author: McDonald, judge. EHRLICH, Judge, SHAW, Judge,

text:
    Eugene HOLLY, M.D., Petitioner, v. Albert W. AULD, M.D., Respondent. Hubert L. ROSOMOFF, M.D., and Albert Ehlert, M.D., Petitioners, v. Albert W. AULD, M.D., Respondent.
    Nos. 62785, 62778.
    Supreme Court of Florida.
    May 3, 1984.
    Marjorie Gadarian Graham of Jones & Foster, West Palm Beach, for Eugene Holly, M.D.
    Michael B. Davis of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for Hubert L. Rosomoff, M.D.
    Kent S. Pratt of Cibula, Gaunt & Pratt, West Palm Beach, for Albert Ehlert, M.D.
    Stephen Cahen, Miami, and Edna L. Caruso, West Palm Beach, for respondent.
    Emil C. Marquardt, Jr. of McMullen, Everett, Logan, Marquardt & Cline, Clear-water, for Florida Hospital Association and Florida Medical Association, amicus curiae.
    Claude H. Tison, Jr. and William B. Taylor, IV of MacFarlane, Ferguson, Allison & Kelly, Tampa, for Florida Dental Association, amicus curiae.
   McDonald, judge.

These two cases, seeking review of the same district court opinion and now consolidated, have been certified to us by the Fourth District Court of Appeal as involving the following question of great public importance:

Is the discovery privilege set out in section 768.40(4), Florida Statutes, limited to civil actions against providers of health care services based on medical malpractice?

Auld v. Holly, 418 So.2d 1020, 1027 (Fla. 4th DCA 1982). We have jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We answer the certified question in the negative, finding that the discovery privilege of section 768.40(4) is not so limited, and we therefore quash that portion of the district court’s opinion holding to the contrary.

The plaintiff below, Dr. Auld, applied for staff privileges at Good Samaritan Hospital in West Palm Beach. He signed a release relieving from liability hospital representatives and persons furnishing information concerning his application to the hospital. Pursuant to hospital rules, Dr. Holly, chief of neuro-surgery at Good Samaritan and one of the petitioners here, interviewed Auld. Following the interview Holly contacted a number of physicians, including Dr. Rosomoff and two other petitioners, to verify information given by Auld. Holly then submitted a report to the hospital’s credentials committee. Incorporating information given by the other petitioners, Holly’s report noted, inter alia, that Auld had “apparently” done unnecessary surgical procedures and had provided inadequate postoperative care to patients. The credentials committee denied Auld’s application.

Auld then filed suit against the four petitioners, alleging that their statements had resulted in his denial of staff privileges and loss of reputation, referrals, patients, and fees. Auld sought discovery of the credential committee’s records and sought to examine witnesses concerning the denial of staff privileges. He alleged such discovery was necessary to refute the petitioners’ claim that the denial was based upon reasons other than the allegedly defamatory statements made about Auld by the petitioners. The trial court held that section 768.40(4), Florida Statutes (1977), barred such discovery. The jury in the defamation action returned a special verdict finding that the allegedly defamatory remarks had been made but that they did not “tend to expose the plaintiff to hatred, ridicule, or contempt or tend to injure the plaintiff in his profession.” The jury made no findings as to whether the statements were true or privileged. The court entered judgment in accordance with the verdict.

On appeal the fourth district reversed and remanded. It found the discovery privilege set forth in section 768.40(4) limited to civil actions against providers of health services based on medical malpractice and then certified its decision to this Court. The district court began its analysis of the question subsequently certified to this court “by noting that almost all of the provisions of Section 768.40, Florida Statutes (1981), are ambiguous.” 418 So.2d at 1023. In particular, the district court found subsection (4), providing medical review committees with a limited privilege against discovery in civil actions, to be “fairly susceptible to different constructions.” Id. at 1025. From this analytical starting point, the district court embarked on a search for the real legislative intent behind section 768.40, eventually concluding that the privilege contained therein is applicable only to medical malpractice actions. We disagree with that conclusion.

Florida ease law contains a plethora of rules and extrinsic aids to guide courts in their efforts to discern legislative intent from ambiguously worded statutes. However,

[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.

A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (1931). See also Carson v. Miller, 370 So.2d 10 (Fla.1979); Ross v. Gore, 48 So.2d 412 (Fla.1950). It has also been accurately stated that courts of this state are

without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.

