author: BASKIN, Judge.

text:
    Richard Kenneth FORSTER, Appellant, v. Norma Coreen FORSTER, Appellee.
    No. 82-1804.
    District Court of Appeal of Florida, Third District.
    July 26, 1983.
    Rehearing Denied Sept. 21, 1983.
    Ferrell & Ferrell, and Milton Ferrell, Miami, for appellant.
    Marks, Aronovitz & Leinoff, and Andrew M. Leinoff, Miami, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

The subject of this appeal is the propriety of the trial court’s disposition of property rights in the final judgment of dissolution terminating a long-term marriage.

Dr. and Mrs. Forster were married for 22 years. They have three children from the marriage, only one of whom is still a minor. In the first few years of their marriage, Mrs. Forster worked as a dental hygienist to support Dr. Forster through the early part of his medical training. During the last 18 years, however, Mrs. Forster has not worked outside of the home, instead devoting her full-time energies to serving as a homemaker and mother. Dr. Forster has supported the family as a successful ophthalmologist, earning a yearly income of more than $150,000 plus fringe benefits exceeding $50,000. The financial prosperity attained by Dr. Forster permitted the parties to enjoy a high standard of living during the course of the marriage, including, among other things, the acquisition of two homes, titled in both names — one in Dade County and one in Monroe County.

The final judgment of dissolution awarded the wife rehabilitative alimony of $2500 a month for 18 months, reduced to $2000 a month for the next 24 months, and permanent periodic alimony at $1000 a month until she remarries or either party dies, whichever occurs first. The court further awarded $6000 a year as child support for the parties’ 16-year old daughter, the only minor child, plus medical, dental and hospital expenses. As to the parties’ respective property rights in the Dade and Monroe homes, the court rejected both the wife’s lump sum alimony claim and the husband’s contention that he was the sole owner. Finding that both properties constituted estates by the entireties, the court awarded exclusive use of the Miami home to Mrs. Forster and exclusive use of the Monroe County home to Dr. Forster until the minor child reaches the age of 18 years. At that time, partition would be authorized upon appropriate proceedings if the parties did not agree on a selling price. The court ordered proceeds of the sale of the homes to be divided with the husband to receive credit for half the mortgage, taxes, insurance and repair expenditures he made for both homes during the two year period.

The husband appeals (1) the award to the wife of rehabilitative alimony and exclusive possession of the Dade County marital home; (2) the requirement that he pay the mortgage, repairs, taxes and insurance on the parties’ two Florida homes until the properties are sold. The wife cross-appeals the trial court’s alimony awards and its denial of attorneys’ fees.

The most pertinent issue presented here is whether the wife has been “shortchanged” by the financial provisions of the final judgment dissolving the marriage. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); Bullard v. Bullard, 385 So.2d 1120 (Fla. 2d DCA 1980). Finding that the wife was “short-changed” and that, therefore, the trial court’s order constituted an abuse of discretion, we reverse.

In determining alimony awards courts are required to consider such factors as the parties’ standard of living during the marriage, the duration of the marriage and the financial resources of each spouse. Section 61.08, Fla.Stat. (1981). See Canakaris; Cooley v. Cooley, 409 So.2d 533 (Fla. 4th DCA 1982). Based upon these criteria, we reject as without merit the husband’s contention that the award of rehabilitative alimony should be reduced because the court required him to pay the mortgage, repairs, taxes and insurance payments on both the Dade and Monroe homes until the time of sale. First, the record clearly reflects that the wife’s funds are inadequate to meet the obligations on the homes. Second, the circumstances indicate that a reduction in rehabilitative alimony would be inappropriate and that an increase is called for instead. Cutler v. Cutler, 421 So.2d 585 (Fla. 3d DCA 1982). Dr. Forster is a successful ophthalmologist who enjoys a yearly income of $150,000, plus fringe benefits. Mrs. Forster, on the other hand, has no significant employment history. After she obtains her degree in education, she will be venturing into the crowded job marketplace with untested skills as a middle-aged woman competing with younger individuals. Although the court found her to be a very intelligent woman and observed that “the uncontra-dicted evidence showed that she made the highest grades possible at the University of Miami where she will soon receive her undergraduate degree in Education thereby equipping her and qualifying her to teach,” it is unlikely that her undergraduate degree, received at this stage of her life, will enable her to maintain the lifestyle to which she became accustomed as the wife of a successful doctor. Furthermore, Mrs. Forster asserts that the parties contemplated that her assistance in putting Dr. Forster through the early years of his medical training would result in his supporting her and that she would not be forced to work outside the home. She contends that her husband’s affair with a younger woman interrupted his performance of their agreement and that she should not be forced to suffer the consequences when she fulfilled her obligations.

We find, therefore, based upon these facts, that the court abused its discretion in awarding rehabilitative alimony and denying the wife lump sum alimony, Canakaris; Cutler; Colucci. The parties’ assets must be distributed on an equitable basis without endangering the husband’s economic status but permitting the -wife to find her way in the world without becoming destitute, Cutler; Cuevas v. Cuevas, 381 So.2d 731 (Fla. 3d DCA 1980). Considering the parties’ 22-year marriage and their disparate financial positions, we conclude that Mrs. Forster is entitled to lump sum alimony in the form of Dr. Forster’s interest in the Dade County marital domicile, Canakaris; Locke v. Locke, 413 So.2d 431 (Fla. 3d DCA 1982); Hartley v. Hartley, 399 So.2d 1126 (Fla. 4th DCA 1981); Colucci; Cowan v. Cowan, 389 So.2d 1187 (Fla. 5th DCA 1980), and an increased award of permanent periodic alimony rather than rehabilitative alimony. See Cutler; Colucci; Bowen v. Bowen, 347 So.2d 675 (Fla. 3d DCA 1977). We therefore reverse the trial court’s rulings and award the wife the Devonwood home and its contents as lump sum alimony, as well as $3700 a month permanent periodic alimony. The wife is ordered to pay the mortgage and related payments for the Devonwood home.

We remand the cause for consideration by the trial court of attorneys’ fees under the pending motions upon which the court has not yet ruled.

Reversed and remanded.


source: Caselaw Access Project

author: BASKIN, Judge. DANIEL S. PEARSON, Judge,

license: Public Domain

text:
    Bernice GRIFFIN, Appellant, v. Bruce Emery GRIFFIN, Appellee.
    Nos. 82-2469, 83-428.
    District Court of Appeal of Florida, Third District.
    July 26, 1983.
    Rehearing Denied Sept. 16, 1983.
    Robert H. Wiggins, Miami Shores, for appellant.
    Martin D. Kahn, North Miami, for appel-lee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   BASKIN, Judge.

Although the parties had lived together for several years prior to their marriage, their marriage lasted less than three years. In the Final Judgment Dissolving Marriage the trial court ruled:

1. The bonds of marriage between Petitioner, BERNICE GRIFFIN, and Respondent, BRUCE EMERY GRIFFIN, are dissolved.
2. As lump sum alimony from the husband, the wife is awarded the husband’s interest in the parties’ house at 700 N.E. 164th Street in Dade County, Florida, and the husband shall execute and deliver to. the wife a Quit-Claim Deed conveying to the wife the husband’s interest in that house. The husband shall pay to the wife as additional lump sum alimony the sum of $50,000.00 payable $25,000.00 within 20 days from the date of this Judgment and the balance of $25,000.00 payable over five years in equal monthly installments of $416.67, the first monthly installment to be paid on or before November 1,1982.
3. In order that the wife may make the necessary psychological adjustment and so that she may retrain as a cosmetologist or for such other vocation as may be appropriate for the wife, the wife is awarded rehabilitative alimony of $1,000.00 per month (commencing November 1, 1982) for a total of 36 months. Prior to the expiration of said time, should it appear that the wife, having made a good faith attempt to become rehabilitated and self-supporting, is physically or psychologically incapable of doing so, an application to this Court for appropriate relief shall be entertained, and jurisdiction is reserved for that purpose.
4. The husband shall pay those obligations actually incurred (including any unpaid temporary alimony) through October 22, 1982, for items previously ordered to be paid by husband.
5. The husband shall pay the wife’s reasonable attorney’s fees and costs, to be determined upon further hearing, and jurisdiction is reserved for that purpose.
6. Custody of the minor children of the parties and the issue of child support, if any, shall be determined upon further hearing, and the Court reserves jurisdiction for that purpose.
7. The issue" of wife’s jewelry, purported to be in husband’s possession, shall be resolved upon further hearing.
8.The Court retains jurisdiction of this cause for the matters as set forth above, and for enforcement of the provisions of this Judgment.

Under the circumstances of this case, we find no abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Furthermore, we find no error in the trial court’s award of $3,500 as attorneys’ fees for the wife’s attorney who was retained only six days prior to trial; no record has been provided to support appellant’s contentions. See Sroczyk v. Fritz, 220 So.2d 908 (Fla.1969); Mills v. Heenan, 382 So.2d 1317 (Fla. 5th DCA 1980); Vender v. 7900 Red Road Partnership, 346 So.2d 1059 (Fla. 3d DCA 1977). Appellant’s remaining points lack merit.

Affirmed.

DANIEL S. PEARSON, Judge,

concurring.

