text:
    Walter Norfolk WEBB, III, Appellant, v. STATE of Florida, Appellee.
    No. 83-697.
    District Court of Appeal of Florida, Fifth District.
    July 5, 1984.
    Rehearing Denied Aug. 22, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a sentence in a robbery case. The maximum sentence for the crime committed is 15 years. Before trial, the court agreed to sentence appellant to only 10 years if he would plead guilty. He refused to plead and after trial the court told him:

THE COURT: Sir, let me state for the record that the reason for the additional five years, number one, we had to bring two witnesses from California when we were forced into trial position; number two, I was not formerly aware of the Defendant’s prior felony conviction. It was established per the Florida Rules of evidence during the trial that he did admit to a prior felony conviction. The Court took that into consideration. That was a new factor and finally the Court agrees with the Jury’s evaluation of the Defendant’s testimony on the stand. Those are the reasons for the enhancement.

While we do not disagree with the judge taking into consideration the earlier undisclosed prior felony conviction and the fact that he felt appellant had lied on the witness stand, we do find fault with “number one” from the quote. The factors that “we” had to bring witnesses from California (the record indicates Pennsylvania) and that “we” were forced into trial position are not valid considerations for sentencing purposes. We vacate the sentence, remand the matter to the trial court for resentenc-ing. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); R.A.B. v. State, 399 So.2d 16 (Fla. 3d DCA 1981); Gillman v. State, 373 So.2d 935 (Fla. 2d DCA 1979); McEachern v. State, 388 So.2d 244 (Fla. 5th DCA 1980).

Sentence vacated and remanded.

COBB, C.J., and DAUKSCH and SHARP, JJ., concur.


source: Caselaw Access Project

author: COBB, Chief Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Timothy Kevin McLAUGHLIN, Appellee.
    No. 83-1000.
    District Court of Appeal of Florida, Fifth District.
    July 5, 1984.
    Rehearing Denied Aug. 22, 1984.

      Jim Smith, Atty. Gen., Tallahassee, and Mark Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Stuart I. Hyman of NeJame & Hyman, P.A., Orlando, for appellee.
   COBB, Chief Judge.

The state appeals a suppression order arising from a unique factual background. The facts adduced at the suppression hearing below reveal the following:

On January 12, 1983, between 11:00 P.M. and midnight, Officer Little of the Sanford Police Department was driving his patrol car through the parking lot of a condominium complex which connected with an adjoining street when he saw a small box in an undesignated parking space. He stopped his car and shined a flashlight on the box, which appeared to him to be a “money box.” He picked it up and determined it to be rather heavy. He shook the box, which was locked, and heard what sounded like coins. As Officer Little was taking the box to his patrol car, a car approached and the defendant, McLaughlin, exited the passenger side and asked Little if he had just found the box. The officer stated he had, whereupon McLaughlin said the box and its contents were his. Little then asked him what was in the box and McLaughlin responded that it contained money belonging to him. Little asked McLaughlin if he had a key to the box and McLaughlin told him he did not have one with him or at his apartment, but that his brother had a key. During this conversation, McLaughlin told Little that he lived in the condominium complex where the box was located. After taking down McLaughlin’s name and address from his license, Little told him he was taking the box to the police station and would return it to him when he could produce a key and identify the contents.

Little then left the parking lot and drove to a convenience store where he met his sergeant. After they discussed how they would determine ownership of the box, Little drove to the police station, where he got a ring of keys from his own car, returned to the patrol car and tried the keys in the box lock. At this point, he did not have an inventory checklist. He opened the box with one of the keys, and discovered two zip-lock type clear bags in the box, one containing a white powder and the other a hard substance. He felt the contents were drugs. He closed the box, brought it into the police station and contacted his supervisor. When his supervisor arrived, they opened the box but no inventory was made then. An inventory was made when Officer Little gave the box to the custodian in the morning. Officer Little said that had McLaughlin produced a key at the scene and unlocked but not opened the box, he would have “probably” given the box to him. However, later he indicated that he would have wanted McLaughlin to identify the contents.

Presented with the foregoing, the trial court rendered the following order of suppression, from which the state appeals:

ORDER
THIS CAUSE came on for consideration pursuant to the Defendant’s Motion to Suppress and the Court having heard testimony, argument of Counsel and having read a number of Appellate Court decisions and the Court being fully advised in the premises finds as follows:
1. That the box containing the cocaine was found in the common area of the condominium association in a parking space in front of Defendant’s residence. The parking space was not designated as Defendant’s parking space but was in the vicinity of the condominium unit where he resided. This area, while not a private area for Defendant, was not a public area since it was in the common area for all residents of the condominium association.
2. In order to establish a zone of privacy upon which the government may not intrude without first obtaining a Search Warrant, a person must show an actual expectation of privacy in the area in question and that the expectation of privacy is in an area that society is prepared to recognize as reasonable. State v. Parker, 399 So.2d 24 (Fla. 3d DCA 1981). Since the area in which the box was found was a common area as opposed to a public area the Defendant had a reasonable expectation of privacy.
3. The contents of the box were not in plain view. The box was searched by the police at the Sanford Police Department after taking the box from the condominium area. The search of the box was not a valid inventory or protective search for which a Search Warrant would not be required. The box could have been reasonably sealed, inventoried and stored pending issuance of a Search Warrant since the police had complete control over the box. State v. Southwell, 369 So.2d 371 (Fla. 1st DCA 1979).
4. The police had no probable cause to believe that the box constituted contraband, instrumentalities or evidence of a crime.
5. Considering the totality of the circumstances, the Court specifically finds that the box had not been abandoned, that the Defendant had a reasonable expectation of privacy and that there was no probable cause for a search of the box without a Search Warrant. It is, therefore,
ORDERED AND ADJUDGED that the evidence, to-wit: cocaine found in the box be and the same is hereby suppressed.
DONE AND ORDERED in Chambers, at Sanford, Seminole County, Florida, this 17th day of June, 1983.

The state first argues on appeal that McLaughlin lacked standing to assert his motion to suppress because he had no legitimate expectation of privacy in the condominium parking lot, which was open and accessible to multiple persons, including Officer Little. This argument is specious, however, because McLaughlin, as the asserted owner of the locked box, would have an owner’s reasonable expectation of privacy as to its contents. Based on that assertion, he has standing to challenge the im-poundment of the box and the consequent search of its contents. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

The real issue in this cause is set forth in the state’s second point on appeal, to-wit: whether the box was legally seized and inventoried as lost (or abandoned) property. The state concedes that seizure and search of the box cannot be based on probable cause to believe a crime had been committed, and that no search warrant could have been obtained. Instead, it argues that the box was lost property and that the contents were inventoried in an administrative search to ascertain the true owner. Purely administrative searches conducted to merely record the contents of a parcel are a recognized exception to the warrant requirement, says the state, relying primarily on two United States Supreme Court cases: Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), and South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

The appellee argues that the box was not lost or abandoned property because McLaughlin claimed it almost contemporaneously with its discovery by the police, and it was located in the parking lot of the condominium complex where he lived, thus giving him an expectation of privacy in regard to the location where it was found. Claiming an analogy between a motor vehicle and the box in the instant case, the appellee cites to a number of Florida vehicle cases for the proposition that the mere fact that a motor vehicle is left temporarily unattended does not give police the right to search it. This analogy fails, however, because an unattended automobile, absent peculiar circumstances, does not give rise to a reasonable inference that the automobile is lost or abandoned property.