American Bankers Life Assurance Company of Florida v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) (emphasis added). It is also true that a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion. Johnson v. Presbyterian Homes of Synod of Florida, Inc., 239 So.2d 256 (Fla.1970). Such a departure from the letter of the statute, however, “is sanctioned by the courts only when there are cogent reasons for believing that the letter [of the law] does not accurately disclose the [legislative] intent.” State ex rel. Hanbury v. Tunnicliffe, 98 Fla. 731, 735, 124 So. 279, 281 (1929).

The district court conceded that it was “arguable” that Dr. Auld sued Dr. Holly for a matter that was the subject of review and evaluation by the credentials committee, thus making the discovery privilege of section 768.40(4) applicable. 418 So.2d at 1025. The court went on, however, to reason that the policy in favor of broad discovery compelled a narrow construction of any statute which limited a litigant’s right to discovery. Id. There are, however, substantial legislative policy reasons to restrict discovery of hospitals’ committee proceedings and it is not the court’s duty'or prerogative to modify or shade clearly expressed legislative intent in order to uphold a policy favored by the court. See McDonald v. Roland, 65 So.2d 12 (Fla.1953).

Subsection (4) of what is now section 768.40 was enacted as chapter 73-50, Laws of Florida. The preamble and language of that enactment readily reveal the legislature’s intent and its policy reasons. In an effort to control the escalating cost of health care in the state, the legislature deemed it wise to encourage a degree of self-regulation by the medical profession through peer review and evaluation. The legislature also recognized that meaningful peer review would not be possible without a limited guarantee of confidentiality for the information and opinions elicited from physicians regarding the competence of their colleagues.

It is apparent that the need for confidentiality is as great when a credentials committee attempts to elicit doctors’ honest opinions about one of their colleagues for purposes of determining fitness for staff privileges as when attempting to determine whether the practice of a doctor on the staff meets the standards of the medical community. A doctor questioned by a review committee would reasonably be just as reluctant to make statements, however truthful or justifiable, which might form the basis of a defamation action against him as he would be to proffer opinions which could be used against a colleague in a malpractice suit. The discovery privilege of subsection (4) was clearly designed to provide that degree of confidentiality necessary for the full, frank medical peer evaluation which the legislature sought to encourage. Neither the language of the statute, nor the legislative intent discernable therefrom, admits of an interpretation which would limit the discovery privilege to medical malpractice actions and would preclude its application to defamation actions.

Inevitably, such a discovery privilege will impinge upon the rights of some civil litigants to discovery of information which might be helpful, or even essential, to their causes. We must assume that the legislature balanced this potential detriment against the potential for health care cost containment offered by effective self-policing by the medical community and found the latter to be of greater weight. It is precisely this sort of policy judgment which is exclusively the province of the legislature rather than the courts.

We conclude that the discovery privilege provided in section 768.40(4) is not limited to medical malpractice actions and, in fact, includes defamation actions arising out of the matters which are the subject of evaluation and review by hospital credentials committees. The ruling of the trial court in this case, precluding Dr. Auld from obtaining discovery of the records of Good Samaritan Hospital’s Credentials Committee and refusing to allow Dr. Auld to examine witnesses concerning the committee’s denial of his application for staff privileges, was, therefore, correct. That portion of the opinion of the Fourth District Court of Appeal holding to the contrary is quashed.

It is so ordered.

ALDERMAN, C.J., BOYD and OVERTON, JJ., concur.

EHRLICH, J., dissents with an opinion, in which ADKINS, J., concurs.

SHAW, J., dissents with an opinion, in which ADKINS, J., concurs.

EHRLICH, Judge,

dissenting.

Prior to oral argument on this case, the Court received notice that the parties had reached a settlement and that the plaintiff below, Dr. Auld, intended to dismiss the suit. Therefore, his attorney filed a suggestion of mootness and neither filed a brief in opposition nor appeared at oral argument. The issue before the Court appears in a non-adversarial posture and we, in effect, are rendering an advisory opinion. While appellants’ position was fully briefed and persuasively argued, the settlement has had the effect of “spiking the guns” of the opposition. The question is certified as being one of great public importance, but we have heard from only one segment of the public.

This Court does not render advisory opinions except to the Governor in the limited situation provided in article IV, section 1(c) of the Florida Constitution. I would therefore have relinquished jurisdiction on the suggestion of mootness.

ADKINS, J., concurs.

SHAW, Judge,

dissenting.

On the question of mootness, the respondent has withdrawn the voluntary dismissal of his action against petitioner Holly, thus negating his earlier suggestion of mootness.