I concur in the result reached by the majority. It is not, however, the fact that the wife’s attorney was retained only six days prior to trial that warranted the trial court limiting the attorneys’ fees award to $3,500. Rather, it is the fact that the trial court could have found that much of the work performed by these late-appearing attorneys was duplicative of work performed by the wife’s prior counsel, who had already been awarded fees for these services, which justifies the fees awarded. While the award fell far short of compensating the wife’s attorneys for the time they undoubtedly spent on the matter in the short time available to them before the final hearing, the trial court acted well within its discretion in refusing to make the husband bear the responsibility for the wife’s last-minute switch. While Mrs. Griffin was certainly free to change counsel, she is not free to expect a court to require her husband to pay for the same work twice.


author: HENDRY, Judge.

text:
    Albert D. CASH, as Executor of the Estate of Thomas E. Wood, Jr., et al., Appellants, v. The SURF CLUB, a Florida corporation, Appellee.
    Nos. 83-362, 83-363.
    District Court of Appeal of Florida, Third District.
    July 26, 1983.
    Rehearing Denied Sept. 22, 1983.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appellants.
    Mershon, Sawyer, Johnston, Dunwody & Cole and Stephen M. Corse and Charles C. Kline, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   HENDRY, Judge.

This is a consolidated appeal by plaintiffs from two non-final orders denying motions for preliminary and temporary injunctions to enjoin the Surf Club from disposing of plaintiffs’ proprietary interests in the Club, and denying a motion to vacate an order staying the cause pending final disposition of an earlier-filed action involving common issues. We reverse the denial of the requested injunctive relief and affirm the stay.

It is appellants’ main contention on appeal that the trial court abused its discretion in refusing to grant a preliminary or temporary injunction against the Surf Club. They assert that it was made to appear below that they and others similarly situated are “vested with complete ownership of all the property and franchises” occupied by the Surf Club and that the Club is attempting to sell their property rights under a false claim for alleged delinquent dues, thereby placing a cloud upon their property and seeking to divest their property rights.

The appellee Club argues primarily (1) that the stay was proper and the trial court correctly denied plaintiffs’ motion to vacate the stay, and (2) that the trial court properly denied the requested injunctive relief based on its finding that plaintiffs had failed to make the required showings for the granting of such relief.

Appellee has also raised various arguments relating to whether the stay issue has been preserved for appellate review. We find it unnecessary to address these points since it is clear that counsel for the parties agreed before the trial court to a stay of the instant litigation pending final disposition of the earlier action. The court ruled at the preliminary injunction hearing that the contemplated stay could be dissolved and the action could proceed to determination on the merits if final disposition of the earlier case did not decide the issue raised by plaintiffs’ complaint. The stay, as conditioned, appears to promote the interest of judicial economy, as well as to protect against the possibility of multiple inconsistent rulings on the same legal issue.

The parties’ agreement in the trial court to the stay, as conditioned, also makes it unnecessary for us to address appellant’s reply argument that the stay was improper in that the circumstances presented do not meet the stringent standards for abatement of the instant action on grounds of another action pending, as set forth in Horter v. Commercial Bank & Trust Co., 99 Fla. 768, 126 So. 909 (Fla.1930) (requirement of identities of the issues, parties and subject matter, so that a judgment in first suit could be pleaded in bar as a former adjudication), and Burns v. Grubbs Construction, Inc., 174 So.2d 476 (Fla. 3d DCA 1965) (requirement of exact identity of parties; also, certainty that second cause would be useless). We note, however, that the legal requirements for an abatement of plaintiffs’ action were apparently not met. It is significant, in this connection, that motions to transfer this cause to the other division of Circuit Court in which the Club’s prior action was pending were twice denied by the administrative judge of the Circuit Court.

The plaintiffs’ willingness to accept a stay was, at any rate, qualified by their desire to obtain at least preliminary injunc-tive relief to maintain the status quo. Specifically, plaintiffs sought to enjoin the Club from its plan to sell or otherwise dispose of the proprietary certificates held by each of them, which represent their interests in the Club property and franchises, and to expel them as members, for non-payment of dues allegedly owed.

In our view, plaintiffs demonstrated their entitlement to the requested injunctive relief and the trial court abused its discretion in denying the preliminary injunction. Plaintiffs’ complaint, as well as matters adduced at the hearing which supported the allegations thereof, demonstrated that plaintiffs lacked an adequate remedy at law and had a well-grounded apprehension of irreparable injury to their property and other rights represented by their proprietors’ certificates, if the Club’s plan to sell or otherwise dispose of the certificates were not enjoined. Although the nature of the rights represented by plaintiffs’ certificates had yet to be determined at the time of the hearing, it was at least clear that the certificates represented plaintiffs’ legal rights vis-a-vis the Club and that their sale or other disposition would cause irreparable injury to these rights. Cf. Sackett v. City of Coral Gables, 246 So.2d 162, 164 (Fla. 3d DCA 1971) (“relief should be awarded only in clear cases, reasonably free from doubt, and when necessary to prevent great and irreparable injury....”). This is particularly so where there was testimony at the hearing, albeit introduced by the Club, that the Club was not able even to ascertain the monetary value of the plaintiffs’ certificates, thus the injury was not susceptible of complete pecuniary compensation, and was irreparable. 29 Fla.Jur.2d Injunctions § 22 (1981); see also Puga v. Suave Shoe Corp., 374 So.2d 552 (Fla. 3d DCA 1979).

Nor do we believe, as appellee contends, that because the plaintiffs might have, but did not file a counterclaim seeking such preliminary injunctive relief in the Club’s earlier action, that this in any way affected plaintiffs’ right to pursue such relief in their lawsuit. A useful analogy may be made to Horter v. Commercial Bank & Trust Co., supra, wherein the supreme court held that “the fact that the plaintiff in the second action might have sought the same relief by a cross-bill or a cross-complaint in a prior action brought against him is not ground for abatement of the second action.” 126 So. 912. Similarly here, where, as we have said, the technical requirements for an abatement of plaintiffs’ action were not satisfied, plaintiffs’ right to seek injunctive relief in conjunction with the agreed upon stay should not have been foreclosed, or “abated”, in a sense.

For these reasons, the orders denying motions for preliminary and temporary injunc-tive relief are reversed and the cause remanded with directions to enter a preliminary injunction in accordance with the plaintiffs’ motion therefor, and to additionally consider any other equitable relief which may be necessary to ensure that plaintiffs’ rights represented by their certificates are not interfered with in any manner by the Club pending disposition of the issue raised in the instant lawsuit. The stay of the action is, accordingly, vacated for such time as is necessary to accomplish entry of the requested injunction and other appropriate relief. Upon entry of the preliminary injunction, the stay shall be reinst-ituted, and shall remain in effect under the terms and conditions upon which it was entered.

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

      . Case No. 80-21183, The Surf Club v. Murrell, et al., is the Surf Club’s action for declaratory relief in connection with a 1979 Club resolution authorizing a lease of certain Club real property for condominium development, as well as certain other actions. The Murrell case is pending in another division, division (10), of the Circuit Court.

      . This Court held in The Surf Club v. Long, 325 So.2d 66 (Fla.3d DCA 1975), that the certificates given proprietary members of the Surf Club created a contractual relationship between the Club and the holders thereof and vested in these proprietors complete ownership of all property and franchises of the Club.


author: GRIMES, Acting Chief Judge.

text:
    Bandy Bernard PEOPLES, Appellant, v. STATE of Florida, Appellee.
    No. 82-740.
    District Court of Appeal of Florida, Second District.
    July 27, 1983.
    Rehearing Denied Sept. 6, 1983.

      Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was properly convicted of burglary. The only serious question involved is whether the state proved appellant guilty of that aspect of burglary constituting a first degree felony.

Tampa police officer Williams answered a silent burglar alarm in a building at 904 East Platt Street at about 10:45 p.m. As he approached the scene, he saw a man later identified as appellant run from the back of the property on which the building was located. He observed the appellant get into an automobile and lie down as if to hide. The officer ordered him out of the car. After appellant got out, he took something from his waistband, threw it on the ground, and kicked it away from him. The officer retrieved a .22 caliber pistol from the location where appellant had kicked the object. He then placed appellant under arrest, but as he attempted to handcuff him, the appellant attacked him. In the course of subduing appellant, it became necessary for the officer to shoot him. Scientific evidence effectively demonstrated that it was appellant who had broken into the building.

Section 810.02(2), Florida Statutes (1981), provides:

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:
(a) Makes an assault upon any person.
(b) Is armed, or arms himself within such structure, with explosives or a dangerous weapon.

Proof that the burglar committed an assault or was armed with a dangerous weapon in the course of committing the offense is sufficient to convict of a first degree felony. He need not be armed within the structure because that portion of subsection (b) referring to structure contemplates only the unarmed burglar who arms himself once inside.

Section 810.011(3), Florida Statutes (1981), states:

(3) An act is committed “in the course of committing” if it occurs in an attempt to commit the offense or in flight after the attempt or commission.

The evidence sufficiently showed that appellant was armed with a dangerous weapon while he was in flight after the burglary. The jury could have concluded that appellant had the pistol in his waistband as he was running from the building, but in any event, it cannot reasonably be disputed that he had it in his possession at a point prior to the time he was arrested. In view of our holding, we need not decide the more difficult question of whether appellant was still in flight when he assaulted officer Williams following his arrest.

There is no merit in the other points on appeal.

AFFIRMED.

RYDER and SCHOONOVER, JJ., concur.


author: COWART, Judge.

text:
    GENERAL ELECTRIC COMPANY, Appellant, v. ATLANTIC SHORES, INC., etc., et al., Appellees.
    No. 82-1512.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1983.
    Rehearing Denied Sept. 7, 1983.
    Lawrence H. Samaha, Tampa, for appellant.
    Leon G. van Wert of van Wert, Heebner & Kennedy, P.A., Daytona Beach, for appel-lee Atlantic Shores, Inc.
    No appearance for appellee St. Augustine, Inc.
   COWART, Judge.

