), the court, though denying the natural father’s claim under the particular facts of that case, left open the question as to the effect of the natural father’s filing of an acknowledgment of paternity subsequent to the commencement of adoption proceedings. The court stated:

Clearly, if properly and timely filed, an acknowledgment makes the natural father’s consent or excuse therefor a prerequisite to securing a final decree of adoption. We simply cannot determine with certainty whether the legislature intended to cut off the rights of a natural father, who, although on notice of his paternity of a child and the pendency of adoption activities, files no acknowledgment of paternity before the legal adoption proceedings are commenced.

Id. at 1256.

We do not think the legislature intended to curtail the rights of a natural father who did not consent to the adoption of his natural child and who properly filed an acknowledgment of paternity, albeit one month after the institution of the adoption proceedings. Our interpretation of the legislative intent to afford a putative father an opportunity to be heard in a case such as this is supported by the Florida Supreme Court’s construction of the adoption statute in Wiggins v. Rolls, 100 So.2d 414 (Fla.1958). The court in Wiggins stated:

Our adoption statute contemplates that in the absence of consent a natural parent should be afforded a full and complete opportunity to object to an adoption in an adversary proceeding in which the rights of the parent should be accorded due recognition.

Id. at 416.

The putative father in the instant case filed the required acknowledgment of paternity shortly after learning of the birth and petition for adoption of his natural child and within a reasonable time before the final adoption hearing. Consequently, Guerra falls within the category of fathers whose consent is required for the adoption of a minor child under the express terms of section 63.062. He was therefore entitled to a full and complete opportunity to exercise his parental rights in an adversary hearing. Wiggins. By refusing to consider appellant’s acknowledgment of paternity at the final hearing, the trial court denied appellant an opportunity to be heard in violation of both his statutory and procedural due process rights. Cf. In re Adoption of Mullenix, 359 So.2d 65 (Fla. 1st DCA 1978) (procedural due process rights of putative father are violated where his consent is statutorily required and he is not given notice of adoption proceedings or opportunity to be heard). We conclude that the trial court erred in denying the motion for relief from the final judgment of adoption without conducting a hearing on the issue of the natural father’s consent.

Reversed and remanded for proceedings consistent with this opinion.

JORGENSON, Judge,

specially concurring.

Guerra’s right to due process, the sole issue of this appeal, has now been established. On remand the focus of this adoption proceeding will shift to the primary issue, the best interest and welfare of the child. See Ramey v. Thomas, 382 So.2d 78 (Fla. 5th DCA), review denied mem., 389 So.2d 1116 (Fla.1980).

      . Although the majority opinion recites that Guerra did not learn of the child’s birth until after the beginning of the adoption process, it remains to be determined by the trial court whether, among other things, Guerra deserted or abandoned his purported child. The provisions of section 63.072, Florida Statutes (1981), offer some guidance for excuse of parental consent but cannot be considered an exhaustive list when the paramount interest is the welfare of the child.


author: DOWNEY, Judge.

text:
    Yrma M. SIGNO, M.D., and Manuel Signo, M.D., her husband, Appellants, v. FLORIDA FARM BUREAU CASUALTY INSURANCE COMPANY, etc., et al., Appellees.
    No. 82-2246.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Sept. 7, 1984.
    Ronald Y. Alvarez, West Palm Beach, for appellants.
    Joe N. Unger of Law Offices of Joe N. Unger, P.A., Miami, and Pomeroy, Betts, Wiederhold & Moses, West Palm Beach, for appellees.
   DOWNEY, Judge.

Appellants, Yrma M. Signo and Manuel Signo, seek review of a summary final judgment in favor of appellees, Wilkinson-Cooper Produce, Inc., and Ellis Wilkinson Farms.

Appellant Yrma Signo was involved in a motor vehicle collision with a truck owned by Sammie Lee Edwards and driven by Willie James Pope. The truck was transporting a load of corn owned by appellees. Signo and her husband brought suit against Edwards, Pope, and appellees, Wilkinson-Cooper Produce, Inc., and Ellis Wilkinson Farms, a/k/a Red Devon Farms. The third amended complaint alleged that Pope was an employee of both Wilkinson-Cooper Produce and Ellis Wilkinson Farms and was acting within the scope of his employment for them at the time of the collision. That complaint also alleged that Ellis Wilkinson Farms, because of Pope’s poor driving record, had been negligent in selecting Pope as an independent contractor. The circuit court entered final summary judgment on behalf of appellees, and the Signos appealed. This court affirmed the summary final judgment without an opinion. See Signo v. Wilkinson-Cooper Produce, Inc., So.2d 882 (Fla.4th DCA 1981).

Seven months after the mandate from this court issued, appellants, after obtaining leave of the circuit court, filed a fourth amended complaint. That complaint alleged that the defendants, Wilkinson-Cooper Produce, Inc., and Ellis Wilkinson Farms, were bailees of the vehicle driven by Pope with the appellee-bailees’ permission and, as such, were liable for the negligent operation of the vehicle. The appel-lees moved for summary judgment on the ground that the plaintiffs were estopped on theories of res judicata, estoppel by judgment, and law of the case from asserting a cause of action based on the relationship of the appellees to the driver and owner of the vehicle as this issue had already been adjudicated in the first suit. The circuit court once again entered a summary final judgment for the appellees and, once again, the Signos seek review of that judgment.