McLaughlin also cites to State v. Southwell, 369 So.2d 371 (Fla. 1st DCA 1979), for the proposition that luggage securely in the control of the police cannot be the subject of a Chimel search incident to arrest or a Chambers automobile exigency search. The viability of Southwell is doubtful in view of the principles subsequently enunciated in Lafayette. In Lafayette the defendant, who had been arrested for disturbing the peace, arrived at the police station carrying a purse-type shoulder bag. There, the contents of the bag were inventoried by the police, revealing contraband pills. Lafayette was charged with possession of the pills, but succeeded in the state courts of Illinois in suppressing the pills as evidence on the basis that the warrantless inventory search was illegal. Lafayette argued that his privacy interest .in the shoulder bag was greater than in an automobile, thus distinguishing Opper-man; he also contended that the state’s legitimate interests could have been met in a less intrusive manner by sealing the shoulder bag in some manner and keeping it in a locker.

On discretionary review, the United States Supreme Court upheld the search and said:

Our prior cases amply support this conclusion. In South Dakota v. Opperman, supra, we upheld a search of the contents of the glove compartment of an abandoned automobile lawfully impounded by the police. We held that the search was reasonable because it served legitimate governmental interests that outweighed the individual’s privacy interests in the contents of his car. Those measures protected the owner’s property while it was in the custody of the police and protected police against possible false claims of theft. We found no need to consider the existence of less intrusive means of protecting the police and the property in their custody — such as locking the car and impounding it in safe storage under guard. Similarly, standardized inventory procedures are appropriate to serve legitimate governmental interests at stake here.
The Illinois court held that the search of respondent’s shoulder bag was unreasonable because “preservation of the defendant’s property and protection of police from claims of lost or stolen property, ‘could have been achieved in a less intrusive manner.’ For example, ... the defendant’s shoulder bag could easily have been secured by sealing it within a plastic bag or box and placing it in a secured locker.” [People v. Lafayette ] 99 Ill.App.3d [830] at 835 [55 Ill.Dec. 210 at 215], 425 N.E.2d [1383], at 1386 (citation omitted). Perhaps so, but the real question is not what “could have been achieved”, but whether the Fourth Amendment requires such steps; it is not our function to write a- manual on administering routine, neutral procedures of the stationhouse. Our role is to assure against violations of the Constitution.
The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means. In Cady v. Dombrowski, 413 U.S. 433 [93 S.Ct. 2523, 37 L.Ed.2d 706] (1973), for example, we upheld the search of the trunk of a car to find a revolver suspected of being there. We rejected the contention that the public could equally well have been protected by the posting of a guard over the automobile. In language equally applicable to this case, we held, “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.” Id., at 447 [93 S.Ct. at 2531]. See also United States v. Martinez-Fuerte, 428 U.S. 543, 557 n. 12 [96 S.Ct. 3074, 3082, n. 12, 49 L.Ed.2d 1116] (1976). We are hardly in a position to second-guess police departments as to what practical administrative method will best deter theft by and false claims against its employees and preserve the security of the stationhouse. It is evident that a stationhouse search of every item carried on or by a person who has lawfully been taken into custody by the police will amply serve the important and legitimate governmental interests involved.
Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit. Only recently in New York v. Belton, 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768] (1981), we stated: “ ‘[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ ” Id., at 458-460 [101 S.Ct., at 2863-2864], quoting Dunaway v. New York, 442 U.S. 200, 213-214 [99 S.Ct. 2248, 2257-2258, 60 L.Ed.2d 824] (1979). See also United States v. Ross, 456 U.S. 798, 821 [102 S.Ct. 2157, 2170, 72 L.Ed.2d 572] (1982).

Lafayette, 462 U.S. at _, 103 S.Ct. at 2610.

It is necessary, then, to apply the principles in Lafayette and the other cases set forth above to the findings of the trial court in the instant case. First, the trial court found that the parking lot where the metal box was found was a zone of privacy upon which the government could not intrude without a search warrant. We disagree with this finding as contrary to the facts of this case and the law pertaining to searches under the Fourth Amendment. State v. Parker, 399 So.2d 24 (Fla. 3d DCA), review denied, 408 So.2d 1095 (Fla. 1981), the case relied upon by the trial court in its order, is inapplicable. It dealt with a residence and enclosed back yard. In the instant case, we have a parking area which is unenclosed and unrestricted to traverse by the public. See U.S. v. Humphries, 636 F.2d 1172 (9th Cir.1980), cert. denied, 451 U.S. 988, 101 S.Ct. 2324, 68 L.Ed.2d 846 (1981); U.S. v. Sherriff 546 F.2d 604 (5th Cir.1977). McLaughlin had no reasonable expectation of privacy in the undesignated parking space of the condominium.

The trial court correctly observed that the contents of the box were not in plain view — which is irrelevant in a case where seizure is not based on probable cause to suspect criminal activity. The trial court then found:

The search of the box was not a valid inventory or protective search for which a search warrant would not be required. The box could have been reasonably sealed, inventoried and stored pending issuance of a search warrant since the police had complete control over the box. State v. Southwell, 369 So.2d 371 (Fla.1st DCA 1979).

The trial court’s finding that the search of the box was invalid necessarily implies that Officer Little was required to either (1) give the box to McLaughlin upon his request, or (2) seal and hold the box unopened pending application for a search warrant. The first alternative was not required, in our view, because it would have been unreasonable for the officer to release the apparently lost or abandoned money box to a person having neither a key to it nor an explanation, plausible or otherwise, as to why the box was in the parking lot.

The second alternative was not required because no search warrant could have been obtained and the valid purpose of impounding the box was to ascertain and protect the true owner, whoever that may have been, and who may or may not have been McLaughlin insofar as Officer Little could determine at that time. The only less intrusive method to accomplish that purpose was to hold the box unopened until a claimant appeared with a key to fit it—or until it became apparent that no claimant was going to appear, thereby requiring that the box be opened, as a last resort, for identification purposes. We do not believe, based upon the principles enunciated in Lafayette and Opperman, that this latter course was constitutionally required. Indeed, it is not at all clear that it would have been reasonable to turn over the box to any claimant with an operative key, without identification of the contents, in view of the comparative ease with which such a key could be found.

This brings us to the last, and perhaps most enigmatic, constitutional problem presented by this scenario. The appel-lee argues that standard police procedures for an inventory search were not followed by Officer Little because he first opened the box in the patrol car rather than waiting and having it initially opened in the presence of the property custodian with a checklist inside the police station. The ap-pellee also notes that Little left no receipt with McLaughlin at the parking lot. We are unimpressed with this latter point because it assumes the box was taken from McLaughlin’s possession—a premise unsupported by these facts. Whether or not McLaughlin had any legitimate interest in the box at the time of impoundment was the very question to be resolved. To say that McLaughlin was entitled to a property receipt begs the question.