This case involves the question of election of remedies between a cause of action for a mechanic’s lien and for replevin of goods which may have become fixtures and of a disputed question of fact as to when, if ever, personal property became fixtures.

Appellant (General Electric Company) supplied appliances (ranges, hoods, fans, refrigerators, etc.) to. a contractor to be installed in homes being constructed in a subdivision owned by appellee (landowner). General Electric first filed a claim of lien (§ 713.08, Fla.Stat. (1981)) and notice to owner (§ 713.06(2)(a), Fla.Stat. (1981)). Apparently perceiving a limited balance due on the contract price available for prorata payment of lienors under section 713.06(4), Florida Statutes (1981), General Electric then filed a replevin action. Actual replev-in was stopped by the posting of a forthcoming bond. Both General Electric and the landowner moved for summary judgment. General Electric argued the uncontested facts disclosed that it had a valid security interest in the goods not affixed to the real estate (§ 679.313(2)(a), Fla.Stat. (1981)). The landowner argued that by filing the claim of lien and by giving notice to the owner and giving partial waivers of lien rights and other actions taken, General Electric had made an election of remedies in favor of a mechanic’s lien and against replevin and that the uncontested facts disclosed that General Electric intended for the goods to become fixtures. The trial court entered summary judgment for the landowner and discharged the forthcoming bond. General Electric appeals. We reverse.

The filing of the notices required to perfect a mechanic’s lien under chapter 713 did not constitute an election of remedies. Election need only be made before a judgment is entered in an action on one or the other or both of legally inconsistent remedies. See Erwin v. Scholfield, 416 So.2d 478 (Fla. 5th DCA 1982). General Electric’s remedies are legally inconsistent only because each is based on facts which are necessarily inconsistent. If at the time the writ of replevin was, or should have been, executed, the goods were not so incorporated or affixed to the realty that they had lost their legal character as personal property and had become fixtures, the remedy of replevin was available under section 78.01, Florida Statutes (1981). See also § 713.15, Fla.Stat. (1981). On the other hand, if, at that time, the goods had become fixtures, General Electric was relegated to pursuit of its mechanic’s lien remedy.

The summary judgment below was erroneously based in part on the legal conclusion that by its acts toward perfecting a mechanic’s lien, General Electric had elected its mechanic’s lien remedy. The summary judgment was also based in part on a conclusion that the goods in question had become fixtures because the facts showed that General Electric “knew and intended the appliances to be incorporated into the improvement on the real property of the defendant and that this fact of ‘incorporation’ and ‘use’ of the equipment is factually inconsistent with General Electric Company’s attempt now to replevin these appliances.” The fallacy in this finding is the leap from General Electric’s knowledge and intent as to the future possibility of the appliances becoming fixtures to the conclusion that the appliances had in fact actually become incorporated and affixed to the realty. As distinguished from the intent of one incorporating or affixing personalty to realty, the intent of the manufacturer or supplier of goods may not even be relevant to whether or not the goods ever become fixtures. In any event, such intent does not control whether the goods have or have not in fact become incorporated or affixed to the realty as is necessary for them to become fixtures. As to that question of fact, which involves disputed issues of fact and of inferences that can be drawn from the undisputed facts, the summary judgment should have been denied and that matter reserved for trial. The summary judgment is reversed and the cause remanded for further proceedings including the resolution of the factual and legal issues involved in a judicial determination of the character of the goods in question as being personalty or fixtures at the time of the attempted re-plevin.

REVERSED AND REMANDED.

ORFINGER, C.J., and COBB, J., concur.


text:
    Jeffrey Inman PATTINSON, Appellant, v. Mary STEPHENS, Appellee.
    No. 83-821.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1983.
    Rehearing Denied Sept. 6, 1983.

      Jeffrey Inman Pattinson, pro se.
    No appearance for Mary Stephens.
    Gordon G. Oldham, Jr., State Atty., and James H. Earp, Asst. State Atty., Tavares, appearing specially on behalf of the Circuit Court of the Fifth Judicial Circuit.
   ON MOTION TO DISMISS APPEAL

COWART, Judge.

We dismiss this appeal taken by a former husband from a final order finding appellant’s former wife to not be in criminal contempt of court. As distinguished from civil contempt, which is court coercion applied for the benefit of a civil litigant, the only proper objective of criminal contempt is as punishment to vindicate the authority of a court. Even when an alleged criminal contempt arises out of a civil case it is not a part of the civil cause and a civil litigant has no standing to appeal the judge’s determination that, under the circumstances presented, the dignity and authority of the court does not require a finding of guilt of criminal contempt. While we find no authority on point, see generally South Dade Farms, Inc. v. Peters, 88 So.2d 891 (Fla.1956).

DISMISSED.

DAUKSCH and COBB, JJ., concur.


author: HENDRY, Judge. FERGUSON, Judge

text:
    ALLSTATE INSURANCE COMPANY, as subrogee of Irwin Siegel, Appellant, v. METROPOLITAN DADE COUNTY, Appellee.
    No. 82-478.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 21, 1983.

      Bedford & Whitelock and Jack 'Whitelock, Jr., Miami, for appellant.
    Robert A. Ginsburg, County Atty., and Kenneth B. Drucker and Roy Wood, Asst. County Attys., for appellee.
    Before HENDRY, HUBBART and FERGUSON, JJ.
   HENDRY, Judge.

Allstate Insurance Company appeals from a final summary judgment entered in favor of appellee Metropolitan Dade County on Allstate’s subrogation claim against the county. For reasons more fully developed below, we affirm the trial court’s decision.

The facts need be stated only briefly. On May 3, 1975, an automobile insured by appellant was involved in an accident with a bus owned and operated by appellee. By the terms of the insurance contract, the insured’s claim under his uninsured motorist benefits went to arbitration. On June 6, 1978, an award in the amount of $156,000 was entered in favor of the insured. Appellant paid that award on October 6, 1978. Under the terms of the contract, appellant was then subrogated to the rights of the insured. Appellant did not file a complaint on its subrogation claim against appellee until September 24, 1980. Under section 768.28(12), Florida Statutes (1975), an action against a governmental agency must be brought within four years of the date the statute of limitations begins to run. The only issue on appeal is whether the trial court erred in finding that in a subro-gation claim, the statute of limitations begins to run on the date of the accident and that, therefore, summary judgment was appropriate since appellant did not file its complaint until after the statute of limitations period had already ended.

Appellant repeatedly characterizes this action as a “subrogated claim for indemnity”. By doing so, it attempts to blur the distinction between subrogation and in-damnification, thus merging the two and treating all claims for reimbursement as if they were indemnity claims. These efforts are understandable: appellant seeks to take advantage of the well established principle that in indemnification actions, the statute of limitations does not begin to run until the indemnitee pays on an obligation. Employers’ Fire Insurance Co. v. Continental Insurance Co., 326 So.2d 177 (Fla.1976); Castle Construction Co. v. Huttig Sash & Door Co., 425 So.2d 573 (Fla.2d DCA 1982); Fireman’s Fund Insurance Co. v. Rojas, 409 So.2d 1166 (Fla.3d DCA 1982); Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla.2d DCA 1969). This focus on the common set elements of both doctrines, that both involve parties seeking reimbursement for monies paid which should have been paid by another, cannot be used to shift attention away from the true distinction; that is, subrogation and indemnification are different because the rights involved are different.

In principle, there is a clear distinction between subrogation rights and indemnification rights. Subrogation is designed to afford relief when one is required to pay a legal obligation which ought to be met, either wholly or partially, by another. Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980); American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla.3d DCA 1979), and cases cited therein. Subrogation rights place a party, like appellant in this case, in the legal position of one who has been paid money because of the acts of a third party. Thus, the subrogee “stands in the shoes” of the subrogor and is entitled to all of the rights of its subrogor, Klonis v. Armstrong, 436 So.2d 213 (1983), but also suffers all of the liabilities to which the subrogor would be subject. Holyoke Mutual Insurance Co. v. Concrete Equipment, Inc., 394 So.2d 193 (Fla.3d DCA), rev. denied, 402 So.2d 609 (Fla.1981); Jones v. Bradley, 366 So.2d 1266 (Fla. 4th DCA 1979). In subrogation, the subrogee, now in the same posture as the plaintiff/subrogor, acquires all rights as against the defendant/wrongdoer and is thus able to bring an action against that party to recover the monies paid.

Indemnity, on the other hand, shifts the entire loss from one who, although without active negligence or fault, has been obligated to pay, because of some vicarious, constructive, derivative, or technical liability, to another who should bear the cost because it was the latter’s wrongdoing for which the former is held liable. Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979). Indemnification rights derive from the relationship. between a party like the appellant and the party causing the injury. Given the requisite relationship, and assuming that the party seeking indemnification was not at all responsible for the injury, the injuring party becomes liable to the payor.

Both subrogation and indemnification may be either contractual or equitable in origin. The two doctrines remain distinct when they have their source in contract. Contractual subrogation presupposes a contract between the subrogor and the subrogee; that is, between the injured and the paying parties. Contractual indemnification requires a contract between the paying party and the injuring party. In equity, however, the distinction between subro-gation and indemnification may blur. A court may emphasize either or both of the doctrines “when necessary to bring about equitable adjustment of a claim founded on right and natural justice”. Rebozo v. Royal Indemnity Co., 369 So.2d 644, 646 (Fla.3d DCA), cert. denied, 379 So.2d 209 (Fla.1979) (equitable subrogation). A court recognizing equitable rights may, therefore, refer to subrogation and indemnification interchangeably. See, e.g., Employers’ Fire Insurance Co. v. Continental Insurance Co., 326 So.2d at 180 and n. 5. See also Klonis v. Armstrong, supra (discussion of contractual and equitable subrogation).