Appellants contend the circuit court erred in entering summary judgment because they alleged an entirely new and distinct cause of action in the fourth amended complaint and because permissive joinder of causes of action is the procedural rule in Florida. More specifically, appellants argue that res judicata does not apply in this case because one of the necessary elements, identity of the cause of action in the two cases, does not exist.

In their brief appellants contend that the only issue that was decided in the original summary judgment is that an employer of an independent contractor does not have a duty to investigate the independent contractor’s driving record prior to hiring him. However, appellees point out that the duty arising from the independent contractual relationship was only one of two issues resolved by the summary judgment. More importantly, the first summary judgment ruled in favor of the appellees on the claim that appellees were liable based upon the doctrine of respondeat superior, i.e., that appellees were liable because they were Pope’s employers. This is undoubtedly correct. The only material difference between the third and fourth amended complaints is that in the third amended complaint appellants sought to establish the liability of appellees because they were Pope’s employers and as such were liable for his negligent conduct in the scope of his employment, and in the fourth amended complaint appellants sought to establish the liability of appellees based upon their status as bailees of the truck and as such liable for Pope’s negligence when they permitted Pope to drive the truck. Query: does an adjudication that appellees are not liable as employers for Pope’s negligence in driving the truck set at rest the claim that appellees, as bailees of the truck, are liable for Pope’s negligence? We think it does and that the circuit court properly granted summary judgment.

The law involving the doctrine of res judicata and estoppel by judgment involves some difficult nuances, and the cases are not consistent by any means. In any event, we believe the answer to the question presented here is found in a proper understanding of what is precluded by the doctrine of res judicata. The Florida cases are uniform in their announcement of the requisite elements of res judiciata. There must be 1) identity in the thing sued for; 2) identity of the cause of action; 3) identity of persons and parties of the action; and 4) identity of the quality in the person for or against whom the claim is made. Donahue v. Davis, 68 So.2d 163 (Fla.1953); Poe v. State Road Department, 127 So.2d 898 (Fla.1st DCA 1961).

Appellants say that a claim that the appellees were liable for Pope’s negligence because they were his employers constitutes a different cause of action from the claim that they were liable for Pope’s negligence because they were bailees of the truck, because the evidentiary facts necessary to prove the status of the appellees as employers are different from the evidentia-ry facts necessary to prove their status as bailees. However, we are of the view that appellants’ perception of the cause of action precluded by the doctrine of res judica-ta is too narrow. In our judgment the mere changing of the theory on which the plaintiff proceeds does not constitute a distinct and different cause of action obviating the defense of res judicata. But see Hardee v. Gordon Thompson Chevrolet, Inc., 154 So.2d 174 (Fla.1st DCA 1963).

The American Law Institute, Restatement of the "Law of Judgments, Second, §§ 24 and 25, contains an effective discussion on the subject. It is pointed out there that much of the confusion and misunderstanding in this area is generated by the terms used, such as claim, cause of action, theory of recovery, grounds, and remedies. The essence of what is intended to be precluded under the concept of res judicata is set forth in Section 24(1) of the Restatement:

(1) When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.

Restatement, page 196.

Illustration No. 8, page 213, contains a practical example that is somewhat similar to this case.

From one episode or transaction one cause of action emerges, though different theories of liability may exist. As the text writer puts it:

That a number of different legal theories casting liability on an actor may apply to a given episode does not create multiple transactions and hence multiple claims. This remains true although the several legal theories depend on different shadings of the facts, or would emphasize different elements of the facts, or would call for different measures of liability or different kinds of relief.

Restatement, page 200.

See, too, the discussion at 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4407.

As we see it, the transaction here was the collision between Pope and Mrs. Signo while Pope was transporting appellees’ produce. Any theories for holding appellees liable for injuries resulting from that transaction not pleaded in the third amended complaint could not properly be pleaded in a fourth amended complaint after affirmance of a summary judgment for the appel-lees on the theories raised in the third amended complaint.

The Supreme Court of Florida followed the foregoing rationale in Woodson v. Woodson, 89 So.2d 665 (Fla.1956), where a widow sued to recover for the wrongful death of her husband on the theory that he was an invited guest passenger and the defendant was grossly negligent. This suit resulted in a summary judgment for defendant. The widow then filed a second suit for her husband’s death, alleging that the deceased and defendant were joint ven-turers in the control of the truck. A later amendment to the complaint alleged that the relationship was of private carrier for hire and passenger. The defendant alleged these claims were res judicata because the instant action was identical to and concluded by the first action. The supreme court agreed and affirmed the summary judgment for defendant in her second action.

One of the cases relied on by the supreme court in Woodson, supra, is Hay v. Salisbury, 92 Fla. 446, 109 So. 617 (1926). In that case Hay sued Salisbury for specific performance of a verbal agreement to convey certain real property. Salisbury alleged the issues were res judicata as a result of a judgment he obtained in a prior suit commenced by him against Hay to quiet Salisbury’s title against Hay’s assertion of some record interest in the property. The supreme court affirmed a judgment for Salisbury holding that the issues were res judicata because they arose out of the same cause of action and so Hay should have litigated the specific performance claim in the first suit. The doctrine of res judicata precludes litigation of issues tried in a prior suit and those issues which could have been there litigated.