It is apparent from the record that Officer Little did not employ the standard police inventory procedure when he initially opened the box. However, the appellee’s claim that Little’s imprudent search requires suppression ignores the inevitable discovery exception to the exclusionary rule. This doctrine was implicitly sanctioned by the United States Supreme Court in Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), see footnote 12. It has now been explicitly adopted in Nix v. Williams, — U.S. —, 104 S.Ct. 2501, 81 L.Ed.2d 77 (1984).

The rationale underlying the doctrine is that the prosecution should not be put in a worse position in regard to the admissibility of probative evidence by police misconduct than it would have been in had there been no error or misconduct. Therefore, if the evidence derived via police misconduct was also available through an independent and untainted source, or inevitably would have been discovered without the misconduct, then its admission is justified as an exception to the exclusionary rule irrespective of the good faith or bad faith motivating the misconduct. See Nix at—, 104 S.Ct. at 2507. The evidence test to ascertain the inevitability of discovery of the tainted evidence is that of preponderance. See Nix at—, 104 S.Ct. at 2507; United States v. Matlock, 415 U.S. 164, 178, n. 14, 94 S.Ct. 988, 996, 89 L.Ed.2d 242, 253 (1974).

In the instant case, the question is whether or not the cocaine in the metal box would have been inevitably discovered by a proper inventory search in the police station. In other words, did Officer Little’s impetuous peek prompt the subsequent inventory of the contents of the box, or would that have occurred in any event? Perhaps the box would have been held unopened and uninventoried by the Sanford Police Department, despite Lafayette, awaiting a claimant with a key, in the absence of Little’s improper action. Perhaps such a claimant would have appeared, or perhaps not. These factual determinations have not been made by the trial court.

Accordingly, we reverse the order of suppression entered by the trial court dated June 17,1983, and remand this cause to the trial court for further consideration of the motion to suppress in light of this opinion and that of the United States Supreme Court in Nix v. Williams.

REVERSED and REMANDED.

DAUKSCH and SHARP, JJ., concur.

        .See Lovett v. State, 403 So.2d 1079 (Fla. 1st DCA 1981); Hicks v. State, 398 So.2d 1008 (Fla. 1st DCA 1981); Agnew v. State, 376 So.2d 13 (Fla. 2d DCA 1979); G.B. v. State, 339 So.2d 696 (Fla. 2d DCA 1976); Godbee v. State, 224 So.2d 441 (Fla. 2d DCA 1969); Tolbert v. State, 348 So.2d 623 (Fla. 4th DCA 1977).

      . Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

      . Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).


author: GRIMES, Judge.

text:
    Gregory A. CARLSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1400.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Rehearing Denied Aug. 31, 1984.
    B. Anderson Mitcham, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee. •
   GRIMES, Judge.

Appellant contends that his conviction for trafficking in marijuana was predicated upon insufficient evidence.

A task force of various law enforcement departments was involved in the investigation of a suspected drug smuggling operation in Lee County. Based on the information obtained from telephone wiretaps, several members of the task force established surveillance of a Ramada Inn in Fort Myers on the evening of July 26, 1979. Though initially looking for a large red truck with a white body, their attention later became focused upon a blue and white Chevrolet pickup truck with which they were familiar. The surveillance team followed this truck out of town on state road 767 to a deserted area on Pine Island. At 11:20 p.m., the truck turned onto a dirt road with its lights out. Members of the task force maintained constant surveillance at the entrance to the dirt road. At 12:40 a.m., a large truck with a red cab and a white body turned into the dirt road. No other vehicles traveled the dirt road from 11:20 p.m. until 3:25 a.m., the end of the surveillance period. Only three or four vehicles were seen on state road 767.

At 3:25 a.m., three members of the task force began to walk down the dirt road. They saw only the tire tracks of the two trucks which had entered. About five minutes later, they detained a man who had come from a wooded area near the road. Shortly thereafter, they saw the blue and white pickup truck approaching them with its lights out. They stopped this truck and apprehended the driver. Several officers continued down the road seeking to locate the red and white truck. They found this truck about seven-tenths of a mile from where the blue and white pickup truck had been stopped. One of the officers walked to the rear of the red and white truck and smelled marijuana. They also saw some vegetable material on the tailgate that appeared to be marijuana residue.

At this point appellant came walking out of a nearby swampy area infested with mosquitoes holding his shirt in his hand. He said, “I give up,” and placed his shirt on the tailgate. When asked what he was doing in the woods at that time, appellant answered that he “liked to drive in the woods.” In response to the question of whether anyone else was out there, appellant said, “No, I’m the driver, I guess I’m stuck.” Appellant had a walkie-talkie in his pocket but no keys. There was a key to the truck in the ignition.

A K-9 unit was brought to the red and white truck where a narcotics-sniffing Doberman indicated the presence of marijuana. Since the back of the truck appeared to be padlocked, the officers began discussing how to remove the lock. Thereupon, appellant volunteered that the padlock was not locked. The officers then looked at the lock closely with a flashlight. They found that although the lock appeared to be in place, it was not snapped shut and hence could be opened without a key. The officers opened the rear of the truck and found marijuana. Later, a key was found on the road which fit the padlock.

Recognizing that his conviction rests upon constructive possession, appellant argues that the state failed to prove his ability to exercise control over the marijuana. He relies heavily upon Kuhn v. State, 439 So.2d 291 (Fla. 3d DCA 1983), in which convictions for possession of marijuana were reversed. In that case law enforcement officers had three pickup trucks under surveillance and followed two of them to a motel. A defendant was found seated in the cab of one of the trucks from which the smell of marijuana emanated. He was not the owner of the truck and had not been seen operating it. The court held that there was insufficient evidence of the defendant’s ability to exercise control over the marijuana found in the back of the truck which could not be reached from the cab. Another defendant had also been arrested as he tried to run from the parking lot. The court held that he could not be convicted because the only evidence connecting him to the crime was a luggage bag with his name on it in the cab of the other truck which also contained marijuana.

Notwithstanding, we cannot accept appellant’s arguments. The fact that appellant knew that the padlock on the back of the red and white truck was unlocked is more than enough to distinguish Kuhn. The court properly denied appellant’s motion for judgment of acquittal. Appellant’s admissions to the arresting officers coupled with the circumstances surrounding his apprehension provided sufficient evidence for the jury to conclude that appellant had the ability to exercise control over the marijuana in the truck. See Wale v. State, 397 So.2d 738 (Fla. 4th DCA 1981).

AFFIRMED.

RYDER, C.J., and LEHAN, J., concur.


author: PER CURIAM.

text:
    John Zavier LINNEHAN, Martina White Linnehan, and Daniel Edwards Moore, Appellants, v. STATE of Florida, Appellee.
    Nos. 83-1421 to 83-1423.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Rehearing Denied Sept. 5, 1984.
    Sebastian K.D. Graser, Alexandria, Va., for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellants were convicted of criminal mischief, culpable negligence, resisting arrest without violence, trespass, and unlawful assembly. The charges arose out of a demonstration at a plant believed to manufacture nuclear weapons components. The trial court had granted the state’s motion in limine to exclude evidence to be offered by appellants in support of their “necessity” defense. The gist of that defense was that defendants had a reasonable belief that their actions were necessary to prevent the use or threat of use of nuclear weapons by the United States in violation of international law.