The majority opines that the legislature intended, by subsection 768.40(4), Florida Statutes (1977), to absolutely bar discovery of the proceedings and records of medical review committees in any civil action. In my view, the majority opinion is unconvincing for two reasons. First, the opinion does not address the fact that subsection 768.40(2) grants only a qualified privilege against suit and is not applicable if the committee member acts with malice or fraud. Thus, the privilege does not prohibit an action in defamation. This qualification placed on the privilege against suit is merely a codification of the rule that

[w]hen a matter which otherwise would be a qualifiedly privileged communication is published falsely, fraudulently and with express malice and intent to injure ..., the communication loses its quali-fiedly privileged character and the parties lay themselves liable to a suit for damages in an action of libel or slander. However, the malice ... must be actual and not merely inferred from falsity, etc.

Loeb v. Geronemus, 66 So.2d 241, 244 (Fla.1953) (citations omitted). Thus, we have a clearly expressed legislative intent in subsection 768.40(2) that malice or fraud is redressable by civil action. The majority interpretation of subsection 768.40(4) creates the illogical result of a plaintiff being permitted to bring a cause of action but being absolutely prohibited from conducting any discovery of the evidence essential to his cause of action. This interpretation is contrary to rules of statutory interpretation that “[i]t should never be presumed that the legislature intended to enact purposeless and therefore useless, legislation” and “[n]o literal interpretation should be given which leads to an unreasonable or ridiculous conclusion,” Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962), and Johnson v. Presbyterian Homes of the Synod, 239 So.2d 256, 263 (Fla.1970), respectively. The majority interpretation also violates the cardinal rules of statutory interpretation which say that statutes should be read in pari materia and all provisions should be given effect where possible. In re Opinion to the Governor, 60 So.2d 321, 324 (Fla.1952); Ideal Farms Drainage District v. Certain Lands, 154 Fla. 554, 19 So.2d 234, 239 (1944). Under the majority’s literal interpretation of subsection 768.40(4), we are faced not merely with an ambiguity but with a direct contradiction between subsections (2) and (4) of section 768.40. Is it likely that the legislature intended to give committee members an unchecked license to commit acts of fraud and malice? I believe not. This would be contrary to the well-established rule that malice or fraud strips an otherwise privileged communication of its immunity and would raise serious constitutional questions which I address below.

In subsection 768.40(2), the legislature clearly revealed its awareness that tortuous conduct might occur during committee proceedings and its intent that malicious or fraudulent torts be redressable through civil actions. Reading the two sections together, I conclude that a reasonable interpretation is that the discovery privilege in subsection (4) is not an absolute privilege, but should be read to parallel the qualified privilege contained in subsection (2). As so interpreted, the legislative intent of not shielding fraud or malice would be effectuated while still giving the committee proceedings and records a qualified discovery privilege. If overbroad discovery is sought, the usual remedy of a motion for a protective order is available and could provide the committee members and witnesses the protection the majority seeks to provide by a statutory interpretation, which makes prosecution of a legitimate cause of action impossible.

The second reason for my finding the majority interpretation unconvincing is that the interpretation, as applied, bars access to the courts for redress of injury in violation of article I, section 21, Florida Constitution. The majority does not address the issue of whether the statute, as interpreted and applied, is constitutional. I fully recognize that a statute is presumptively valid and, ordinarily, a court will not raise or voluntarily pass upon the constitutionality of a statute where a party has not raised the issue. Mott v. Cochran, 117 So.2d 408 (Fla.1960). Indisputably, the issue of constitutionality has not been raised because, as Justice Ehrlich’s dissent points out, respondent has chosen not to file a brief in support of the district court decision, and we have not been presented with an adversarial exposition of the issues. Inasmuch as our jurisdiction is based on the district court’s certification of a question of great importance and the ultimate question for this Court is the correctness of the district court decision, not its reasons therefor, I consider it appropriate and necessary to examine any alternative legal theories which support the decision below. Congregation Temple De Hirsch v. Aronson, 128 So.2d 585 (Fla.1961).

The effect of the majority opinion’s interpretation of the statute is to grant members of medical review committees, and others who testify before or submit recommendations to the committees, an unchecked license to defame applicants for medical staff privileges during committee proceedings by denying such applicants access to the courts for the redress of such defamation. Unlike the district court opinion, the majority opinion fails to recognize the crucial distinction between a suit on medical malpractice which occurs outside the committee proceedings and a suit on defamation which occurs within the committee proceedings. A suit on medical malpractice can be successfully prosecuted, if meritorious, by discovery of events which are not protected by the committee’s privilege, as subsection 768.40(4), Florida Statutes (1977), itself recognizes:

However, information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.