In our view, the claim raised in the fourth amended complaint could have been litigated in the third amended complaint. Accordingly, we affirm the summary judgment for the appellees.

AFFIRMED.

BERANEK and HERSEY, JJ., concur.


author: PER CURIAM.

text:
    COASTAL PETROLEUM COMPANY, and Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, Appellants, v. AMERICAN CYANAMID COMPANY, a Maine Corporation, Appellee. and COASTAL PETROLEUM COMPANY, and Board of Trustees of the Internal Improvement Trust Fund of the State of Florida, Appellants, v. ESTECH, INC., a Delaware corporation, Appellee.
    Nos. 83-1378, 83-1413, 83-1425 and 83-1478.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.

      Robert J. Angerer of Law Offices of Robert J. Angerer, Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom and Kitchen, Tallahassee, and C. Dean Reasoner of Reasoner, Davis & Vinson, Washington, D.C., for appellant Coastal Petroleum Co.
    Robert J. Beckham and James R. Hubbard of Beckham & McAliley, P.A., William C. Crenshaw of Valdes-Fauli, Richardson & Cobb, P.A., Miami, and Jim Smith, Atty. Gen., Louis F. Hubener and Bruce Barkett, Asst. Attys. Gen., Tallahassee, for appellant Bd. of Trustees of the Internal Improvement Trust Fund.
    Julian Clarkson and Hume F. Coleman of Holland & Knight, Tallahassee, for all ap-pellees.
   PER CURIAM.

Coastal Petroleum Company and the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida were codefendants below in separate quiet title actions. They appeal the summary final judgments rendered in favor of American Cyanamid Company and Estech, Inc., plaintiffs below. We affirm.

In 1883 the Trustees deeded certain lands in Polk County as swamp and overflowed lands to plaintiffs’ predecessors in title. These lands included some areas of the riverbed of the Peace River. Plaintiffs deraigned their titles from these deeds, which contained no reservations of any right, title or interest by the Trustees. In these actions, they sought to quiet title to these lands pursuant to chapter 65, Florida Statutes (1981).

As a starting point for our discussion, it should be recalled that the State of Florida was admitted to the Union by Act of Congress approved March 3, 1845. In 1850 the United States Congress enacted the Swamp Lands Act, granting to the various states of the union swamp and overflowed lands, which were unfit for cultivation and unsold on or after September 28, 1850. 43 U.S.C. § 982 (1964) (effective September 28, 1850). In 1857 patents for the lands here involved were issued to the state pursuant to the 1850 act. Prior to issuance of these patents, the Florida General Assembly had vested the power of sale over all swamp and overflowed lands in the Trustees. Ch. 610, §§ 1 & 2, Laws of Fla. (1855).

In 1977 Coastal Petroleum filed several suits in the United States District Court in Leon County, Florida, against plaintiffs. Coastal sought to recover damages for the alleged conversion of phosphate from these lands. Coastal Petroleum claimed the lands were state owned sovereignty lands subject to a lease between it and its lessor, the Trustees, entered into in 1946. We are advised that these federal cases are now pending.

After Coastal initiated the litigation in the federal court, plaintiffs, in 1982 and 1983, filed quiet title suits in the Polk County Circuit Court seeking to confirm their ownership of the lands at issue. They also sought to remove the cloud created by Coastal’s claim that the lands were state owned sovereignty lands subject to Coastal’s lease.

Coastal moved to dismiss the suits to quiet title based on Mabie v. Garden Street Management Corp., 397 So.2d 920 (Fla. 1981). The trial court denied the motion. Plaintiffs then filed motions for summary judgment. The trial court granted these motions because, under the doctrine of legal estoppel, the conveyances of the lands by the United States and the State of Florida vested fee simple title in the plaintiffs. Coastal and the Trustees filed timely appeals from both summary final judgments. For purposes of oral argument, the appeals were consolidated. Since these cases involve identical issues, we address them in a single opinion.

Defendants raise several points. Initially, they assert the trial court should have dismissed the case for improper venue. This issue, however, has been decided adversely to appellants in Board of Trustees of the Internal Improvement Trust Fund v. Mobil Oil Corp., 455 So.2d 412 (Fla.2d DCA 1984), so we do not address it here.

In arguing that the trial court erred in entering the judgments, the Trustees raised three substantive questions:

1. Do the 1883 swamp and overflowed lands deeds issued by the Trustees include sovereignty lands below the ordinary high-water mark of navigable rivers where the Trustees held no title to such sovereignty lands at the time of the conveyances?
2. Does the doctrine of legal estoppel or estoppel by deed apply to 1883 swamp and overflowed deeds barring the Trustees' assertion of title to sovereignty lands?
3. Does the Marketable Record Title Act, chapter 712, Florida Statutes, operate to divest the Trustees of title to sovereignty lands below the ordinary high-water mark of navigable rivers?

In its brief, Coastal raises the additional point that the trial court erred in disposing of this litigation by summary final judgment. That point, however, is subsumed by the three substantive questions raised by the Trustees, which we now briefly discuss.