The question of when a statute of limitations begins to run depends on whether the subrogation or indemnification right is equitable or contractual in nature. A contractual right to indemnification cannot vest until payment is made. As a result, the statute of limitation does not begin to run until payment is made. See cases cited supra. The same is true with equitable subrogation and indemnification. Employers’ Fire Insurance Co., supra. The court may find that some occurrence has tolled the statute. Government Employees Insurance Co. v. Wheelus, 319 So.2d 181 (Fla. 4th DCA 1975). Contractual subrogation rights, however, by their terms, refer to a transfer or substitution of the rights and liabilities of the injured party to the paying party. Klonis v. Armstrong, supra; Holyoke Mutual Insurance Co., supra; Jones v. Bradley, supra. In addition, subrogation contracts frequently grant the subrogee the means of insuring that the subrogor will protect the subrogee’s rights, even in advance of payment. Not surprisingly, therefore, courts have traditionally held that in contractual subrogation actions, the statute of limitations runs from the date of the injury to the original “rightsholder” and not from the date of payment by the subrogee. These traditional rules are stated in Don Reid Ford, Inc. v. Feldman, 421 So.2d 184 (Fla. 5th DCA 1982):

Where insurers have brought actions for subrogation to recover, for injuries or damage for which the insurer has paid its insured, against a third party whose alleged tortious conduct caused the injuries or damage, such insurers have frequently attempted to have applied to the subrogation actions the same time of accrual as that applied to indemnity actions, but courts generally have adhered to the view that the statute of limitations begins to run on a subrogated insurer’s action against a third-party tortfeasor at the same time that the statute of limitations would begin to run on an action by the insured, or his personal representative in the event of the death of the insured, against the third-party tortfeasor. A rationale offered in support of this view has been that a subrogated insurer stands in the shoes of its insured, taking no rights other than those that the insured had, and at the same time being subject to all defenses which the third-party tortfeasor might assert against the insured.

Id. at 185-186. In the above quoted case, a subrogated action for damages for legal malpractice, the court held that the statute of limitations began to run on the date the default judgment was entered against Don Reid Ford, and not on the date the insurance company paid it for the damages suffered by the attorney’s malpractice.

This case involves a straightforward contractual subrogation claim. The insured made a claim for uninsured motorist benefits, after a lengthy period of time appellant paid those benefits, and became subro-gated to the rights of its insured to file suit against the county for recovery of the monies it paid its insured. In addition, the insurance policy itself also included terms designed to insure that the rights of the insurer would not be meaningless by the time of any payment; that is, that appellant could require its insured to file a lawsuit against the county in order to preserve his right to damages for the injuries suffered:

4. Assistance and Cooperation of the Insured. After notice of claim under this coverage, Allstate may require the insured to take such action as may be necessary or appropriate to preserve his right to recover damages from any person or organization alleged to be legally responsible for the bodily injury....

Appellant relies heavily on Fireman’s Fund Insurance Co. v. Rojas, 409 So.2d 1166 (Fla.3d DCA 1982). At first appearance, that case would seem to control the disposition of the case sub judice. A close reading of the record in Fireman’s Fund, however, reveals that the claim, from the language of the complaint to the briefs on appeal, was always treated as being one for indemnification because, as Fireman’s Fund argued in its appellate briefs, the provisions of the Insurance Code then extant required that its claim be for indemnification and not for subrogation. Secondly, Fireman’s Fund paid its insured promptly without waiting for the outcome of the lengthy litigation between Mrs. Rojas and her insurance carrier. Additionally, Fireman’s Fund filed its complaint, albeit on the very last day, within the four year limitation period which began to run on the date of the accident. Finally, there is nothing in the record which suggests that there was a provision in the policy by which Fireman’s Fund could require its insured to file suit against Mrs. Rojas in order to protect Fireman’s Fund’s interests.

In the case sub judiee, appellant filed suit against appellee asserting its right to reimbursement as subrogee of its insured. Only on appeal has appellant tried to characterize its claim as being one for indemnification. Secondly, appellant could have required its insured to file suit against appel-lee in order to protect appellant’s interests. Appellant did not do this, however, nor did it file suit in its own name until well after the statute of limitations had run. Finally, it took over three years for appellant’s insured to obtain an arbitration award in its favor, and an additional four months after that before appellant paid the judgment.

The latter two points warrant further discussion. Appellant had two courses of conduct it could have chosen: to require the insured to file suit against appellee in order to preserve its subrogation rights, or to pay the insured and then file suit, either in its own name or for the use and benefit of its insured, Holyoke Mutual Insurance v. Concrete Equipment, supra, since the right to subrogation does not arise until the subro-gee first pays the claim. Quinones v. Florida Farm Bureau Mutual Insurance Co., 366 So.2d 854 (Fla.3d DCA 1979); Indiana Insurance Co. v. Collins, 359 So.2d 916 (Fla.3d DCA 1978). Appellant chose to wait and to allow its obligation to pay to be determined by arbitration. Eleven months remained between the date of the arbitration decision and the date the statute of limitations ran out. That is, eleven months remained between the date appellant’s liability became fixed and the date the statute of limitations terminated, and appellant did nothing to protect itself, or to preserve its rights as against appellee. In such a case, even if the doctrine of statute of limitations did not apply, the equitable doctrine of laches would.

By adopting the position that the statute of limitations begins to run on the date the injury occurs, we support two important policy considerations: One, this position encourages the paying party to determine promptly what its obligations are and to meet those obligations quickly so that it may take advantage of its right to subrogation before the statute of limitations ends. This benefits the injured party. Second, it fixes a maximum time period in which the tortfeasor could expect to be sued by either the injured party directly or by his insurance company.

For the above stated reasons, we hold that in contractual subrogation, the statute of limitations begins to run on the date the injury occurs and not on the date the subro-gee makes its payment to the subrogor.

Affirmed.

FERGUSON, Judge

(specially concurring).

The majority opinion is an excellent discussion of subrogation and indemnification and I agree to affirm. I write only to express disapproval of the attempt to distinguish and salvage our earlier opinion in Fireman’s Fund Insurance Co. v. Rojas, 409 So.2d 1166 (Fla.3d DCA 1982). Rojas blurred the differences between indemnification and subrogation to an incorrect conclusion and should be revisited solely for the purpose of giving it a decent burial. That was a classic contractual subrogation case. The accident occurred on July 16, 1975 and the complaint for subrogation was not filed until July 17,1979 — clearly outside the four year statute of limitations. The trial court’s judgment for Rojas, entered on the pleadings, should have been affirmed.

      . Fidelity & Casualty Co. of New York v. Fonseca, 358 So.2d 569 (Fla.3d DCA), cert. denied, 365 So.2d 711 (Fla.1978).

      . It must be emphasized that we are not concerned with questions of semantics. Fireman’s Fund dealt with a situation where what looked to be subrogation had a colorable statutory basis for being treated as indemnification. Again, it is the nature of the rights asserted which creates the difference between subrogation and indemnification. Courts will focus on those rights rather than on whatever labels the parties choose to employ.


text:
    Clyde BIRD, Appellant, v. Gladys BIRD, Appellee.
    No. 82-2133.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 21, 1983.
    Maurice Jay Kutner, Miami, for appellant.
    Philip J. Coniglio and Jerry Larotonda, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

The subject of this appeal is the propriety of the trial court’s final order determining custody, support and property distribution entered in proceedings to dissolve the parties’ five-year marriage. It appears that the trial court failed to reserve jurisdiction to determine property rights, Covin v. Covin, 403 So.2d 490 (Fla. 3d DCA 1981); Mason v. Mason, 371 So.2d 226 (Fla. 2d DCA 1979); however, the wife maintains that the trial court’s order is supported by an oral property settlement agreement made by the parties in open court. Because the record fails to reflect the existence of such an agreement through written stipulation, testimonial transcript or otherwise, the appellate court cannot consider it as a basis for review. Arnold v. Arnold, 292 So.2d 384 (Fla. 3d DCA 1974); Industrial Supplies, Inc. v. Heredia, 247 So.2d 510 (Fla. 3d DCA 1971). Having carefully considered the pleadings, transcripts and other documents contained in the record, we find that the lack of competent and substantial evidence to support the trial court’s order constitutes reversible error. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Baker v. Baker, 394 So.2d 465 (Fla. 4th DCA 1981); Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA), cert. denied, 360 So.2d 1250 (Fla.1978). Finding that the remaining points lack merit, we reverse as to that portion of the order relating to the property located in Ecuador.