By contrast, a suit on defamation which occurs during the committee proceedings can be prosecuted only if discovery of the committee proceedings is permitted. To deny discovery under these circumstances is to deny access to the courts for redress of injury.

On the theory that a legislature pledged to obey the constitution would not knowingly enact an unconstitutional measure, it is well established that courts will treat statutes as presumptively valid. Wright v. Board of Public Instruction, 48 So.2d 912, 914 (Fla.1950). In order to support and protect this rule of presumptive constitutional validity, well-established rules of statutory interpretation have evolved: if there is any reasonable basis for doing so, courts will construe a statute so as to uphold it rather than invalidate it (Sarasota County v. Barg, 302 So.2d 737, 741 (Fla.1974), citing Rich v. Ryals, 212 So.2d 641 (Fla.1968)); a statute will not be given its broadest meaning if to do so renders the statute of doubtful constitutionality (Olds v. State ex rel. Cole, 101 Fla. 218, 221, 133 So. 641, 643 (1931)); and, if a statute admits of two interpretations, a court will adopt that which leads to constitutionality (Redwing Carriers, Inc. v. Mason, 177 So.2d 465, 467 (Fla.1965)). By applying these well-established rules to the statute at hand, I conclude that subsection 768.-40(4), Florida Statutes (1977), should not be read to bar discovery, or introduction into evidence, of committee proceedings and records when the civil cause of action is based on malice or fraud occurring during the committee proceedings. I have outlined above my reasons for believing that the statute can be interpreted so as to give effect to the legislative intent. This interpretation will also protect the statute from unconstitutionality.

The district court decision reconciles the contradiction between subsections (2) and (4) of section 768.40, Florida Statutes (1977), and obviates the unconstitutional denial of access to the courts for the redress of injury. I would not go so far as the district court does in holding that subsection (4) applies only to medical malpractice suits, but I would hold that it does not bar discovery of committee proceedings and records, or their introduction into evidence, when the civil action is based on malice or fraud occurring during the committee proceedings.

I respectfully dissent.

ADKINS, J., concurs.

      . Auld has settled with the petitioners, and his attorney has filed a suggestion of mootness with this Court. It is well settled that mootness does not destroy an appellate court’s jurisdiction, however, when the questions raised are of great public importance or are likely to recur. Pace v. King, 38 So.2d 823 (Fla.1949); Tau Alpha Holding Corp. v. Board of Adjustments, 126 Fla. 858, 171 So. 819 (1937). This case meets these requirements. The district court properly certified its question as being one of great public importance, and this situation will occur again. Moreover, the district court’s incorrect resolution of the question will only cause more problems in the future.

      . Ch. 73-50 reads as follows:
      CHAPTER 73-50
      House Bill No. 1104
      AN ACT relating to medical review committees; renumbering section 458.20, Florida Statutes, as section 768.131, Florida Statutes; amending subsection (1) of said section and adding subsection (4), exempting proceedings of medical review committees from discovery except under certain conditions; providing an effective date.
      WHEREAS, the Legislature is deeply concerned over the rising costs of health insurance which are directly related to the costs of hospital and medical services and increasing problems in the area of medical malpractice insurance; and
      WHEREAS, the various health services, professional societies and associations in the State of Florida are promulgating programs and establishing committees for the purpose of reviewing standards of care, utilization and expense in the rendering of health services in. an effort to deter or eliminate some of the causes of the increased claims and costs of providing health services and to provide a statistical base for further analysis, study and recommendations; and
      WHEREAS, the Legislature recognizes the advisability of immunity for peer review committees so that the medical profession can explore overutilization of medical services, improper charging for medical services, and acts of malpractice in order that it can have better control over its members and experience rate its physicians for malpractice coverage; NOW, THEREFORE,

        Be It Enacted by the Legislature of the State of Florida:

        Section 1. Section 458.20 is renumbered section 768.131, Florida Statutes, and subsection (1) of said section is amended and subsection (4) is added to read:

        768.131 Medical review committee, immunity from liability.—
      (1) As used in this section, the term "medical review committee" or "committee” shall mean a committee of a state or local professional society or of a medical staff of a licensed hospital or nursing home, provided the medical staff operates pursuant to written bylaws that have been approved by the governing board of the hospital or nursing home, which is formed to evaluate and improve the quality of health care rendered by providers of health service or to determine that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care; or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.