1. The sovereignty lands issue.

As to the first issue, the trial court rejected the Trustees’ argument that the plaintiffs took title with “notice of navigability” so that the Trustees’ conveyances did not include sovereignty lands. See Odom v. Deltona Corp., 341 So.2d 977, 988 (Fla. 1976). The trial court observed that these lands were surveyed before they were conveyed into private ownership as swamp and overflowed lands; furthermore, no water courses on the lands were meandered by the original government surveyors. Cf. Broward v. Mabry, 58 Fla. 398, 50 So. 826 (1909). The court determined that when the state later conveyed such lands as swamp and overflowed lands without limitation or reservation of state owned sovereignty lands, the lands so conveyed were not subject to any “notice of navigability.” Similarly, the court held the same was true when the lands were conveyed by the United States Government patent without limitation or reservation. Cf. Pierce v. Warren, 47 So.2d 857 (Fla. 1950), cert. denied, 341 U.S. 914, 71 S.Ct. 734, 95 L.Ed. 1350 (1951), and Martin v. Busch, 93 Fla. 535, 112 So. 274 (1927).

We agree with the above conclusions of the trial court. Section 197.228(2), Florida Statutes (1981), recognizes that this state’s unconditional conveyance of land to private individuals without reservation of public rights is a contemporaneous finding that the land is not sovereignty land. Here, the Trustees conveyed the lands in question to private individuals as swamp and overflowed lands in 1883, without any reservation of rights in the deeds. The contemporaneous findings made by the Trustees when they executed their conveyances and the decisions by the government surveyors not to meander any of these watercourses are not now open to question. Rather, at this late date, we must accept their actions as correct and accord the Trustees’ conveyances the legal sanctity they deserve. See Odom v. Deltona Corp., 341 So.2d at 984, 988-989.

2. The legal estoppel question.

While the trial judge considered each of the issues urged by the defendants, he apparently grounded the summary final judgments primarily on the principle of legal estoppel. We think the trial judge was correct in quieting the fee simple title in the plaintiffs on this basis. First, the court properly concluded that defendants are es-topped from asserting any right or title in derogation of the 1883 deeds conveying swamp and overflowed lands. Board of Trustees of the Internal Improvement Fund v. Lobean, 127 So.2d 98 (Fla. 1961) (legal estoppel is determined by the intentions of the parties as expressed in the deed); see also Florida Board of Forestry v. Lindsay, 205 So.2d 358, 361 (Fla. 2d DCA 1967), and City of Tarpon Springs v. Koch, 142 So.2d 763 (Fla. 2d DCA 1962), cert. discharged, 155 So.2d 151 (Fla. 1963). Again, in addressing this issue, the Trustees urge that the lands were sovereignty in character, but they did not obtain title to them until the legislature enacted chapter 69-308, Laws of Florida. See § 253.12, Fla.Stat. (1971) (vesting title to submerged lands under navigable waters in the Trustees). Thus, they argue that they were without authority to ever convey title until more than eighty years after issuance of the deeds relied on by plaintiffs. Even assuming, arguendo, that the lands were sovereignty as opposed to swamp and overflowed lands, titles acquired by defendants to these lands after their conveyance to the plaintiffs inured to the benefit of the plaintiffs as grantees. Daniell v. Sherrill, 48 So.2d 736, 740 (Fla. 1950); Spencer v. Wiegert, 117 So.2d 221 (Fla. 2d DCA 1959), cert. denied, 122 So.2d 406 (Fla. 1960).

Accordingly, we hold that the doctrine of legal estoppel bars any claim of ownership by the Trustees, since they did not reserve any rights in the deeds to the plaintiffs’ predecessors. It follows that Coastal Petroleum is also estopped from claiming any right or title against plaintiffs under its lease from defendants. McAdoo v. Moses, 101 Fla. 936, 132 So. 638, 640 (1931); Key West Wharf and Coal Co. v. Porter, 63 Fla. 448, 58 So. 599, 610 (1912).

3. Applicability of the Marketable Record Title Act.

The final issue we address is whether the Marketable Record Title Act (MRTA), chapter 712, Florida Statutes, applies to the 1883 swamp and overflowed deeds. The legislature adopted MRTA in 1963. Section 712.02, Florida Statutes (1963) provides that any person whose chain of title extends from any title transaction recorded over thirty years has a marketable record title free and clear of all claims except those in 712.03. MRTA, however, does not affect the state’s right, title or interest reserved in a patent or deed by which the state parted with title if the reservation is explicit. § 712.04, Fla.Stat. (1981); Sawyer v. Modrall, 286 So.2d 610 (Fla. 4th DCA 1973), cert. denied, 297 So.2d 562 (Fla. 1974). See also Odom, 341 So.2d at 989. Accord Starnes v. Marcon Investment Group, 571 F.2d 1369 (5th Cir. 1978).

After the supreme court decided Odom, the 1978 legislature amended section 712.-03, Florida Statutes, to exempt state title to lands beneath navigable waters acquired by virtue of sovereignty. See § 712.03(7), effective June 15, 1978. The Trustees assert that the lands were sovereignty lands and thus exempted from MRTA’s application by the 1978 amendment. As previously noted, we agree with the trial court’s determination that these lands were not sovereign in nature.