On appeal appellants contend that the trial court erred in granting the motion in limine and refusing to admit certain evidence offered in support of that defense. We disagree and affirm.

We conclude that the trial court was correct in ruling the evidence would be irrelevant because the evidence would not have established the “necessity” defense. United States v. Seward, 687 F.2d 1270, 1274-76 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983). The language of the Fourth Circuit Court of Appeals in United States v. Cassidy, 616 F.2d 101 (4th Cir.1979), reflects our conclusions in the case at hand:

[E]ven if possession of nuclear weapons is illegal as defendants contend — an issue that we do not address — the necessity defense is inapplicable. As sought to be applied here, essential elements of the defense are that defendants must have reasonably believed that their action was necessary to avoid an imminent threatened harm, that there are no other adequate means except those which were employed to avoid the threatened harm, and that a direct causal relationship may be reasonably anticipated between the action taken and the avoidance of the harm. Even if we accept defendants’ reasonable belief, we do not think that the elements of lack of other adequate means or direct causal relationship could be satisfied.

Id. at 102 (emphasis added). See also United States v. Lowe, 654 F.2d 562, 566-67 (9th Cir.1981). We are not persuaded otherwise by the majority opinion in Pennsylvania v. Berrigan, — Pa.Super. -, 472 A.2d 1099 (1984).

AFFIRMED.

RYDER, C.J., and GRIMES and LE-HAN, JJ., concur.


text:
    AMERIFIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, a United States corporation, Appellant, v. Norman COHEN, Individually, and as Trustee of Trust No. 71-LT-100, Appellee.
    No. 82-2556.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Rehearing Denied Sept. 14, 1984.

      Fowler, White, Burnett, Hurley, Banick & Strickroot, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Trib-ble, Miami, for appellant.
    Floyd, Pearson, Stewart, Richman, Greer & Weil and Gerald Richman and Bertha Claire Lee and William C. Hearon, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a non-final order which enters a partial summary judgment for the plaintiff on one count of a five-count complaint, and orders the defendant in the action to deliver a certain mortgage and promissory note to the plaintiff on the basis that the plaintiff is “the rightful owner and proper holder of the note and mortgage in question.” We have jurisdiction to entertain this appeal because the subject order is an appealable non-final order under Article V, Section 4(b)(1) of the Florida Constitution, as implemented by Fla.R.App.P. 9.130(a)(3)(C)(ii). The order under review plainly “determine[s] ... [the] right to immediate possession of property,” Fla.R.App.P. 9.130(a)(3)(C)(ii), as to the above-stated mortgage and note, and is therefore appealable to this court. Fla. Const, art. V, § 4(b)(1); Fla.R.App.P. 9.130(a)(3)(C)(ii).

The order appealed from voids the enforcement of certain provisions of a court-approved settlement agreement entered into by the parties to a mortgage foreclosure action. The parties to the prior foreclosure action and the parties to the instant action are the same, to wit: Ameri-first Savings and Loan Association (“Amer-ifirst”), the creditor, and Norman Cohen, as trustee under a land agreement (“Cohen”), the debtor. Subsequent to the settlement agreement herein, Cohen filed a five-count complaint against Amerifirst seeking in count I of the complaint to declare unenforceable certain provisions of the court-approved settlement agreement and to obtain possession of a mortgage and note held by Amerifirst pursuant to the above-stated provisions of the settlement agreement. The trial court granted the relief requested on the ground that it would be unconscionable to enforce these provisions of the settlement agreement. Amerifirst appeals.

The facts of this case are exceedingly complex and will not be reviewed in any detail in this opinion. Suffice it to say that the settlement agreement was entered into by sophisticated and knowledgeable business persons in an arms-length transaction in which both parties received considerable benefits. It was a balanced agreement which settled a lawsuit between the parties and was subsequently approved by court order. Both parties fully understood what they were agreeing to; there was no overreaching by anyone; and the terms of the agreement, without dispute, contained no unconscionable terms.

True, as events worked out subsequent to the agreement, Amerifirst now stands to make over four million dollars pursuant to the agreement, after the underlying indebtedness together with interest, attorney’s fees, and other costs have been paid. Contrary to the trial court’s conclusion, however, making a handsome profit on an agreement, due to events subsequent to the agreement, hardly renders the enforcement of the agreement unconscionable or the provisions in question a forfeiture. Cohen gained much from this agreement and cannot now be permitted to back out of those provisions of the agreement which he deems harsh or onerous. See Geldermann & Co. v. Lane Processing, Inc., 527 F.2d 571, 576 (8th Cir.1975); Steinhardt v. Rudolph, 422 So.2d 884, 889-90 (Fla.3d DCA 1982), pet. for review denied, 434 So.2d 889 (Fla.1983).

The order under review is reversed and the cause is remanded to the trial court for further proceedings.

Reversed and remanded.


text:
    CITY OF MIAMI BEACH, Florida, a municipal corporation, Petitioner, v. Irving CYPEN and Gary R. Gerson, as Personal Representative of the Estate of Bertram M. Gerson; Southeast Bank, N.A., as Personal Representative of the Estate of Clara D. Gerson: Durant F. Clements, as Executor of the Estate of Clara D. Clements, Amelia King Buckley and Beatrice Wolland Krovetz, and the Honorable Bernard Jaffee, Circuit Judge assigned to Case No. 70-11798 in the Circuit Court for the 11th Judicial Circuit in and for Dade County, Florida, Respondents.
    No. 84-182.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Rehearing Denied Sept. 6, 1984.
    Dubbin, Berkman, Dubbin & Greenfield and Andrew H. Moriber, Miami, for petitioner.
    W.F. Esslinger, George B. Foss, Jr., Joseph S. Paglino, Miami, Frank Wolland, North Miami, Robert A. Ginsburg, Dade County Atty., and Roy Wood, Asst. County Atty., for respondents.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   ON PETITION FOR A WRIT OF CERTIORARI

PER CURIAM.

Title to the property having vested in the petitioner upon the deposit of the condemnation award into the trial court’s registry in 1976, see § 73.101, Fla.Stat. (1975), the trial court’s order is quashed insofar as it determined that the date of taking occurred three years later upon the voluntary dismissal of the petitioner’s pursuit of relief from a higher court. The remainder of the petitioner’s contentions are without merit.

Certiorari granted in part, denied in part; order under review quashed in part.


text:
    FRED McGILVRAY, INC., Appellant, v. BOVAY ENGINEERS, INC., et al., Appellee.
    No. 84-464.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.
    Rehearing Denied Sept. 6, 1984.
    Smathers & Thompson and James C. Polkinghorn, Miami, for appellant.
    Peters, Pickle, Flynn, Niemoeller & Downs, and Leiby & Elder and David R. Elder, Miami, for appellee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977); Florida Power & Light Co. v. Gilman, 280 So.2d 15 (Fla. 3d DCA 1973).


author: RYDER, Chief Judge.

text:
    James C. CRUIKSHANK, E.E. Simmons and Logan Smith, Appellants, v. SOUTHPOINTE DEVELOPMENT, INC., Appellee.
    No. 83-2069.
    District Court of Appeal of Florida, Second District.
    July 11, 1984.
    Rehearing Denied Aug. 31, 1984.
    Richard E. Nelson and Robert C. Wid-man of Nelson, Hesse, Cyril, Smith, Wid-man & Herb, Sarasota, for appellants.
    Philip N. Hammersley of Trawick, Griffis & Hammersley, P.A., Sarasota, for appel-lee.
   RYDER, Chief Judge.