        (4) The proceedings and records of committees as described in the preceding section shall not be subject to discovery or introduction into evidence in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof; provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.

      Section 2. This act shall take effect upon becoming law.
      Approved by the Governor May 21, 1973.
      Filed in Office Secretary of State May 22, 1973.

      . We are reminded by amicus that the Florida legislature is not alone in recognizing the need for effective peer review and evaluation within the medical profession. Rules of the Joint Commission on the Accreditation of Hospitals, as well as federal law and regulations, require that hospitals have a medical staff which has an organized and active program for, inter alia, reviewing the qualifications of those seeking appointment or reappointment to the hospital staff.

      . "Malice, either actual or implied, ... [is] the gist of every actionable libel. Without malice, ... no tort could result from the publication of a defamatory statement.” Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 238 (1933).

      . By barring access to the courts, the majority interpretation also nullifies any constitutional, statutory, or common-law right of applicants which requires access to the courts for vindication. For example, rights guaranteed under art. I, § 2, Fla. Const. Note also that the absolute privilege against discovery, which the majority grants medical review committees, is greater even than that afforded the press by the first amendment to the United States Constitution. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).

      . The district court did not address the constitutionality of the statute. I suspect, however, that it recognized the potential access to courts issue but obviated the issue by its interpretation of the statute.


source: Caselaw Access Project

author: ADKINS, Justice.

license: Public Domain

text:
    Kenneth R. CATE, et al., Appellants/Petitioners, v. Gordon G. OLDHAM, Jr., et al., Appellees/Respondents.
    No. 63775.
    Supreme Court of Florida.
    May 3, 1984.
    Dennis J. Wall of Rumberger, Kirk, Caldwell, Cabaniss & Burke, Orlando, for appellants/petitioners.
    David R. Best, and John M. Robertson of Robertson, Williams, Duane, Lewis & Ran-son, Orlando, for appellees/respondents.
   ADKINS, Justice.

This cause is before us on discretionary review of two questions certified to this Court by the Eleventh Circuit Court of Appeals. We have jurisdiction. Art. V, § 3(b)(6), Fla.Const. The question's certified by the federal appellate court are:

1) Under the common law of Florida, may a state official who has been sued in his official capacity for alleged negligence in the exercise of his official duties, maintain an action for malicious prosecution against plaintiffs in the negligence action?
2) If the answer is “yes”, what is the standard of malice that the state official/plaintiff must prove in order to prevail on the merits of the malicious prosecution action? How does this standard compare with the level of malice that must be proved in malicious prosecution actions where private parties are the plaintiffs?

Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.1983).

The facts leading up to this suit are somewhat complex. Petitioner Kenneth Cate was retained by the estate of Mary Bradham to investigate the possibilities for suit on behalf of the estate against the state and respondent Gordon Oldham. Mary Bradham had died as a result of a battery committed by her estranged husband, Ernest Bradham. Cate did file a wrongful death action in the circuit court alleging that Oldham, as state attorney, had breached his duty to prosecute Ernest Bradham because he knew of Bradham’s dangerous propensities but had, nevertheless, failed to adequately prosecute and investigate Bradham. The wrongful death action resulted in a summary judgment for the state and Oldham. The result was affirmed, per curiam without opinion, by the Fifth District Court of Appeal. Russell v. State, 392 So.2d 91 (Fla. 5th DCA 1980). Attorney’s fees were then sought by the state under section 57.105, Florida Statutes (1979). The trial court awarded attorney’s fees but the district court reversed the award.

Thereafter, Oldham individually filed suit against Cate, Cate’s law firm, and Brad-ham’s estate alleging that the wrongful death action brought by those parties was a malicious prosecution action and seeking both compensatory and punitive damages. Subsequently, a suit for malicious prosecution was also filed by the state and Oldham in his capacity as state attorney, denominated as “State ex rel. Gordon G. Oldham, Jr., Plaintiff.”