Even assuming, arguendo, the lands were sovereignty lands, we cannot agree with the Trustees. Rather, we align ourselves with the view recently expressed by the Fifth District Court of Appeal. There our sister court held that section 712.03(7) does not apply retroactively even where the Trustees themselves wrongfully issued a deed at the “root of title” prior to the initial passage of MRTA in 1963. Board of Trustees of the Internal Improvement Trust Fund v. Paradise Fruit Co., 414 So.2d 10 (Fla. 5th DCA 1982), petition for review denied, 432 So.2d 37 (Fla. 1983). Here, as in Paradise Fruit Co., the Trustees executed the deeds, which are the plaintiffs' “root of title.” § 712.01(2), Fla. Stat. (1981). Plaintiffs’ titles under the 1883 deeds were perfected under MRTA, as enacted in 1963; therefore, retroactive construction of the amendment would unconstitutionally deprive them of rights vested in 1963. Paradise Fruit Co., 414 So.2d at 11. See also State Department of Natural Resources v. Contemporary Land Sales, Inc., 400 So.2d 488 (Fla. 5th DCA 1981). Consequently, MRTA vested title to these lands in the plaintiffs even if they were sovereignty lands.

Accordingly, we affirm the summary final judgments in each of the cases. However, because we recognize the significant impact of our decision on the riverbeds of the Peace River, we certify the following questions to the Supreme Court of Florida as questions of great public importance:

1. DO THE 1883 SWAMP AND OVERFLOWED LANDS DEEDS ISSUED
BY THE TRUSTEES INCLUDE SOVEREIGNTY LANDS BELOW THE ORDINARY HIGH-WATER MARK OF NAVIGABLE RIVERS?
2. DOES THE DOCTRINE OF LEGAL ESTOPPEL OR ESTOPPEL BY DEED APPLY TO 1883 SWAMP AND OVERFLOWED DEEDS BARRING THE TRUSTEES’ ASSERTION OF TITLE TO SOVEREIGNTY LANDS?
3. DOES THE MARKETABLE RECORD TITLE ACT, CHAPTER 712, FLORIDA STATUTES, OPERATE TO DIVEST THE TRUSTEES OF TITLE TO SOVEREIGNTY LANDS BELOW THE ORDINARY HIGH-WATER MARK OF NAVIGABLE RIVERS?

HOBSON, A.C.J., and SCHEB and LE-HAN, JJ., concur.


author: JORGENSON, Judge.

text:
    FEDERATED DEPARTMENT STORES, INC. d/b/a Burdines, Appellant, v. Jane DOE and John Doe, her husband, and Equity Properties and Development Company, Inc., Appellees. EQUITY PROPERTIES AND DEVELOPMENT COMPANY, INC., Appellant, v. Jane DOE and John Doe, her husband, Appellees.
    Nos. 83-1286, 83-1308.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Rehearing Denied Sept. 7, 1984.

      Magill, Reid & Lewis and Fred Lewis, Miami, for appellant Federated Dept. Stores, Inc., d/b/a Burdines.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Richard A. Sherman, Miami, for appellant Equity Properties and Development Co., Inc.
    Kathleen Phillips, Joel Lumer, Miami, Neil Chonin, Coral Gables, for appellees Jane Doe and John Doe, her husband.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

Federated Department Stores, Inc., d/b/a Burdines [Burdines] and its co-defendant Equity Properties and Development Company, Inc. [Equity] appeal a judgment entered following a jury verdict which found them liable for the damages suffered by the plaintiff, Jane Doe, who was abducted by a third party from a parking garage owned by Equity and adjacent to Burdines. The jury apportioned liability to Equity and Burdines 85% and 15% respectively. We affirm the judgment of the trial court with respect to Equity but, for the following reasons, reverse the judgment entered against Burdines.

Jane Doe drove her automobile into the parking garage owned and maintained by Equity at the 163rd Street Shopping Center at 11:15 a.m., on a weekday morning, with the intention of doing business at Burdines. As soon as she parked her car and opened the door, an armed man accosted her, drove her to a remote location and sexually assaulted and robbed her. Doe was eventually released and her car was found several days later with two dead bodies in the trunk.

At trial Doe introduced police records covering the two prior years of reported crimes at the shopping center including four armed robberies. Doe also presented an expert who testified that the shopping center’s security plan was not within a reasonable standard of care. The expert also was asked whether Burdines acted negligently in coordinating the security plan with the shopping center. Counsel for Burdines objected to the question on the ground that there was no evidence that Burdines had responsibility for security outside its store premises. The trial court overruled the objection and allowed the expert to testify that “they [Burdines and Equity] are basically covering the same territory and they have virtually the same responsibilities.”

At the conclusion of the plaintiff’s case Burdines moved for a directed verdict on the ground that as a lessee of a store in the shopping center it owed no duty to keep the shopping center common areas, such as the parking lot, secure. Burdines’ counsel argued that under the lease between Bur-dines and Equity, Equity had the sole responsibility for maintaining and policing the parking area. The trial court denied Burdines’ motion for directed verdict relying upon Combs v. Aetna Insurance Co., 410 So.2d 1377 (Fla. 4th DCA 1982).

Combs held that “control [of a common parking lot] is not the sole basis for liability in a slip and fall action against a landlord and tenant,” id. at 1378 (emphasis added). Combs involved a suit brought by a restaurant patron who was injured when she tripped over an elevated divider located in a shopping center parking lot. The suit was brought against both the owner of the restaurant and his lessor, the owner of the shopping center, who had exclusive control over the parking lot. The court in Combs held that the restaurant owner, despite his lack of control over the parking lot, had a duty to warn his patrons of the known dangerous condition of the improperly marked or lighted elevated divider.