Reversed and remanded for further proceedings consistent with this opinion.


author: PER CURIAM.

text:
    Rafael PADRON, Appellant, v. H.W.G. LEASING, INC., d/b/a Merlin & Merlin Truck Sales & Leasing, and Liberty Mutual Insurance Company, Appellees.
    Nos. 82-2166, 83-186.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 13, 1983.
    Major & Logan and Lawrence Major, Miami, for appellant.
    Michael A. Currea, Hialeah, Daniels & Hicks and Patrice A. Talisman, Miami, Richard E. Hardwick, Coral Gables, for ap-pellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

It is undisputed that neither Liberty Mutual nor its agent complied with section 627.727(1), Florida Statutes (1979), in that Padron, a long-term lessee, was never given the opportunity to reject uninsured motorist coverage. Because appellees failed to satisfy their statutory duty, we reverse the trial court’s Summary Final Judgment for Liberty Mutual and remand with instructions to enter summary judgment for Padron. Liberty Mutual Insurance Co. v. Dwyer, 421 So.2d 587 (Fla. 3d DCA 1982). Although we agree that if Liberty Mutual had failed to insure Padrón H.W.G. might be liable for breach of contract to obtain coverage, our decision establishing liability on the part of Liberty Mutual renders that issue moot. Reversed and remanded with directions.


author: NESBITT, Judge.

text:
    HARDING REALTY, INC., a Florida corporation, Appellant, v. TURNBERRY TOWERS CORPORATION, a Florida corporation, Appellee.
    No. 82-2410.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 21, 1988.
    Feldman, Abramson, Smith, Magidson & Levy and Louis A. Supraski, Miami, Claudia B. Greenberg, Coral Gables, for appellant.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel S. Perwin, Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

Harding Realty, Inc. (Harding) appeals a final summary judgment entered in favor of Tumberry Towers Corporation (Turnber-ry) in Harding’s suit for brokerage commission. Based on the undisputed facts and applicable law, we affirm.

Pursuant to written brokerage agreements, Harding procured two corporations as prospective purchasers for two units at Turnberry’s condominium development. The corporations executed binding contracts of purchase and sale with Tumberry and advanced earnest money deposits, but never closed. As a result of the purchaser defaults and in accordance with provisions in the purchase and sale agreements, Turn-berry retained the full amount of both deposits despite Harding’s demand for a portion of the same. Harding’s suit followed.

The operative language of the brokerage agreements provided “that Harding Realty, Inc. shall be entitled to a commission of 3%, at time of closing, on the sale of [the units] to ... clients brought by [Harding’s] salesmen.” We construe this language as fixing an arrangement whereby Harding was employed to effect a sale, rather than simply to obtain a ready, willing, and able buyer. See MacGregor v. Hosack, 58 So.2d 513, 515 (Fla.1952); Hart v. Pierce, 98 Fla. 1087, 125 So. 243, 246 (1929); Malever v. Livingston, 95 Fla. 272, 116 So. 15, 17 (1928). The execution of a contract of purchase and sale does not, of itself, constitute a sale. Lazer, N.V. v. Hollo, 432 So.2d 102 (Fla. 3d DCA 1983). However, when a broker is employed “to effect a sale,” he is entitled to payment of his commission either upon completing the sale or upon presenting the seller with a binding, enforceable, written contract of purchase and sale, MacGregor v. Hosack, supra; Hart v. Pierce, supra; Malever v. Livingston, supra, and it is of no moment under the latter circumstance that the purchaser procured by the broker defaults, Acheson v. Smiths, Inc., 110 Fla. 240, 148 So. 576 (1933). Of like insignificance is the fact that, as here, the purchase and sale contract may not be specifically enforceable in equity because its liquidated damages clause (forfeiture of deposit upon default) provides an adequate remedy at law. Acheson v. Smiths, Inc., supra.

We recognize though that the general rule stated above with regard to entitlement to a commission under “effect-a-sale” brokerage contracts may be varied by express terminology rendering payment subject to some condition. See 12 Am. Jur.2d Brokers § 195 (1964); cf. Hanover Realty Corp. v. Codomo, 95 So.2d 420 (Fla.1957) (broker’s express agreement that execution of leases would be condition precedent to his right to commission prevented application of general rule that broker is entitled to commission if transaction is not consummated solely due to arbitrary refusal on the part of his principal); Warter v. Bancroft Hotel Associates, 285 So.2d 676 (Fla. 3d DCA 1973) (where real estate broker’s letters to president of hotel corporation and corporation’s attorney stated that commission on sale of hotel was expected only if transaction was fully consummated, broker’s production of customer ready, willing, and able to purchase hotel at fixed and agreed price did not entitle broker to commission even though corporation backed out merely to obtain a better price). Turnberry argues that the words “entitled to a commission ... at time of closing” present such an express condition precedent. We agree.

Although there are some cases to the contrary, e.g., Pearson v. Crummer, 97 Cal.App. 707, 276 P. 153 (1929); Collopy v. Stevenson, 125 Kan. 703, 265 P. 1098 (1928); Hatch v. Dayton, 130 N.J.L. 425, 33 A.2d 350 (1943), the great weight of authority holds that contractual provisions for payment of a brokerage commission at the time of sale, closing, or settlement render such occurrence a condition precedent to the obligation of payment. Hamrick v. Cooper River Lumber Co., 223 S.C. 119, 74 S.E.2d 575 (1953) (and cases cited therein); O’Boyle v. Dubose-Killeen Properties, Inc., 430 S.W.2d 273 (Tex.Civ.App.1968) (and cases cited therein); see also Mark Realty, Inc. v. Rogness, 418 So.2d 373, 376 (Fla. 5th DCA 1982) (dicta); 3A A. Corbin, Corbin on Contracts § 639 (1951); Annot., 74 A.L.R.2d 437 (1960). This principle applies a fortiori in the present case where the commission agreement, drafted by the broker, expresses that entitlement to the commission, as opposed to just payment of the commission, is to occur at closing. Since it is uncontro-verted that the subject closings never took place, Harding’s recovery is precluded as a matter of law by the terms of its express contract with Turnberry.

Harding’s complaint also sought recovery on the theory of quantum meruit. However, the law will not imply a contract where a valid express contract exists. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (Fla.1928); Solutec Corp. v. Young & Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971); see Bloom v. Frese, 123 So.2d 47 (Fla. 3d DCA 1960). Consequently, the trial court properly entered summary final judgment as to Harding’s entire action.

Affirmed.


text:
    TOLE ELECTRIC OF FLORIDA, a Florida corporation, Appellant, v. Mel HARRIS and Francine Harris, his wife, and Lakeside Villas at Bonaventure, Inc., a Florida corporation, Appellee.
    No. 83-281.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 21, 1983.
    Richard W. Wasserman, Miami Beach, for appellant.
    Daniel Mones, and Frank Marks, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

There is no rule which prevents a plaintiff from taking a voluntary dismissal without prejudice pursuant to Florida Rule of Civil Procedure 1.420(a) in an action on a statutory lien. The fact that a contractor’s affidavit was not filed in the voluntarily dismissed action is not “jurisdictionally fatal” to the filing of a new action on the same claim.

Reversed and remanded.


text:
    The STATE of Florida, Petitioner, v. Mark JACKSON, Respondent.
    No. 83-674.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 21, 1983.

      Jim Smith, Atty. Gen., and Penny Her-shoff Brill, Asst. Atty. Gen., for petitioner.
    Smoley & Grate and Joseph H. Weil, Miami, for respondent.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

The respondent is charged with armed robbery and possession of a firearm during the commission of a felony.

During preparation for a second trial of respondent (a prior trial had resulted in a conviction and reversal on appeal), counsel for respondent served Loula Kyles with a subpoena for deposition. She failed to appear at the designated time, whereupon the trial court ordered the state to produce the witness. The state failed to produce the witness as ordered. Several other notices to appear were not responded to by Kyles. Respondent moved to exclude the witness on the basis of her numerous failures to appear. The trial court granted the respondent’s motion to exclude the witness by written order.

The state has petitioned for common law certiorari to quash the order granting respondent’s motion to exclude. We find merit in the state’s petition and quash the order under review.

It is not the responsibility of the state to produce a witness subpoenaed by a defendant for discovery purposes; to order the state to do so, or to dismiss a criminal case for failure of the state to do so, constitutes a departure from the essential requirements of law. State v. Adderly, 411 So.2d 981 (Fla. 3d DCA 1982); Knight v. State, 373 So.2d 52 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 761 (Fla.1980); State ex rel. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977); State v. Roig, 305 So.2d 836 (Fla. 3d DCA 1974).

The petition for certiorari is granted and the order under review is quashed. It is so ordered.


text:
    Guillermo Isaza BOTERO and Arturo Lopez Londono, Appellants, v. DELTONA’S MACKLE-BUILT CONSTRUCTION COMPANY, INC., a Florida corporation, Appellee.
    No. 83-942.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 21, 1983.
    Fénster & Faerber and Jesse S. Faerber, Plantation, for appellants.
    Joseph Mancilla, Jr., Miami, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Business Aide Computers, Inc. v. Central Florida Mack Trucks, Inc., 432 So.2d 681 (Fla. 5th DCA 1983).


author: ORFINGER, Chief Judge. SHARP, Judge,

text:
    Marcella Sharon RITZ, Individually, by and through her legal guardians, Joseph L. Ritz and Margaret E. Ritz, Appellant, v. FLORIDA PATIENT’S COMPENSATION FUND, Florida Physicians Insurance Reciprocal, I. Basil Keller, M.D., and Keller & Sarnowski, M.D., P.A., d/b/a Melbourne Neurologic, Appellees.
    No. 81-1180.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Rehearing Denied Sept. 2, 1983.

      Albert Yurko, Orlando, for appellant.
    William B. Wilson of Maguire, Voorhis & Wells, P.A., Orlando, for appellees Florida Physicians Ins., Keller, M.D., Keller & Sar-nowski, and Melbourne Neurologic.
    James F. Page, Jr., of Gray, Harris & Robinson, P.A., Orlando, for appellee Florida Patient’s Compensation Fund.
   ORFINGER, Chief Judge.

Marcella Ritz, a mentally retarded woman, suing by and through her parents as legal guardians, appeals from a final judgment in favor of defendants in a malpractice case. Dr. Keller performed brain surgery known as a stereotactic amygdalo-tomy on Marcella. This is an operation in which electrodes or probes are inserted under x-ray observation through holes drilled in the skull, for the specific purpose of locating and destroying certain brain tissue which controls affected areas of the body. Marcella suffered paresis (slight paralysis or muscle weakness) and loss of voice volume after the surgery. She now has difficulty walking unassisted and can only whisper rather than talk. Her suit contended that the surgery was performed without consent, that any consent given was not informed consent, and that the operation had been negligently performed.