Petitioners’ motions to dismiss the individual action brought by Oldham were denied by the trial court. Petitioners then filed a petition for injunctive and declaratory relief, pursuant to 42 U.S.C. § 1983, in federal district court asserting that the malicious prosecution action filed against them was a violation of their first amendment rights. On the same date petitioners also filed a petition for writ of certiorari in Florida’s Fifth District Court of Appeal from the denial of their motion to dismiss. The district court of appeal denied interlocutory relief citing Hawaiian Inn of Daytona Beach, Inc. v. Snead Construction Corp., 393 So.2d 1201 (Fla. 5th DCA 1981). In the same order the district court of appeal denied petitioners’ motion to certify the issue to this Court.

In conjunction with the petition for in-junctive and declaratory relief in the federal court the petitioners requested a temporary restraining order and applied for a preliminary injunction. The court denied both requests. The federal district court also dismissed with prejudice the petition for injunction to prevent the suit by the state and Oldham in his official capacity on the basis that the state was not a “person” within the meaning of 42 U.S.C. § 1983. Petitioners then took an appeal to the United States Eleventh Circuit Court of Appeal.

On June 2, 1983, the Eleventh Circuit Court of Appeals affirmed the dismissal of the petitioner’s section 1983 action under the broad immunity provided the states by the eleventh amendment to the United States Constitution rejecting the application of either the Younger or Pullman abstention doctrines to this case. The court also certified the questions being presented to this Court.

We answer the first question certified in the negative.

Section 2.01 of the Florida Statutes (1981) declares that the common and statute laws of England which are of a general nature, down to July 4,1776, are in force in this state. The only exception provided is if the statute or common law is inconsistent with the United States Constitution or laws of the United States or Florida. Since there is an absence of any statutory law on the point addressed in this question, it is therefore proper that we examine the common law cause of action for malicious prosecution.

The common law required a showing of special damage before the action for malicious prosecution could lie. The policy behind this determination was an Englishman's right to petition his fellow citizens for redress of grievances against individuals generally. Parker v. Langley, 93 Eng.Rep. 293, 294-97 (K.B.1714). In Parker v. Langley the court stated:

The applying in a civil action to a Court of Justice for satisfaction or redress has been so much favoured, that no action has ever been allowed against a plaintiff for such suit singly and directly, on pretence of its being false and malicious.

Id. at 294.

The fact that pre-revolutionary judges based their disfavor of malicious prosecution on the right to petition generally is of dispositive significance in this proceeding. The right to petition government specifically, for redress of grievances against government, was separately and expressly protected by Parliament. By statute, except for the crimes of riot and unlawful assembly, no other criminal sanction and no form of action could ever be imposed or brought because of a previous petition to the government for redress of a grievance against any part of government. See 1 W. Blackstone, Commentaries 138-39. The right to petition was so important a part of the constitutional scheme that the royal charters of each of the American colonies guaranteed this right. R. Bailey, Popular Influence Upon Public Policy: Petitioning in Eighteenth-Century Virginia 13 (1979). So strongly protected was the exercise of this right that judges in colonial times were reprimanded and fined for inquiring into the contents of petitions against government and for rejecting those they deemed to be false. Id. at 39-41.

At the time the American Bill of Rights was adopted the English constitution permitted only two governmental restrictions on the right to petition. The first restriction was a “time, place and manner” limitation by Parliament on the number of persons permitted to subscribe to a given petition. The only other permissible governmental restriction was by prosecution for the offenses of riot or tumult when great numbers of persons rioted after presenting a petition to the king or Parliament.

The presentation of a complaint to government concerning its conduct is now expressly held central to the right to petition that government for the redress of grievances against it. See, e.g., California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972); Mid-Texas Communications Systems, Inc. v. American Telephone & Telegraph. Co., 615 F.2d 1372, 1382 (5th Cir.), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980). No Anglo-Commonwealth case has been cited by either party in this case in which government has been permitted, or even attempted, to sue its subjects for malicious prosecution. We find only two United States cases which have directly addressed this issue.

In City of Long Beach v. Bozek, 31 Cal.3d 527, 645 P.2d 137, 183 Cal.Rptr. 86 (1982), vacated, 459 U.S. 1095, 103 S.Ct. 712, 74 L.Ed.2d 943 (1983), on remand, 33 Cal.3d 727, 661 P.2d 1072, 190 Cal.Rptr. 918 (1983) (prior opinion reiterated in its entirety), the Supreme Court of California held that governmental entities may not maintain actions for malicious prosecution against those who have previously sued such entities without success. First, the court concluded in Bozek that the plaintiffs suit against the City of Long Beach and two city police officers for false imprisonment, false arrest, negligent hiring, assault and battery was a protected exercise of the right of petition. The court also found that the bringing of suits against the government is absolutely privileged. The court rejected the city’s “most persuasive argument” that malicious prosecution actions must be allowed in order to compensate municipalities for expenses incurred in defending against baseless suits and to deter the proliferation of such suits and concluded that new statutes allowing award of attorney’s fees as costs was a preferable remedy.