We have no difficulty in distinguishing the facts of Combs from those in the case sub judice. The liability of a lessee for a known static dangerous condition under the lessor’s exclusive control, such as the parking lot divider, is simply not analogous to the lessee’s liability for criminal acts of third parties occurring in an area contractually under the lessor’s exclusive control. A warning posted in Burdines’ entrance-way or anywhere on Burdines’ property would not have prevented the tragic events which occurred in the parking garage controlled by Equity. Under the lease between Equity and Burdines, admitted into evidence at trial, Burdines is required to pay Equity “as additional rent ... that proportion of the total actual cost to Lessor of maintaining ... the parking area of the shopping center.”

We cannot agree with the trial court that Combs applies to the case at bar. We do agree with and adopt the law and reasoning of the court in Morgan v. Bucks Associates, 428 F.Supp. 546 (E.D.Penn. 1977), regarding a lessee's liability for third party criminal attacks on invitees occurring in an area exclusively controlled by the lessor. The plaintiff in Morgan was an employee of a store located in a shopping center and was assaulted by a third party as she was walking to her car in the shopping center parking lot. The trial court granted the motion for directed verdict made by the plaintiff’s employer, a lessee in the shopping center. The court denied the shopping center’s motion for a new trial following an adverse jury verdict and stated that

where the owner of real estate leases parts thereof to several tenants, but retains control of the common areas which are to be used by the business invitees of the various tenants, the obligation of keeping the common areas safe for such business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the leases [citation omitted],

id. at 549.

The trial court erred in not granting Burdines’ motion for directed verdict and in applying Combs to the facts before it. The trial court also erred in allowing into evidence testimony of the plaintiff’s expert to the effect that Burdines and Equity each had a duty to keep the parking area safe. “It is elementary that the conclusion or opinion of an expert witness based on facts and inferences not supported by the evidence in a cause has no evidential value.” Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957). An expert's opinion, if based upon an erroneous concept of law, is equally devoid of competency. See Stubbs v. State Department of Transportation, 332 So.2d 155 (Fla. 1st DCA 1976).

The jury in the instant case should not have received the incompetent testimony of the plaintiff’s expert and should not have been instructed that Burdines had a Combs type of duty to warn.

As to Equity we affirm the judgment entered by the trial court upon a holding that it had a duty to guard against subjecting its business invitees to reasonably foreseeable dangers. See Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla.3d DCA 1980). The evidence concerning prior crimes which occurred in the shopping center was properly admitted. See Green Companies v. Divicenzo, 432 So.2d 86 (Fla.3d DCA 1983); Admiral’s Port Condominium v. Feldman, 426 So.2d 1054 (Fla.3d DCA), review denied mem., 434 So.2d 887 (Fla.1983).

For the foregoing reasons the judgment of the trial court is affirmed in part, reversed in part and remanded with directions to enter a final judgment finding Equity 100% negligent.

Affirmed in part, reversed in part and remanded with directions.


text:
    IDY CORPORATION, d/b/a Crazy Horse Saloon and Kent Insurance Company, Appellant, v. Penelope FENTON, Appellee.
    No. 83-2350.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Rehearing Denied Sept. 7, 1984.
    Gelb & Spatz and Carl A. Spatz, Kathleen V. McCarthy, Miami, for appellant.
    DeMeo & Sherman and Thomas G. Sherman, Coral Gables, for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Plaintiff brought suit against Idy Corp., d/b/a Crazy Horse Saloon and its insurance company seeking compensatory and punitive damages. She alleged injury resulting from two separate acts of assault and battery committed on the same evening by Crazy Horse employees. The trial court directed a verdict on the issue of liability as to both alleged assault incidents. The jury subsequently awarded $5,000 compensatory damages and $50,000 punitive damages to the plaintiff. There was no apportionment of damages as between the two alleged assaults. Idy Corp. appeals, asserting as its main contention that the trial court erred in directing a verdict in reference to the first assault.

A trial court may properly direct a verdict only in the absence of any evidence or reasonable inferences supportive of the position of the nonmoving party. Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Dandashi v. Fine, 397 So.2d 442 (Fla.3d DCA 1981). Although defendant offered no testimony at trial concerning the second assault, it did offer some evidence to dispute the tortious nature of the first alleged assault. Several witnesses gave testimony tending to prove that plaintiff became a trespasser by creating a disturbance and then refusing to leave the premises after being asked. The issue of whether defendant’s employees used reasonable force to eject the plaintiff was, therefore, a jury question. The directed verdict was improper.

Reversed and remanded for a new trial.

      . Two different attorneys appeared on behalf of the defendant, Idy Corp., as its insurer would defend only against the claim for compensatory damages. Idy Corp. retained independent counsel to represent it against the punitive damage claim. Idy Corp. asserts as error the trial court’s refusal to allow both attorneys to participate in the first day of a two-day trial. Our reversal on other grounds renders this issue moot. On retrial, both attorneys shall be given a full opportunity to participate.