The jury determined the negligence and malpractice issues against Marcella. Although there was contrary evidence presented, we find no basis to overturn its verdict. After Marcella presented her case, the trial court directed a verdict against her on the issues of consent and informed consent, and Marcella contends that this was error warranting reversal.

In reviewing the entry of a directed verdict, we must consider the evidence and all allowable inferences in a light most favorable to the non-moving party. This is the test at the trial level, Levine v. Frank, 311 So.2d 708 (Fla. 3d DCA 1975), as well as the standard of review at the appellate level. McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA 1981). If, in applying this test, no view of the evidence could sustain a verdict for the party moved against, then the directed verdict was properly entered. Reams v. Vaughn, No. 82-803, 435 So.2d 879 (Fla.1983) [8 FLW 1803]; Tesher & Tesher, P.A. v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). Here, the father signed a consent to surgery. It is contended first that this is insufficient to constitute a valid consent because Marcella is an adult, and secondly, that it was not an informed consent. We will discuss those issues separately.

I. CONSENT BY PARENT

Marcella Ritz was thirty-two years old when this surgery was performed. She has been retarded both mentally and motor-wise since birth. Her condition worsened as she grew older and she began to show early signs of a severe form of epilepsy, experiencing both petit mal and grand mal seizures. She was hospitalized on several occasions in an effort to control these seizures with medication. Her parents gave the various consents to treatment. When she reached her mid-twenties in the early 1970’s, her condition deteriorated even more. Her seizures became more frequent and her behavior began to be characterized by violence and rages. She came under Dr. Keller’s care in 1974, and he attempted to treat her condition conservatively.

There was no conflict about Marcella’s inability to understand or give her consent to this surgery. She had an I.Q. between 25 and 30. Her parents had cared for her all her life. They took her to various hospitals and doctors for treatment and signed consent forms for other procedures. They were also the parties who brought Marcella to Dr. Keller for treatment. Marcella’s father signed the consent to surgery here.

Appellant argues that consent from Marcella should have been obtained prior to surgery and that her father’s consent was of no effect because she was an adult and her father had not then been appointed her legal guardian. There seems to be no controlling precedent on this issue in Florida. The general rule in other jurisdictions is that a parent or next of kin may give an effective consent to medical treatment for a person who is not competent, without the necessity of being appointed a legal guardian. 70 C.J.S. Physicians & Surgeons § 48 (1951); Annot., 25 A.L.R.3d 1439 (1969).

In Farber v. Olkon, 40 Cal.2d 503, 254 P.2d 520 (1953), the California Supreme Court adopted the rule that when an adult child is incompetent and has no legally appointed guardian, the right to consent to medical treatment resides in the parent who has the legal responsibility to maintain such child. In Farber, a father had given his consent to electric shock treatments for his adult incompetent son. Like Marcella, the son became incompetent during his minority and his parents sought treatment for him in many homes, hospitals and sanitariums, and they continued to support him. He was thirty-one years old when he received the treatment complained about in his suit.

Florida courts have recognized the rule that a parent has a continuing legal duty to support an adult incompetent or otherwise dependent child. See Perla v. Perla, 58 So.2d 689 (Fla.1952); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978). Section 743.07(2), Florida Statutes (1981), provides that a court may require parental support for a dependent child after it attains the age of majority. Support obligations for adult children mentally or physically disabled have been imposed on parents. See Fagan v. Fagan, 381 So.2d 278 (Fla. 5th DCA 1980); Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963).

We agree with Farber v. Olkon, and hold that where an adult child is incompetent and has no legally appointed guardian, the right to consent to medical or surgical treatment resides in the parent who has the legal responsibility to maintain and support such child, not only in emergency situations, but where, as here, the treatment is deemed necessary to correct some ailment or disability. Therefore, the consent executed by Marcella’s father was not invalid merely because he was not then officially her legal guardian.

II. INFORMED CONSENT

After Marcella came under Dr. Keller’s care, the doctor recommended that she be sent to Sunland Center, hoping that the controlled environment and qualified personnel there might be of help. In the more than one-year period she was at Sunland, Marcie’s condition worsened; her seizures became more severe and her behavior more uncontrollable. She was described as violent and psychotic. Stereotactic surgery as a potential solution to her problems had been discussed with Marcie’s parents from 1974 until 1977. Dr. Keller was reluctant to consider such surgery until he had exhausted other modes of treatment. Both parents testified to Dr. Keller’s reluctance to do the surgery until he could determine if medication could control the situation. There is no dispute that the surgery was recommended only after a course of conservative treatment over many years had proved unsuccessful. Neither is there any dispute that the surgery was needed or the proper procedure. Plaintiffs’ expert witnesses testified that Marcella was a proper candidate for an amygdalotomy.

The sole point on which appellant urges us to find a jury issue on the question of informed consent is the alleged failure of Dr. Keller to tell the parents that death or paralysis was a potential risk of this surgery. Appellant urges that in the absence of such disclosure by the doctor, the patient or other person giving the consent is not fully informed of the risks and is thus incapable of making an informed decision. While we recognize that informed consent is necessary, we disagree for several reasons that a jury issue was made on that point.

The plaintiff offered no expert evidence as to the nature and extent of the material risks involved in the surgery, nor any expert testimony as to the disclosures of risk and complications which a reasonable surgeon would make under the same or similar circumstances. The operation performed here is neither rare nor unusual. The plaintiffs expert, Dr. Brown, had himself performed more than 150 amygdalotomies, and he referred to other surgeons who had performed many more. The surgery on plaintiff was performed in 1977, and Dr. Brown testified that surgeons had been performing stereotactic surgery for about 28-30 years. He testified that the amygdalotomy was a well-recognized surgical procedure; that the surgery ordinarily produced few side effects, and that paresis and loss of voice were not usual or customary results of this surgery.

The characterization in the dissent of Dr. Keller as “inexperienced” is unfair in the light of the record. He is a trained, experienced neurosurgeon, certified as qualified by the medical specialty board in his field. He has had extensive training in stereotactic surgery, has taught the procedure to other doctors, and had performed more than 80 such procedures before he operated on Marcie. He had not operated on the particular area of the brain, the amygdala, because he never had a patient who needed this specific relief, but had performed other operations in “deep brain” areas using the same equipment and the same surgical techniques as were used here.

In order to submit to a jury the issue of whether and to what extent specific risks of surgery should be disclosed to a patient in securing the patient’s informed consent to the procedure, evidence is required as to the nature and extent of the risks and of the standard prevailing in the medical community, i.e., whether a reasonable medical practitioner in the community would make such disclosure under the same or similar circumstances. Ditlow v. Kaplan, 181 So.2d 226 (Fla. 3d DCA 1966). Such evidence was available to plaintiff through her expert who presented evidence on the standard of care with respect to the negligence or malpractice issue and who testified that this standard of care was the same wherever the surgery was performed. He was not asked, however, what the standard was with regard to disclosures of risks so that an informed consent could be given.

Mr. Ritz signed a consent specifically authorizing the performance of a bilateral am-ygdalotomy, not just a general consent to do anything thought necessary. The form he signed, among other things, says:

2. The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications have been fully explained to me. I acknowledge that no guarantee or assurance has been made to me [sic] the results that may be obtained.
* * * * * *
I CERTIFY THAT I HAVE READ AND FULLY UNDERSTAND THE ABOVE CONSENT TO OPERATE, THAT THE EXPLANATIONS THEREIN REFERRED TO WERE MADE AND THAT ALL BLANKS OR STATEMENTS REQUIRING INSERTION OR COMPLETION WERE FILLED IN AND IN APPLICABLE [SIC] PARAGRAPHS, IF ANY, WERE STRICKEN BEFORE I SIGNED.

Both parents had a lifetime of experience with Marcie’s problems. They were curious and knowledgeable about her treatment. The parents knew that the surgery involved inserting a probe through the skull to create a brain lesion, i.e., to destroy certain brain tissue which controlled the area of the brain responsible for the behavioral problems their daughter had. Mrs. Ritz had been for years closely associated and quite active in an organization of parents with retarded children. Under these circumstances, and considering the minimal problems customarily incurred as was testified to by the experts, how much of the specific risks or possible results should be discussed with the consenting parent in order that his consent be “informed”? Nothing in the record answers that question. The jury should not be permitted to speculate on this question any more than should the trial judge or this court. What are the accepted risks, what are foreseeable risks, what are remote and speculative risks require, in our opinion, expert testimony as a basis for determining the extent of disclosures necessary to constitute consent as “informed.” The patient here did not die, so any failure to disclose that risk is academic only. The same argument can be made with regard to “paralysis,” because the record shows that Marcie suffers from a weakness on the left side, not a complete inability to use that side or a complete absence of motion in it.

It appears that the rule of law in Florida on proof of informed consent is still that expressed in Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DCA 1977), as follows:

The duty of the physician to inform and the extent of the information which may be required varies in each case depending upon the particular circumstances.... The factors involved in making this determination are often complicated and technical, and in any event involve considerations beyond the expertise of the ordinary layman who is uneducated in medicine. Consequently, we have no hesitation in following the lead of our sister court in Ditlow v. Kaplan, 181 So.2d 226 (Fla. 3d DCA 1966), by holding that expert testimony is required in informed consent cases to establish whether a reasonable medical practitioner in the community would make the pertinent disclosures under the same or similar circumstances. Our ruling accords with those of most courts which have considered this issue. Annot., 52 A.L.R.3d 1084 (1973).