The defendants below appeal from an order of the trial court awarding to South-pointe Development, Inc. (Southpointe) a parcel of real property and a maintenance shed thereon. We reverse.

Appellants James C. Cruikshank, E.E. Simmons and Logan Smith were the partners owning Sunrise Associates. Sunrise Associates conveyed to Longboat Terrace Corporation (Longboat), the predecessor in title of appellee Southpointe, real and personal property which is a part of the Sunrise Golf Course. Confusion as to the exact property conveyed by Sunrise Associates led to Southpointe’s filing a complaint for reformation of deed and declaratory judgment.

The disputed property is owned by Sarasota Utilities, Inc., formerly known as Sunrise Utilities, Inc. It was alleged that “[o]ne or more of the individual defendants own and control defendant Sarasota Utilities, Inc. and owned or controlled defendant Sarasota Utilities, Inc., formerly known as Sunrise Utilities, Inc.” In fact, Sarasota Utilities is a corporate entity which has not been identified as one and the same with the appellants or Sunrise Associates.

The key to this case is that it appears that Sarasota Utilities, Inc. did not convey the disputed property to South-pointe or Longboat in conjunction with appellants’ conveyance of their property to Longboat. Also, it has not been shown that Sarasota Utilities, Inc. conveyed its property to the appellants. Hence, Sarasota Utilities, Inc. cannot be bound by Sunrise Associates’ real estate contract with, or the deed given to, Southpointe’s predecessor in title.

The trial court found that “the present corporate titleholder [Sarasota Utilities] is charged with knowledge of the omission in the deed and with the obligation to comply with the contract; and is bound by the acts of its predecessors in title [Sunrise Utilities] in this respect.” We disagree as neither Sarasota Utilities, Inc. nor Sunrise Utilities, Inc. was a party to the first sale, and the corporate entity of Sarasota Utilities, Inc. and Sunrise Utilities, Inc. has not been shown to be a mere facade for or “alter ego” of Sunrise Associates or its partner/owner. A deed will not be reformed so as to include land not owned by the grantor. Pittman v. Fleming, 253 So.2d 497 (Fla. 1st DCA 1971), cert. denied, 259 So.2d 719 (Fla.1972). Cf. Bevis Construction Co. v. Grace, 115 So.2d 84 (Fla. 1st DCA 1959) (all interested persons should be joined in suit for reformation).

Therefore, we REVERSE and REMAND with instructions that this cause of action be dismissed.

SCHOONOVER and LEHAN, JJ., concur.


author: PER CURIAM. SHARP, Judge,

text:
    Willie C. TIPPINS, Appellant, v. STATE of Florida, Appellee.
    No. 83-884.
    District Court of Appeal of Florida, Fifth District.
    July 12, 1984.
    Rehearing Denied Aug. 23, 1984.

      C. Michael Barnette, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This case concerns the temporary detention of a suspected drug dealer, Tippins, based on a telephone call from an anonymous informant. The informant told the police that a black male, Willie Tippins, from West Palm Beach, driving a 1970 gold and black Cadillac with a temporary tag in the window, was selling cocaine and heroin in a specified area of Daytona Beach. The drugs were in a green bag and a gym bag.

In our view, the information was sufficiently detailed and corroborated under Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), and Hetland v. State, 387 So.2d 963 (Fla.1980), to justify at least reasonable suspicion for detention under Terry, if not probable cause under Ross. During the temporary detention of Tippins and his car, an open view of a partially concealed firearm occurred, justifying the arrest of Tippins. Ensor v. State, 403 So.2d 349 (Fla.1981). The arrest justified a search of the passenger compartment of the car, which resulted in the discovery of the green bag containing contraband. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

It is arguable that the Chadwick and Sanders exceptions to Ross would preclude a warrantless search of the trunk of Tippins’ car, because the anonymous tip detailed that the drugs Tippins possessed were in two specified containers — a green bag and a gym bag. That argument, however, must fail in this case because the defendant has not established on this appeal that the drugs related to his convictions were found in the gym bag in the car trunk (Chadwick), rather than in the green bag in the passenger compartment (Belton). This was the burden of the appellant, not the state. The distinction between a valid warrantless search throughout an automobile based upon Ross and the necessity, under certain circumstances, for a warrant to open specific containers located within an automobile, based on the exceptions of Sanders and Chadwick, is perceptively analyzed by Judge Nimmons in the recent case of Mancini v. State, 448 So.2d 573 (Fla. 1st DCA 1984).

AFFIRMED.

COBB, C.J., and DAUKSCH, J., concur.

SHARP, J., concurs specially with opinion.

SHARP, Judge,

concurring specially.

I concur with the majority opinion in its analysis of the Supreme Court interpretations of the fourth amendment up to the point where the green bag was found in the passenger compartment. The finding of the money and contraband at that point plus the specificity of the anonymous tip then, in my view, gave rise to probable cause to search the whole of the gold and black Cadillac, trunk and containers included. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The Chadwick and Sanders exceptions need not come into play at all.

Surely the police should not be in a worse position because the tipster told them too much. Had the tipster merely said the suspect was selling drugs out of a gold and black Cadillac, Ross would have justified the search of the whole vehicle under these circumstances. Knowing the color of the bags used to contain the drugs should make no difference. To the extent the majority opinion indicates it might make a difference, I respectfully disagree.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

      . United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

      . Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

      . United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

      . Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).


text:
    Raphael J. MUSICUS, Appellant, v. PLAYA DEL SOL ASSOCIATION, INC., and Westinghouse Electric Corporation, etc., et al., Appellees.
    No. 83-1002.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearing Denied Sept. 12, 1984.
    Raphael J. Musicus, Wilmette, Ill., pro se appellant.
    Richard G. Gordon of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellee-Westinghouse Elec. Corp.
    William J. Zloch of Patterson & Maloney, Fort Lauderdale, for appellees — Coral Ridge Properties, Inc., Robert L. Hofmann, George E. Hodapp, Jr., Richard T. Wade and Andrew N. Malanos.
   PER CURIAM.

Affirmed. See Eberwein v. Coral Pines Condominium One, 431 So.2d 616 (Fla. 4th DCA 1983).

ANSTEAD, C.J., and BERANEK and GLICKSTEIN, JJ., concur.


author: NESBITT, Judge. JORGENSON, Judge,

text:
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, Appellant, v. Joella DeGRIO, Appellee.
    No. 82-1865.
    District Court of Appeal of Florida, Third District.
    July 17, 1984.
    Rehearing Denied Sept. 7, 1984.

      Steel, Hector & Davis and Arthur J. England, Jr., Harold D. Smith, Miami, for ap-. pellant.
    Hershoff & Levy and Jay Levy, George M. Nachwalter, Miami, for appellee.
    Before NESBITT and JORGENSON, JJ., and FERRIS, JOHN G., Associate Judge.
   NESBITT, Judge.