      . Defendant’s claim that the punitive damage award was excessive need not be reached in light of our reversal and remand for a new trial.


author: BASKIN, Judge.

text:
    The GRAND UNION COMPANY, a Delaware corporation, and Spector & Sons and Liberty Mutual Insurance Company, Appellants, v. Arline ROCKER, Appellee.
    Nos. 83-1594, 83-1617 and 83-1640.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Magill, Reid & Lewis and R. Fred Lewis, Daniels & Hicks and Patrice A. Talisman, Miami, Richard E. Hardwick, Coral Gables, for appellants.
    Gilmour, Morgan & Rosenblatt and Victor Lance, Miami, for appellee.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

In consolidated appeals, The Grand Union Company (Grand Union) and Spector & Sons challenge adverse judgments entered in a slip-and-fall action. We reverse.

On a rainy day in August, 1980, Arline Rocker and her daughter went shopping at the Grand Union store located at 199th Street and N.W. 2nd Avenue in Miami. When they finished shopping, Mrs. Rocker asked her daughter to wait in front of the store with the groceries while Mrs. Rocker went to the parking lot to get the car. As Mrs. Rocker started down the ramp in front of the store, she slipped and fell, injuring herself. Seeking to recover damages for these injuries, Mrs. Rocker filed suit against Grand Union; Spector & Sons (the property owner), and Spector & Sons’ insurer, Liberty Mutual Insurance Company.

In her complaint, Mrs. Rocker alleged that appellants negligently maintained the sidewalks and the parking and service areas, and allowed the ramp at the entrance of the store to remain in a dangerous and unsafe condition. Grand Union filed a crossclaim against Spector & Sons for contribution and indemnification. At trial, Mrs. Rocker presented expert testimony that the ramp violated both the present South Florida Building Code and the code in effect in 1965 when the ramp was built. The experts, an architect and a civil engineer, testified that the slope of the ramp exceeded the maximum slope specified in the building codes and that the ramp did not have the required non-slip or “broomed” concrete surface. At the conclusion of all the evidence, and despite the objections of appellants, the trial court instructed the jury that a violation of the South Florida Building Code constitutes negligence and that if the jurors found that “a person alleged to have been negligent violated this ordinance, such person was negligent.” The jury returned a verdict finding Grand Union 60% negligent, Spec-tor & Sons 40% negligent and Mrs. Rocker not negligent. The court entered final judgment in accordance with the verdict and directed a verdict in favor of Spector & Sons on Grand Union’s indemnification claim. Grand Union appeals the order directing a verdict in favor of Spector & Sons on the indemnification claim and both Grand Union and Spector & Sons seek reversal of the final judgment entered in favor of Mrs. Rocker.

The primary issue presented for consideration concerns the propriety of the trial court’s instruction to the jury that a violation of the South Florida Building Code is negligence. We must determine whether a violation of the South Florida Building Code is the type of statutory violation which would constitute negligence per se. In deJesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973), the Florida Supreme Court stated that not all violations of statutes are negligence per se. The court divided statutory violations into three categories: (1) violation of a strict liability statute designed to protect a particular class of persons who are unable to protect themselves, constituting negligence per se; (2) violation of a statute establishing a duty to take precautions to protect a particular class of persons from a particular injury or type of injury, also constituting negligence per se; (3) violation of any other kind of statute, constituting mere prima facie evidence of negligence.

The South Florida Building Code requires that ramps do not exceed a specific slope and that they have either a “non-slip” or “broomed concrete” surface. S.Fla. Bldg.Code, §§ 3106.2; 3106.6 (1979); S.Fla. Bldg.Code, § 3103 (1965). Violations of the code fall outside the parameters of the strict liability category set forth in deJesus. Furthermore, building code violations do not fit into the second deJesus category because the building code is designed to protect the general public rather than a particular class of individuals. See Groh v. Hasencamp, 407 So.2d 949 (Fla. 3d DCA 1981), review denied, 415 So.2d 1360 (Fla.1982) (violation of zoning ordinance for protection of general public rather than particular class of persons evidence of negligence and not negligence per se); Schulte v. Gold, 360 So.2d 428 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1367 (Fla.1979) (violation of statute providing that every public lodging establishment shall be properly plumbed, lighted, heated, cooled and ventilated would not constitute negligence per se because such statute was designed to protect public generally and not specific class of persons); Morrison Cafeterias Consolidated v. Lee, 215 So.2d 491 (Fla. 1st DCA 1968) (because violation of building code is at most prima facie evidence of negligence, it was reversible error to charge jury that a violation of the code constituted negligence per se). See generally, Richardson v. Fountain, 154 So.2d 709 (Fla. 2d DCA), cert. denied, 157 So.2d 818 (Fla.1963). That protection is extended to the general public by the building code is evidenced by the intent expressed in Chapter 553, Florida Statutes, (1979), mandating that Florida adopt building codes

to provide a mechanism for the promulgation, adoption, and enforcement of state minimum building codes which contain standards flexible enough to cover all phases of construction and which allow reasonable protection for public safety, health, and general welfare for all the people of Florida at the most reasonable cost to the consumer.

§ 553.72, Fla.Stat. (1979). In addition, evidence that the aim of the building code is the protection of the general public appears in its stated purpose:

The purpose of this Code is to provide certain minimum standards, provisions and requirements for safe and stable design, methods of construction and uses of materials in buildings and/or structures hereafter erected, constructed, enlarged, altered, repaired, moved, converted to other uses or demolished, to provide for the safety of workers and others during these operations and to regulate the equipment, materials, use and occupancy of all buildings and/or structures. The provisions of this Code shall be deemed to supplement any and all State laws of the State of Florida relating to building.