Id. at 907. This is still the view in most jurisdictions. Anno. 88 ALR 3d 1008 (1978). The reference in Berrios to the extent of a doctor’s duty to advise his patient of the material risks involved, described in ZeBarth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1 (1972), is worthy of repetition. It was said there that:

The duty of a medical doctor to inform his patient of the risks of harm reasonably to be expected from a proposed course of treatment does not place upon the physician a duty to elucidate upon all of the possible risks, but only those of a serious nature. Nor does it contemplate that the patient or those in whose charge he may be are completely ignorant of medical matters. A patient is obliged to exercise the intelligence and act on the knowledge which an ordinary person would bring to the doctors’ office. The law does not contemplate that a doctor need conduct a short course in anatomy, medicine, surgery, and therapeutics nor that he do anything which in reasonable standards for practice of medicine in the community might be inimical to the patient’s best interests. The doctrine of informed consent does not require the doctor to risk frightening the patient out of a course of treatment which sound medical judgment dictates the patient should undertake, nor does the rule assume that the patient possesses less knowledge of medical matters than a person of ordinary understanding could reasonably be expected to have or by law should be charged with having. Nor should the rule declaring a duty to inform be so stated or applied that a physician, in the interest of protecting himself from an overburden of law suits and the attendant costs upon his time and purse, will always follow the most conservative therapy — which, while of doubtful benefit to the patient exposes the patient to no affirmative medical hazards and the doctor to no risks of litigation. Thus, the information required of the doctor by the general rule is that information which a reasonably prudent physician or medical specialist of that medical community should or would know to be essential to enable a patient of ordinary understanding to intelligently decide whether to incur the risk by accepting the proposed treatment or avoid that risk by foregoing it. (emphasis supplied).

Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981), is distinguishable. There, on the issue of consent, the record was clear that the patient, with a language barrier, had torn up one consent, and testified that he did not know that the paper he later signed was another consent form. An issue of fact was found on whether the signature had been fraudulently obtained, so that, in law, no consent had been given. No such issue is made here. Similarly, Morganstine v. Rosomoff, 407 So.2d 941 (Fla. 3d DCA 1981), is distinguishable because it was contended there that the consent was fraudulently obtained, thus bringing into play the provision of section 768.46(4)(a), Fla.Stat. (1981). Here, plaintiffs did not allege nor attempt to prove any fraudulent misrepresentations. Cf. Meretsky v. Ellenby, 370 So.2d 1222 (Fla. 3d DCA 1979), [where the evidence revealed no consent at all to operate on the tip of plaintiff’s nose, and the court distinguished between issues of no consent and cases where the issue was informed consent].

The consent form signed by Marcella’s father, in addition to approving the specific surgery involved, states that the nature and purpose of the operation, possible alternative methods of treatment, the risks involved and the possibility of complications have been fully explained. The consent thus appears to comply with the requirements of section 768.46, Florida Statutes (1981). We find nothing in the statute that changes the rule of law expressed in Ditlow v. Kaplan or Thomas v. Berrios. The statute appears to codify that rule of law. If the plaintiff relies on the absence of informed consent, it is incumbent on plaintiff to provide evidence on the nature of the risks and the reasonable medical standard of disclosure. Without such evidence the jury can only speculate on the existence and extent of possible risks, on alternative methods of treatment and on possible complications.

It is not sufficient to say, with the 20/20 vision of hindsight, that had the consenting person known that a result which does occur could have occurred, no consent would have been given. That is not the test even in those few states which do not require expert testimony on the nature of the risks and the medical standard of disclosure. We would expect no less of a plaintiff alleging malpractice, than to say that if he had known what was going to happen, he would not have consented.

The cases cited by the dissent as support for a rule that requires the physician to prove the community standard for disclosure do not appear to agree on the precise nature of the standard. The Colorado cases cited in the dissent, as exemplified by Hamilton v. Hardy, 37 Colo.App. 375, 549 P.2d 1099 (Ct.App.1976), follow a rule that the plaintiff need only show that he was uninformed as to material risks inherent in the procedure and when he shows that he was uninformed due to a failure of disclosure, the physician must go forward with the evidence establishing that his failure to disclose conformed with community standards. This rule, it seems to us, leaves much to the imagination of the plaintiff and the jury. The opinions seem to imply that the need to disclose applies only to relevant and material risks, yet there is no indication as to how and by whom the evidence is presented.

In Natanson v. Kline, 187 Kan. 186, 354 P.2d 670 (1960), a case relied on by the Colorado courts, the Supreme Court of Kansas held that when facts concerning the actual disclosures to the patient are ascertained, then expert medical testimony of medical witnesses is required to establish whether such disclosures are in accordance with those which a reasonable medical practitioner would make under the same or similar circumstances. Here, too, nothing is said in the opinion about who shoulders the burden, but the opinion emphasizes the rule, correctly we believe, that the burden of proof rests throughout the trial upon the patient who seeks to recover for her injury.

In Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (Ct.App.1974), the court held that it was the plaintiffs burden to prove, not only the non-disclosure, but the fact that the given risk not disclosed was relevant and material. Thus, it would appear that expert medical testimony is required, except perhaps in those situations where the material risks are so obvious and well known that lay testimony is appropriate. Miller emphasizes that the plaintiff must prove, not that he would not have consented had a material disclosure been made, but that a reasonably prudent person would not have consented to the procedure had the material risks been disclosed.

We believe the better rule to be that expressed in Ditlow and Thomas, and adopted here. Similarly, if plaintiff relies on fraud as the means of obtaining the signed consent, that should be pleaded and put in issue and here too, the plaintiff has the initial burden of demonstrating that fraud or misrepresentation produced the signature. There is neither allegation nor proof of fraud here.

The judgment is AFFIRMED.

COWART, J., concurs.

SHARP, J., dissents in part, concurs in part, with opinion.

SHARP, Judge,

dissenting in part; concurring in part.

I concur with the majority opinion on Point I. However, as to Point II, I think there were fact questions which the jury should have been allowed to determine. Where there are questions of fact, directing a verdict is error because it deprives a party of his constitutional right to trial by a jury of his peers. Stenback v. Racing Associates, Inc., 394 So.2d 1128 (Fla. 4th DCA 1981).

The record here shows there was an issue concerning whether or not Dr. Keller materially misrepresented the gravity of the surgery to be performed on Marcella. Mr. and Mrs. Ritz both testified Dr. Keller failed to tell them that this kind of operation carried the risks of death and paralysis. Mrs. Ritz testified:

[W]e were assured that there was no problem with the surgery — with the operation because it" was his specialty, and it was the answer to her problem; and he told us that it would be a very short time in the operating room and a very short stay in the hospital.
* * * * * *
He said that the problem [sic] was designed to relieve her of her problem, that’s what the surgery was for, and if it didn’t relieve her of the problem, she still wouldn’t have any bad effects from the surgery.

Mrs. Ritz further testified;

Q. Eft's now your feeling he answered you untruthfully, that indeed—
A. That’s right.
Q. [H]e knew there were and didn’t tell you?
A. That’s right.

Dr. Keller assured the Ritzes that he had done many kinds of stereotactic operations, but he did not tell them he had never done an amygdalotomy.

Mr. Ritz testified that had he known of these risks, and Dr. Keller’s inexperience, he would not have consented to the surgery. Mr. Ritz testified:

Q. Did he ever tell you that she could get paralyzed or die as a result of this surgery?
A. No, he never—
Q. Had he told you that she could have got paralyzed or died as a result of this surgery, would you have had the surgery for Marcie?
A. Nó, I wouldn’t have.
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Q. Did Dr. Keller ever tell you that he had never done this surgery before September one, ’77?
A. No.
Q. Had he told you that he had never done an amygdalotomy prior to September one, ’77, would you have had him do the amygdalotomy on Marcie on September one, ’77?
A. I certainly would not.

Dr. Keller was called as a witness by the plaintiff, and he testified that he had fully explained to Mr. and Mrs. Ritz the seriousness of the surgery, its potential risks, and the methodology which he planned to employ. He testified that an amygdalotomy is an extremely rare operation. He did not know whether it had ever before been performed in Florida. Only a few medical centers in the United States were then doing this operation (Boston and Indiana). He said he thought he 'or another doctor doing an amygdalotomy should warn a patient about the danger of paralysis or even death occurring as a possible consequence of this kind of surgery.

Dr. Charles Carter is the former director of Sunland in Orlando, an institution for the severely retarded. He testified that an amygdalotomy is dangerous brain surgery and that it can result in paralysis, death, and infection.

As the majority opinion points out, Marcella produced no expert medical witnesses to testify that, among members with similar training and experience in the same or similar medical community, the accepted standard of medical practice in Dr. Keller’s profession is to warn patients of the risks of paralysis and death prior to obtaining a consent to do any amygdalotomy. For this reason only, the trial court granted the appellees’ motion for a directed verdict on the issue of consent. The court relied on Thomas v. Berrios, 348 So.2d 905 (Fla. 2d DCA 1977), and Ditlow v. Kaplan, 181 So.2d 226 (Fla. 3d DCA 1965), which hold that, in order to avoid a summary judgment or a directed verdict on the issue of informed consent, the plaintiff must offer evidence of the standard of practice prevailing in the medical community regarding informing patients of risks prior to surgery. This is a rule which applies only in medical malpractice cases, not in suits against other professionals, and it may have the effect of depriving a plaintiff of a right to a jury trial. Therefore, if this rule exists in Florida, it should be construed narrowly, not sweepingly as the majority proposes.