The American Federation of Government Employees (AFGE) appeals a final judgment finding it liable for negligent infliction of emotional distress and awarding damages in the amount of $400,000. We reverse.

Joella DeGrio, the plaintiff below and appellee herein, was hired by the United States Government in 1961 as a civilian clerk to the United States Army. She was advised on June 15, 1976 that her employment was terminated effective June 25, 1976. DeGrio was a dues-paying member of Local 2447, a local affiliate of the AFGE, a national union and the defendant below. Although DeGrio did participate in local activities and her membership in the local made her a member of the national union, she was not a member of the exclusive bargaining unit of the local and her job was not covered by the collective bargaining agreement.

As both a federal civilian employee and a dues-paying member of the union, DeGrio had two sets of rights when her employment was terminated. Under federal law and Civil Service Commission regulations, she was eligible to appeal her job termination to the Commission. 5 C.F.R. pts. 752, 772. Additionally, as a dues-paying member of the union, DeGrio had a right to request union representation on this appeal. See Exec. Order No. 11,491 (Oct. 29, 1969) (set out as a note at 5 U.S.C.A. § 7101 (1980)).

By a letter dated July 7, 1976, DeGrio indicated that she wished to appeal her job termination and named the AFGE as her representative, stating that the specific name of the national representative would be forthcoming. The AFGE’s district vice president received a copy of this letter, and wrote to William Mudgett, a national representative for the AFGE, and informed him of DeGrio’s case. Mudgett then contacted the local’s president and advised him that DeGrio should notify the Commission that he, Mudgett, would be her representative so he could receive correspondence directly from the Commission. Mudgett was never so designated by DeGrio to the Commission.

Sometime in July 1976, Mudgett picked up DeGrio’s file from the local union. On or about July 19, 1976, Mudgett received a letter from DeGrio transmitting certain documents regarding her job termination. Other than this letter, there was no contact between Mudgett and DeGrio before or after the job termination hearing.

On July 29, 1976, the Commission sent DeGrio a copy of her complete file for the appeal, advising her to complete an included form if she desired a hearing. She completed the form indicating she wished a hearing and listed her witnesses and a summary of their expected testimony. Mud-gett was not named in the form as De-Grio’s representative and he did not receive a copy of the form.

The case was assigned to a hearing officer who notified DeGrio on August 26, that a hearing was set for September 9, 1976. DeGrio and her witnesses appeared before the hearing officer on the indicated date but Mudgett did not attend. There was conflicting testimony as to whether or not Mudgett was aware of the hearing beforehand, but the trial court determined by competent substantial evidence that he did have such knowledge. DeGrio told the hearing officer that she did not wish to proceed with the hearing without her national representative. The hearing officer said he could not determine whether another hearing could be set until he received a written explanation from Mudgett concerning his absence. Mudgett never explained to the hearing officer his failure to attend and consequently no hearing was ever held. The hearing officer ultimately upheld De-Grio’s termination on the basis of her employment file. His recommendation went up to the full Commission without challenge on December 9, 1976, and was there adopted without change.

On April 13, 1978, DeGrio brought a negligence action against the AFGE and Mud-gett in state court. The complaint sought compensatory damages for emotional and physical stress which required hospitalization, for impaired working ability, and for future loss of wages. The basis of the action was that Mudgett’s nonappearance at the hearing on September 9, 1976 was so traumatic to DeGrio that it caused a stress-induced epileptic seizure on September 17, 1976, resulting in a fall causing injuries. DeGrio also sought punitive damages on the ground that Mudgett’s failure to appear at the hearing and his later failure to explain his nonappearance constituted a willful and wanton disregard of DeGrio’s rights. Mudgett was eventually dismissed as a party defendant and is no longer involved in this case as a party.

The AFGE petitioned this court for a writ of prohibition on the ground that the trial court lacked subject matter jurisdiction. After oral argument, this court dismissed the petition for prohibition without opinion. Mudgett v. Gale, 366 So.2d 901 (Fla.3d DCA), cert. denied, 376 So.2d 74 (Fla.1979), cert. denied, 444 U.S. 1080, 100 S.Ct. 1032, 62 L.Ed.2d 764 (1980).

Following the prohibition proceedings, the trial court struck the punitive damages claim in the complaint. A nonjury trial was conducted on September 22-23, and December 11, 1981. The court found for DeGrio on the negligence claim and awarded $250,-000 in compensatory damages. Concluding its earlier order striking the punitive damages claim was error, the court also awarded $150,000 in punitive damages. This appeal followed.

The AFGE maintains, as it has throughout the proceedings in this case, that the circuit court lacked subject matter jurisdiction over this matter. DeGrio counters claiming that this court previously heard oral argument on the merits of the jurisdictional question and subsequently dismissed the petition for prohibition, and that this dismissal was a ruling on the merits and now has a res judicata effect. This same argument was advanced without success in Public Employees Relations Commission v. District School Board of De Soto County, 374 So.2d 1005 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla.1980). As in the present case, the court in Public Employees had previously discharged petitions for prohibition without opinion. The court there found:

It would be pure speculation to attribute any particular reasoning to the majority of the two prior panels of this court which decided that PERC’s suggestions for writ of prohibition should be denied. The point is that those denials could have rested on reasons other than the merits of the jurisdictional question posed in those prior proceedings. This being the case, we hold that this court’s prior denials of PERC’s suggestions for writ of prohibition do not foreclose us from considering the jurisdictional issue on this appeal.

Id. at 1010. Similarly, we find that the dismissal of a writ of prohibition without opinion is not res judicata unless the sole possible ground was that the court acted on the merits of the jurisdictional question, or unless it affirmatively appears that the dismissal was intended to be on the merits. Id. See also State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982), review denied, 436 So.2d 98 (Fla.1983); Coral Reef Nurseries, Inc. v. Babcock Co., 410 So.2d 648 (Fla. 3d DCA 1982). Therefore, our prior dismissal, without opinion, of the petition for prohibition in this case does not foreclose us from considering the jurisdictional question on this appeal. Thus, we now proceed to address that issue.

The AFGE argues that the breach of duty complained of by DeGrio is a breach of the duty of fair representation owed by a labor union to its member and that state courts’ jurisdiction has been preempted in this area. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). DeGrio, on the other hand, argues that the duty of fair representation is not involved, and that the AFGE breached a common law duty to act with reasonable care, which was imposed upon the AFGE when it voluntarily undertook to represent DeGrio on her job termination appeal. We agree with DeGrio that the duty of fair representation owed by a labor union to its members in certain circumstances is not involved here.

DeGrio is correct in pointing out that the source of the duty of fair representation is the exclusivity of the union as the bargaining representative. The United States Supreme Court, in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), stated:

The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187, and was soon extended to unions certified under the N.L.R.A., see Ford Motor Co. v. Huffman, [345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048]. Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.

386 U.S. at 177, 87 S.Ct. at 910. The Court further found that:

The federal labor laws seek to promote industrial peace and the improvement of wages and working conditions by fostering a system of employee organization and collective bargaining, [citation omitted]. The collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to' the collective interests of all employees in a bargaining unit, [citation omitted]. This Court recognized in Steele that the congressional grant of power to a union to act as exclusive collective bargaining representative, with its corresponding reduction in the individual rights of the employees so represented, would raise grave constitutional problems if unions were free to exercise this power to further racial discrimination. 323 U.S., at 198-199, 65 S.Ct., at 230-231, 89 L.Ed. 173. Since that landmark decision, the duty of fair representation has stood as a bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.