S.Fla.Bldg.Code, § 102 (1979).

For these reasons, we conclude that the violations of the South Florida Building Code demonstrated in this case are only prima facie evidence of negligence and not negligence per se. We therefore hold that the trial court erred in instructing the jury that a code violation constituted negligence per se; a new trial is required. Judgment entered pursuant to the jury verdict and order on indemnification are reversed.

Remanded for further proceedings consistent with this opinion.

       The building code requirements applicable here provide:
      Ramps shall be classified as Class A or Class B in accordance with the following table:
      _Class A_Class B
      Width_44 inches and greater 30 to 44 inches
      Slope_1 lo 1 3/16 in 12 1 3/16 to 2 in 12
      Maximum height
      between landings_No limit_12 feet
      (a) A ramp shall have a non-slip surface.
      (b) Broomed concrete is accepted as a non-slip surface.
      S.Fla.Bldg.Code, §§ 3106.2; 3106.6 (1979).

        Ramps shall have non-slip surfaces and shall have a slope not greater than 1 in 8. S.Fla.Bldg.Code, § 3103(b) (1965).


author: SCHWARTZ, Chief Judge.

text:
    Michael RICHMOND, Appellant, v. GENERAL ENGINEERING ENTERPRISES CO., a Florida corporation, Appellee.
    No. 83-2937.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Rehearing Denied Sept. 14, 1984.

      Welbaum, Zook, Jones & Williams and John D. Weatherford, Miami, for appellant.
    No appearance for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   SCHWARTZ, Chief Judge.

Richmond sued for money damages based on the alleged “negligence” of the defendant-appellee in permitting branches of a ficus tree growing on its property to extend over and onto the next lot where the plaintiffs home was located. We affirm the trial court’s dismissal of the complaint.

While there is substantial authority to the contrary, which may indeed represent the majority rule, cases collected, 2 C.J.S. Adjoining Landowners § 53, n. 37 (1972), we agree with those decisions which hold that in view of the undoubted right of the landowner himself to cut off intruding roots or branches at the property line, 2 C.J.S. Adjoining Landowners § 52 (1972), no such action may be maintained. Sterling v. Weinstein, 75 A.2d 144 (D.C.1950); Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490 (1931); Norwood v. City of New York, 95 Misc.2d 55, 406 N.Y.S.2d 256, 258 (Civ.Ct.1978); Mead v. Vincent, 199 Okl. 508, 187 P.2d 994 (1947); Granberry v. Jones, 188 Tenn. 51, 216 S.W.2d 721 (1949); see Knepper v. Slovak, 31 Fla.Supp. 131 (15th Cir.Ct.1968). It seems to us that the recognition of an action of this type to redress a claimed wrong which might otherwise be obviated by the time-honored remedy of self-help would represent a wasteful and needless use of the judicial system. See Kirou v. Oceanside Plaza Condominium Association, Inc., 425 So.2d 650 (Fla.3d DCA 1983).

Affirmed.

      . We do not consider whether the reasonable expenses so incurred are recoverable. See Olson v. Westerberg, 2 Ill.App.2d 285, 119 N.E.2d 413 (1954).


text:
    Richard L. PYEATT, Appellant, v. Anne T. CULLEN and Friendship Inn of Key Largo, Inc., a Florida corporation, Appellees.
    No. 84-236.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Rehearing Denied Sept. 7, 1984.

      Papy, Poole, Weissenborn & Papy and Sheridan Weissenborn, Coral Gables, for appellant.
    George A. Buchmann, South Miami, for appellees.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from dismissal of an action to reform a mortgage to reflect counsel’s representations during settlement negotiations of a pending action.

Anne Cullen was not a party to the lawsuit brought against her husband, Richard, and a corporation jointly owned by the Cul-lens. As a result, the trial court correctly refused to reform the mortgage to reflect her collateral assignment of the mortgage securing the note signed by her husband.

Affirmed.


text:
    Benjamin J. LAYNE, a/k/a B.J. Layne, Appellant/Cross-Appellee, v. J.W. SMALLEY, as guardian for Elaine LAYNE, Appellee/Cross-Appellant.
    Nos. 83-2715, 84-241.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Rehearing Denied Sept. 7, 1984.
    Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellant/cross-appel-lee.
    Payton & Rachlin, and Richard Rachlin and Guy W. Turner, Miami, for appel-lee/ cross-appellant.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


text:
    COCONUT GROVE BAPTIST CHURCH, INC., a nonprofit Florida corporation, Appellant, v. FIRST BAPTIST CHURCH OF SOUTH MIAMI, INC., a nonprofit Florida corporation, Appellee.
    No. 83-2974.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Rehearing Denied Sept. 7, 1984.
    Calvin J. Faucett, Orlando, for appellant.
    Abney, Diliberto, Sibley & Guttieres and A. Chester Abney, Miami, Truman A. Skinner, South Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and JORGENSON,-JJ.
   PER CURIAM.

Affirmed. See Pompano Atlantis Condominium Association, Inc. v. Merlino, 415 So.2d 153 (Fla. 4th DCA 1982); In re Estate of Beeman, 391 So.2d 276 (Fla. 4th DCA 1980); Fiber Crete Homes, Inc. v. Division of Administration, State of Florida, Department of Transportation, 315 So.2d 492 (Fla. 4th DCA 1975).