The only other case which faced this issue was Board of Education v. Marting, 7 Ohio Misc. 64, 217 N.E.2d 712 (Ct.C.P. Madison County 1966). In Marting a three-judge panel of the Court of Common Pleas held that a board of education lacked the legal capacity, power, and authority to sue citizens for malicious prosecution. The judges’ unanimous holding was based in part on constitutional considerations and in part on historical analysis. The court stated:

Permitting a Board to sue a taxpayer, who is denied judicial relief in a prior case, for malicious prosecution, in an unlimited amount can only result in self-censorhip. Potential critics of official conduct would be foreclosed from bringing suit because of doubt that they would be permitted to, or could prove the facts, or for fear of the expense for having failed to do so. Any judicial construction or statutory provision prohibiting or unduly restricting this right would contravene the First and Fourteenth Amendments to the Federal Constitution ....
Malicious prosecution as an action at common law was to protect the individual from unjustifiable litigation in the protection of the interests of (1) damage to reputation, (2) putting in jeopardy life, limb or liberty, and (3) damage to property, as for example expenditure of money to defend oneself of criminal charges.

217 N.E.2d at 717 (citations omitted).

There simply is no historical basis for a state officer to retaliate with a malicious prosecution action when he has been sued in his official capacity. Malicious prosecution is considered a personal tort. Tatum Brothers Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926). The gravamen of the action is injury to character. Tidwell v. Witherspoon, 21 Fla. 359, 360-61 (1885).

At common law successful defendants could either tax costs and fees in the original action, or they could sue for malicious prosecution upon the basis of those losses; they could not do both. Parker v. Langley, 93 Eng.Rep. at 297. There being no Florida decision or statute to the contrary, the common law rule precludes such an attempt at double recovery here. A government official sued only in his or her official capacity, and from whom no relief is sought which would run against his or her personal, as opposed to governmental behavior or finances, can claim no greater right to seek greater sanctions. He or she has personally suffered no loss which is not redressable through his or her application for redress in the suit in which he or she is originally sued. It is reasonable to compel such officials to seek such redress in the suit in which they are named defendants in their official capacity.

We have concluded that the common law of Florida does not allow a state official who has been sued in his official capacity to maintain an action for malicious prosecution. Since we have responded in the negative it is unnecessary for us to answer the second question certified to us.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Robert D. HURTH, Respondent.
    No. 65045.
    Supreme Court of Florida.
    May 3, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and Richard B. Liss, Bar Counsel, Fort Lauderdale, for complainant.
    Robert D. Hurth, in pro. per.
   PER CURIAM.

This matter is before the Court on Petition for approval of conditional guilty plea for consent judgment and entry of final order of discipline to violations of Disciplinary Rules 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 2-102(C), 5-101(A), 5-105, 6-101(A)(3), 7-101(A)(3) and 9-102 of the Code of Professional Responsibility and ar-tide XI, rules 11.02(3)(a) and 11.02(4) of the Integration Rule of The Florida Bar. We approve the petition, and we hereby suspend respondent, Robert D. Hurth, for a period of three (3) years and continuing thereafter until proof of rehabilitation is established through reinstatement proceedings as provided by the Integration Rule of The Florida Bar. Respondent’s suspension shall be effective June 4, 1984, thereby giving respondent thirty (30) days to close out his practice and take the necessary steps to protect his clients.

Costs in the amount of $4,273.95 are hereby taxed against the respondent.

It is so ordered.

ADKINS, Acting C.J., and BOYD, OV-ERTON, MCDONALD and EHRLICH, JJ., concur.


text:
    The STATE of Florida, Appellant, v. R.A., a juvenile, Appellee.
    No. 83-494.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1984.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst., Atty. Gen., for appellant.
    No appearance for appellee.
    Before SCHWARTZ, C.J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we dismiss the State’s appeal from an order of dismissal and suppression and decline to treat the proceeding as a petition for certio-rari. We certify direct conflict with State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983) and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA 1982), rev. denied, 419 So.2d 1201 (Fla.1982) and that this decision passes upon the following question of great public importance:

Does the State have the authority to file appeals in juvenile cases, and, if not, may this court review by certiorari either an order dismissing a count of a petition for delinquency or one suppressing evidence in such a case?