There is no reason to apply this rule to a case involving misrepresentations. I submit that under these circumstances Florida cases do not require expert medical testimony for the plaintiff to sustain his case. See Meretsky v. Ellenby, 370 So.2d 1222 (Fla. 3d DCA 1979). Indeed, such testimony would be superfluous since the point is not that the physician failed to fully disclose the risks of surgery, but that he misrepresented them. Mr. and Mrs. Ritz’s testimony, which was disputed by Dr. Keller, supported such a theory. Therefore, this issue should have been resolved by the jury.

This case is similar to Morganstine v. Rosomoff, 407 So.2d 941 (Fla. 3d DCA 1981). In Morganstine, the plaintiff testified the doctor told him the operation was simple and that there would be no complications. However, he suffered permanent weakness after a spinal fusion operation. In this case, the Ritzes testified Dr. Keller said it was a simple operation, and he failed to disclose the major risks he well knew: death and paralysis.

On the issue of informed consent, in the sense that the Ritzes were not as fully informed of the risks of this surgery as they should have been, I submit that it is no longer clear that Ditlow and Thomas are controlling on the necessity for a plaintiff to produce a medical expert witness on the standard of practice in the medical community. Both of those cases involved pre-1975 causes of action. Since then, the Legislature adopted the Florida Medical Consent Law, which provides in part:

(3) No recovery shall be allowed in any court in this state against any physician ... in an action brought for treating, examining, or operating on a patient without his informed consent when:
(a)(1) The action of the physician ... in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community; and
(2) A reasonable individual, from the information provided by the physician ... under the circumstances, would have a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures, which are recognized among other physicians ... in the same or similar community who perform similar treatments or procedures; or
(b) The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure had he been advised by the physician ... in accordance with the provisions of paragraph (a).
(4)(a) A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, be conclusively presumed to be a valid consent. This presumption may be rebutted if there was a fraudulent misrepresentation of a material fact in obtaining the signature. (Emphasis supplied).

§ 768.46, Fla.Stat. (1981).

This statute expands on and codifies the prior Florida case law, but it makes one fundamental change. The showing of what the acceptable medical practice standard is and whether the doctor followed it is worded as a defense rather than as a part of the plaintiffs prima facie case. Once the plaintiff shows, as in this case, that the defendant-doctor failed to tell him of serious and substantial risks, then logically the burden should shift to the doctor to show that the patient was in fact so informed, or that it is not customary in that medical community to tell a patient about those particular risks. See Mallet v. Pirkey, 171 Colo. 271, 466 P.2d 466 (1970); Hamilton v. Hardy, 37 Colo.App. 375, 549 P.2d 1099 (Ct.App.1976); Stauffer v. Karabin, 30 Colo.App. 357, 492 P.2d 862 (Ct.App.1971); Natanson v. Kline, 187 Kan. 186, 354 P.2d 670 (1960); Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (Ct.App.1974), aff’d, 85 Wash.2d 151, 530 P.2d 334 (Wash.1975); Trogun v. Fruchtman, 58 Wis.2d 569, 207 N.W.2d 297 (1973).

In a case decided under this new statute, Dandashi v. Fine, 397 So.2d 442 (Fla. 3d DCA 1981), the court held that the lower court erred in directing a verdict on the issue of informed consent in a malpractice case. The court quoted subsections 768.-46(3) and (4)(a) and concluded that the issues of consent and informed consent were properly for the jury.

In determining whether the presumption [in subsection 4(a) ] should apply the trier of fact is obligated to consider all the circumstances including the medical procedure proposed, the risks inherent in the procedure, and in that light, the adequacy and reliability of the means chosen to communicate the information to appellant, considering also the known language difficulty.
As to defendant Fine it was error to direct a verdict. A review of the entire record shows sufficient evidence to survive a motion for directed verdict on the issue of informed consent. The testimony of Dandashi, his family members, along with that of Dr. Tenzel and Dr. Ballantyne by deposition, presented sufficient evidence, though conflicting or susceptible of different inferences, tending to prove plaintiff’s case.

Id. at 446. There is no discussion in Danda-shi about the necessity for the plaintiff to present expert medical testimony on the standard of information given for Danda-shi’s operation. Apparently, neither expert’s deposition proffered at trial covered that point.

But even if medical testimony about the standard of information regarding risks is required under section 768.46 to establish the plaintiff’s prima facie case on informed consent in a normal case, I do not think it should be required in this case because of the unusual circumstances presented. Here, the medical testimony of Dr. Keller, Dr. Charles Carter and Dr. M. Hunter Brown established, before the close of the plaintiff’s case, that the operation performed on Marcella was very rare. Dr. Keller did not know whether it had ever been done in Florida, and it was proven that the operation was being done in only a few places in the United States. That supports a clear inference that there may be no accepted or established community standard concerning what information about risks is told to patients about to undergo an amyg-dalotomy in Dr. Keller’s médieal community. As far as Florida is concerned, it appears Keller is a “community” of one. He testified he would inform his patients about the risks of death and paralysis. Whether he did or not was a question of fact bitterly in dispute according to the testimony. See Atkins v. Humes, 110 So.2d 663 (Fla.1959).

Further, the medical testimony established that this is the kind of surgery that carries the most severe kinds of risks. From this it could be inferred that any reasonable discussion by a physician would include the big ones: death and paralysis. Since the Ritzes’ testimony established they were not told of these major risks, a jury issue was presented. Bowers v. Talmage, 159 So.2d 888 (Fla. 3d DCA 1963); see also Calabrese v. Trenton State College, 162 N.J.Super. 145, 392 A.2d 600 (Ct.App.Div.1978).

For the reasons stated, I would reverse the judgment and remand this cause for trial on the issues of informed consent and lack of consent because of misrepresentations on the part of Dr. Keller.

      . This statute contained the same language in 1977 when Marcella’s surgery was performed.

      . The doctor was asked, however, if the failure to secure Marcella’s consent was a deviation from the recognized standard of care and he made the rather incredible statement that the patient’s consent should have been obtained, despite his agreement that she was incompetent, had an I.Q. of about 25, and would not have understood anything she was told about the operation.

      . Mrs. Ritz’s familiarity with the medical terminology is demonstrated by her testimony, viz:

      Q. Then, after Marcie was out of the hospital and went back over to Sunland, you and Mr. Ritz went to his office, Doctor Keller’s office on some occasion and had a sit-down discussion about surgery?
      A. That was to discuss the brain scan and the tests that were taken of Marcie when she—
      Q. Don’t imagine you remember what date it was, and he doesn’t either, but was it fairly soon after she got out of the May hospitalization?
      A. She was in the hospital for the purpose of these tests to determine whether or not surgery — she was a candidate for surgery, and it was shortly after he had these reports and read them that we were directed to come down to his office and discuss it.
      Q. Okay.
      A. I would say within two weeks after.
      Q. All right. So, probably May or June of 1977?
      A. Yes, still May, I would say it was still in May.
      Q. All right. And you all met in his office and talked about for about forty-five minutes on the—
      A. We met at his office and talked for at least a half an hour.
      Q. And he told you about the surgery, told you how it’s done, told you what it was like, gave you a description of it, and that sort of thing?
      A. He told us about the CAT Scan and about the test that Marcie was — had taken, and he discussed the type of surgery, and said that she was a perfect candidate for that type of surgery, that since nothing else had worked for her that that was the answer for her problem.
      Q. And you actually discussed amygdaloto-mies?
      A. We discussed brain surgery and placing a lesion to alleviate her problem. We were assured that the CAT Scan revealed a perfectly normal brain, and the E.E.G. revealed no problems whatsoever.
      Therefore, all he had to do was follow the normal pattern that anyone would take for surgery, and that he anticipated no problems because of the scan showing there was no lesions or nothing.

      . It can also be said that any person should know that drilling holes in the skull and inserting a probe for the purpose of destroying brain tissue involves certain dangers, one of which is death.

      . He testified:
      A. Well, I specifically mentioned that there was a possibility of a paralysis from this type of surgery.
      Q. Death?
      A. Death.
      Q. That her condition might worsen?
      A. Ah, I know that came up.

      . Dr. Keller testified:
      You can’t discuss any operation of this gravity without discussing risks .... p]t’s a general rule that risk factor, with regard to stereotactic amygdalotomy, is fairly small.

      I told her [Mrs. Ritz] it was a major operation, and that complications can occur, complications any time you operate on the brain. There is a possibility of paralysis. There is a remote possibility of death even.

      . § 768.46, Fla.Stat. (1981). This statute was originally enacted as section 768.132, Florida Statutes (1975). Ch. 75-9, § 11, Laws of Fla.

      . Compare Wale v. Barnes, 278 So.2d 601 (Fla.1973), a pre-1975 case where the court held the plaintiff must carry the burden of proving the standard and whether the doctor complied with it.

      . The requirement of medical experts to establish standards of information or standards of practice has received increasing criticism by other courts. See Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972); Hamilton v. Hardy, 37 Colo.App. 375, 549 P.2d 1099 (Ct.App.1976); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972); Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (Ct.App.1974), aff’d, 85 Wash.2d 151, 530 P.2d 334 (Wash.1975); see also Informed Consent in Medical Malpractice, 55 Cal.L.Rev. 1396 (1967).

      . See Cobbs v. Grant; Hamilton v. Hardy; Collins v. Meeker, 198 Kan. 390, 424 P.2d 488 (1967); Mitchell v. Robinson, 334 S.W.2d 11 (Mo.1960).