386 U.S. at 182, 87 S.Ct. at 912. The Court then held that:

A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith, [citations omitted].

386 U.S. at 190, 87 S.Ct. at 916. See also International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979) (“Steele held that when Congress empowered unions to bargain exclusively for all employees in a particular bargaining unit, and thereby subordinated individual interests to the interests of the unit as a whole, it imposed on unions a correlative duty ‘inseparable from the power of representation’ to exercise that authority fairly.”). It is apparent that there is a direct relationship between the existence of a duty of fair representation and the exclusive bargaining status of a union. The duty is imposed only on a union when it is the exclusive representative of a bargaining unit. This duty is imposed for the benefit of the members of the unit because they have given up their individual rights of representation for the good of the unit as a whole. Where a union is not the exclusive bargaining representative of a union member, there is no statutory duty of fair representation owed by the union to that member. See Archer v. Airline Pilots Association International, 609 F.2d 934 (9th Cir.1979), cert. denied, 446 U.S. 953, 100 S.Ct. 2920, 64 L.Ed.2d 810 (1980).

In the present ease, it is undisputed that DeGrio was not a member of the exclusive bargaining unit. Therefore, she could have chosen anyone she wished to represent her at the hearing. The AFGE was not her exclusive bargaining representative and, consequently, did not owe her a duty of fair representation. See Foust; Vaca; Steele; Archer.

The record, however, does support the trial court’s finding that the AFGE gratuitously undertook the obligation of representing DeGrio at her job termination hearing. In so doing, the AFGE assumed a common law duty to exercise due care in that representation.

It is axiomatic that an action undertaken for the benefit of another, even gratuitously, must be performed in accordance with an obligation to exercise reasonable care.

Barfield v. Langley, 432 So.2d 748, 749 (Fla. 2d DCA 1983). Accord Banfield v. Addington, 104 Fla. 661, 140 So. 893 (1932); Kaufman v. A-1 Bus Lines, Inc., 416 So.2d 863 (Fla. 3d DCA 1982). See generally 38 Fla.Jur.2d Negligence § 13 (1982). The duty the AFGE allegedly breached, therefore, arises from the common law of negligence, and not from federal labor policy. Accordingly, we find that the trial court had subject matter jurisdiction in the present case.

We now turn to the merits of the negligence claim. In essence, the cause of action in this case is based upon the AFGE’s negligent infliction of emotional distress on DeGrio. This immediately brings to the forefront Florida’s impact rule. The rule in Florida is that absent physical impact upon the plaintiff, damages may not be recovered for mental anguish or physical injuries resulting from emotional stress caused by the negligence of another. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Cadillac Motor Car Division, General Motors Corp. v. Brown, 428 So.2d 301 (Fla.3d DCA 1983); Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982); Claycomb v. Eichles, 399 So.2d 1050 (Fla.2d DCA 1981). An exception to the impact rule has long existed, however, where the defendant’s conduct goes beyond simple negligence and amounts to willful, wanton, malicious conduct, the type of conduct which would justify an award of punitive damages. Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950).

In the instant case, the trial court concluded that the AFGE’s conduct, through the actions of Mudgett, was such that malice could be imputed. Thereby, the court found that the exception to the impact rule applied. We disagree.

The conduct complained of by DeGrio was Mudgett’s failure to appear at the September 9, 1976 job termination hearing and his subsequent failure to explain his absence in writing to the hearing officer resulting in no hearing ever being held. We find, as a matter of law, that these actions do not justify the imputation of malice. A simple failure to appear at a hearing and adequately represent one was certainly not the type of conduct the court had in mind when it created the malicious conduct exception to the impact rule. See Kirksey (malicious conduct existed when, without authority, undertaker took body of five-year-old and embalmed it, and then refused to turn it over to the mother until she paid him $50, holding the body as security); Korbin v. Berlin, 177 So.2d 551 (Fla. 3d DCA 1965), cert. denied, 183 So.2d 835 (Fla.1966) (malicious conduct present when defendant approached six-year-old girl and told her that her mother had stolen another woman’s husband and was sleeping with a man in her room and that God was going to punish them, knowing that the statements were false). Cf. Singleton v. Foreman, 435 F.2d 962 (5th Cir.1970) (attorney acted maliciously toward client when he “exploded into a torrent of abuse” at client when she indicated a desire to settle her divorce action, refused to allow her to settle, and threatened to ruin both the client and her husband; the attorney had also taken the client’s jewelry and attempted to take her coat in the middle of winter in Tennessee for security for his fee); Stinson v. Feminist Women’s Health Center, Inc., 416 So.2d 1183 (Fla. 1st DCA 1982) (attorneys acted maliciously toward their clients where they “obfuscated, manipulated and deceived their clients in a tortious attempt to take all of the settlement money).

The supreme court held in Gilliam that:

[t]here may be circumstances under which one may recover for emotional or mental injuries, as when there has been a physical impact or when they are produced as a result of a deliberate and calculated act performed with the intention of producing such an injury by one knowing that such act would probably — and most likely — produce such an injury, but those are not the facts in this case.

291 So.2d at 595. Likewise, those are not the facts in the present case either. Accordingly, under the present law in Florida, DeGrio may not recover damages for mental anguish or for her physical injuries resulting from emotional stress allegedly caused by Mudgett’s negligent nonappearance at the hearing. Cf. Truesdell v. Proctor, M.D., 443 So.2d 107 (Fla. 1st DCA 1983). The trial court, therefore, was in error when it awarded damages against the AFGE.

In rendering this decision, we are fully aware of the criticism lodged against Florida’s impact rule by the Florida courts, this court included. See Rivera v. Randle Eastern Ambulance Service, Inc., 446 So.2d 200, 202 n. 1 (Fla. 3d DCA 1984); Champion; Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1972), rev’d, 291 So.2d 593 (Fla.1974). There are, however, circumstances in which the impact rule does not work an unjustifiable hardship on a party. Chief Judge Reed indicated that:

there is more underlying the impact doctrine than simply problems of proof, fraudulent claims, and excessive litigation. The impact doctrine gives practical recognition to the thought that not every injury which one person may by his negligence inflict upon another should be compensated in money damages. There must be some level of harm which one should absorb without recompense as the price he pays for living in an organized society.

Stewart, 271 So.2d at 477 (dissenting opinion which was adopted by the supreme court in relevant part, 291 So.2d at 595). The circumstances of the present case may well illustrate an area where the impact rule, even if modified by the supreme court, should retain some vitality. In all fairness to DeGrio, the plaintiff in the instant case, however, we certify the following question to the supreme court as passing on a matter of great public importance:

Should Florida abrogate the “impact rule” and allow recovery for the physical consequences resulting from mental or emotional stress caused by a negligent omission on the part of a defendant in the absence of both physical impact upon the plaintiff and malicious conduct by the defendant?

Because we find Florida’s impact rule to be dispositive of this case under present law, we find it unnecessary to consider the other points raised by the AFGE. Accordingly, the judgment under review is reversed.

JORGENSON, Judge,

concurring in part, dissenting in part.

Because bound by the still present impact rule, I concur in the majority’s result. I respectfully dissent from that portion of the opinion that concludes that the impact rule should retain some vitality.

Although I agree that circumstances may exist “in which the impact rule does not work an unjustifiable hardship on a party,” those circumstances exist, if at all, by mere chance, perhaps of proximate cause, but not by the intent and logic of the rule itself. Surely “[t]here must be some level of harm which one should absorb without recompense as the price he pays for living in an organized society,” but an arbitrary rule which requires the presence of the physical in a legal action premised on damage to one’s emotions is a blunt and brutal device indeed for determining, in a given case, just what that acceptable level is.

If I have not made it sufficiently clear in the past, see Rivera v. Randle Eastern Ambulance Service, Inc., 446 So.2d 200, 202 n. 1 (Fla.3d DCA 1984), I now join Judge Daniel Pearson in expressly stating that the impact rule should be forever abolished and replaced by some more enlightened rule, see National Car Rental System v. Bostic, 423 So.2d 915 (Fla.3d DCA 1982) (Daniel Pearson, J., concurring specially), review denied mem., 436 So.2d 97, 99 (Fla.1983).

I join in the certification of the question to the supreme court in the fervent hope that it will be answered in the affirmative.

      . After due consideration, we have rejected the AFGE's argument that the duty involved here was a duty of fair representation. We note, however, that even if that duty were involved, this would not necessarily have divested the trial court of jurisdiction. See Vaca. Cf. Farmer v. United Bhd. of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) (state court had jurisdiction over case involving intentional infliction of emotional distress despite some overlap with federal labor policy).

      . We note that this case is factually distinguishable from those in which the courts have previously seen fit to certify questions to the supreme court concerning the impact rule. These other cases have involved automobile accidents resulting in deaths to close relatives of the plaintiffs; the seeing of these deaths allegedly causing injuries to the plaintiffs. See Cadillac; Champion.


author: CAMPBELL, Judge.

text:
    E.J. SALCINES, State Attorney Hillsborough County, Florida, Appellant/Respondent, v. TAMPA TELEVISION, d/b/a WXFL-TV, and The Tribune Company, Appellees/Petitioners. E.J. SALCINES, State Attorney, Hillsborough County, Florida, Appellant/Respondent, v. STATE ex rel. WTSP-TV, INC., Appellees/Petitioners. E.J. SALCINES, State Attorney, Hillsborough County, Florida, Appellant/Respondent, v. GAYLORD BROADCASTING COMPANY, d/b/a Television Station WTVT-Channel 13, Appellees/Petitioners.
    No. 84-1138.
    District Court of Appeal of Florida, Second District.
    July 18, 1984.
    Rehearing Denied Aug. 24, 1984.

      Claire L. Cours and Darrell D. Dirks, Asst. State Attys., Tampa, for appellant/ respondent.
    Gregg D. Thomas and Mike Piscitelli of Holland & Knight, Tampa, for appel-lees/petitioners Tampa Television, Inc. and The Tribune Co.
    James D. Whittemore of Whittemore & Campbell, P.A., St. Petersburg, for appel-lees/petitioners WTSP-TV, Inc.
    Gregory G. Jones and Robert L. Ciotti of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellees/petition-ers Gaylord Broadcasting Co.
   CAMPBELL, Judge.

Appellant, E.J. Salcines, State Attorney, Hillsborough County, Florida, seeks review of the order of the Circuit Court of the Thirteenth Judicial Circuit which granted appellees’ petitions for writs of mandamus. The order granting the writs ordered appellant to allow appellees access to a subpoena of the United States District Court, Middle District of Florida, Tampa Division, which commanded Julio Sanchez, as Custodian of Records for the Hillsborough County State Attorney’s Office to appear before the Federal grand jury and produce certain records pertaining to certain named individuals. We reverse and quash the order of the trial court which granted the writs.

In his argument on this appeal, appellant advances three points upon which he urges reversal:

I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE SUBPOENA SOUGHT BY AP-PELLEES/PETITIONERS IS A PUBLIC RECORD UNDER THE FLORIDA PUBLIC RECORDS ACT?
II.WHETHER THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN ADEQUATE IN CAMERA HEARING MANDATED BY THE FLORIDA PUBLIC RECORDS ACT?
III.WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE EXEMPTIONS STATED IN SECTION 119.07(3)(d), (e), (f) and (g), FLORIDA STATUTES, DO NOT APPLY TO THE SUBPOENA IN THIS CASE?

Because we determine that the subpoena comes within the specific exemption of section 119.07(3)(e), Florida Statutes (1983), as argued in appellant’s point III, we are not required to decide point I, and point II is by our decision rendered moot.

In the proceeding below, appellant offered to testify ex parte and in camera before the trial judge in order to explain how the requested subpoena came within the exemptions of section 119.07(3). Appel-lees objected and the trial court concluded that to do so would have been improper. Appellant concluded that to testify in open court or in camera with appellees' counsel present, would violate the very exemptions he sought to protect.

We are inclined to agree, under the facts of this case, that to testify openly would disclose the information exempted by statute. The trial judge, in the order appealed from, stated he had evaluated the exemptions allowed in section 119.07(3)(d), (e), (f) and (g), and found no basis for the asserted positions. We find this to be error. The requested subpoena, on its face, requests the production of two categories of documents. The first category names individuals that either by the very wording of the subpoena were identified as confidential informants, or were at least purported to be so by the subpoena. The second category relates to documents in connection with an individual whom the subpoena, on its face, identifies as a possible source of criminal intelligence or investigative information. Thus, because the subpoena, on its face, identifies or purports to identify confidential informants or sources, it was not necessary that the trial judge receive testimony to determine that the exemption of section 119.07(3)(e) is applicable to the subpoena. Section 119.-07(3)(e) provides that “[a]ny information revealing the identity of confidential informants or sources is exempt from the provisions of subsection (1).”

We emphasize our conclusion that the subpoena, in and of itself, reveals this information because we perceive that in many circumstances it might require testimony to establish the application of the exemptions. We also point out that this was not a criminal proceeding where due process requirements might dictate the disclosure to a defendant of the identity of a confidential informant as contemplated and discussed in cases such as Treverrow v. State, 194 So.2d 250 (Fla.1967); Munford v. State, 343 So.2d 67 (Fla. 2d DCA 1977), reversed on other grounds, 357 So.2d 706 (Fla.1978); and Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).

In considering the exemptions granted in section 119.07(3)(e), we have concluded that neither the statute nor case law dictates that the exemptions from disclosure relate to confidential informants or sources who are currently being used as such, or whose identity has not previously been disclosed. We therefore conclude that it matters not that the informants or sources are no longer active or may have, through other sources, been identified as such. Section 119.07(3)(e) applies the exemptions to any information revealing identity. It does not specify not previously identified, nor current “confidential informants or sources.”

Finally, for the purposes of this decision, we have assumed without deciding that the subpoena is a public record under chapter 119, Florida Statutes (1983).

We therefore reverse and quash the order of the trial court which granted appel-lees’ petitions for writs of mandamus.

SCHEB, A.C.J., and SCHOONOVER, J., concur.