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

text:
    Gerald GOLUB, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Florida Real Estate Commission, Appellee.
    No. 83-65.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 1984.
    Rehearing Denied May 23, 1984.

      Robert G. Petree and Robert 0. Marks of Bornstein, Petree, Cooper & Marks, Orlando, for appellant.
    Bruce D. Lamb, Tallahassee, for appel-lee.
   COWART, Judge.

This case involves how section 475.-25(1)(d), Florida Statutes (1981), which requires a real estate licensee to account and deliver held property, applies to a real estate broker who withholds a commission due a salesman and holds it as a setoff against a claim for damages the broker has against the salesman.

While employed by appellant Gerald Go-lub, a real estate broker, Michael Senia, a salesman, earned part of a commission that was payable monthly. Senia left Golub’s employment and Golub retained as a setoff further commission payments due Senia claiming Senia took property belonging to Golub and that Senia had wrongfully caused Golub to suffer legal damages as to a later real estate sale. Senia complained to the Florida Department of Professional Regulation (DPR), and DPR directed Golub to send Senia and DPR an accounting of commissions due Senia. Later DPR filed an administrative complaint against Golub and a hearing examiner found Golub’s failure to give Senia or DPR an accounting or delivery of the commission due Senia violated the provisions of section 475.25(1)(d), Florida Statutes (1981), and that even if Golub had good faith reasons to not deliver Senia’s commission Golub was required to exercise one of the three escape procedures in the statute. Accordingly, DPR fined Golub $1,000 and suspended his license for 90 days and he appeals.

Our examination of the relevant statute leads us to believe that it was originally intended to protect the public from an unscrupulous licensee who failed to account for and deliver property which had come into his hands (usually as escrowed funds) and which the licensee did not own or have the legal right to retain. Cannon v. Florida Real Estate Commission, 221 So.2d 240 (Fla. 4th DCA 1969), cert. den., 226 So.2d 817 (Fla.1969), held that the statute did not apply where, as here, a broker withholds commissions from a salesperson because the broker claims a setoff against the commissions. After Cannon the legislature amended the first of the three sentences in the relevant statutory sub-section to cause it to also relate to the failure of a licensee to account or deliver to another licensee.

The first sentence of section 475.-25(1)(d) states in part that a licensee may be disciplined for failure to account or deliver, upon demand of any person entitled to such accounting and delivery, personal property which is not the licensee’s property or which he is not in law or equity entitled to retain under the circumstances. Because of the word “and” in the phrase “accounting and delivery” a violation of this statute occurs only if the person demanding the accounting or delivery was entitled to the delivery. However, the second and third sentences of this statutory sub-section provides for “escape procedures” that a licensee must utilize to avoid the accounting and delivery when the licensee “entertains doubt” as to entitlement of one demanding an accounting or when faced with conflicting demands for the property. The appealed order adopts the position that Golub was required to resort to the escape procedures or promptly provide the requested accounting. However, those sentences relating to the escape procedures relate only to conflicting claims to “escrowed property,” to which it repeatedly refers, such as was involved in Grieser v. Myers, 267 So.2d 673 (Fla. 4th DCA 1972), cert. den., 273 So.2d 766 (Fla.1973), and not to contested commission fees as is involved in this ease. See Fleischman v. Dept. of Professional Reg., 441 So.2d 1121 (Fla. 3d DCA 1983).

As it was not established that Go-lub was not legally entitled to retain the commission as a setoff it was not established that Senia was entitled to delivery of the commissions and as the commissions were not “escrowed property” Golub was not required to use one of the escape procedures. Therefore, Golub was improperly disciplined and the appealed administrative order is reversed and set aside. Once there is a judicial determination that a broker is not entitled to retain non-escrowed property then this statute is authority to discipline the broker for a failure to account and deliver the property to any person, including a salesman, who is entitled to its possession.

REVERSED.

MILLER, ROBERT P., Associate Judge, concurs.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

I respectfully dissent. In my opinion the construction of the statute by the majority serves only to defeat the obvious intent of the Legislature. As pointed out by the majority, the Legislature amended the predecessor to section 475.25(1)(d) after Cannon v. Florida Real Estate Commission, 221 So.2d 240 (Fla. 4th DCA 1969), to also relate to the failure of a licensee to account or deliver to another licensee. This subsection now reads as follows:

(1) The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:
(d) Failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible share or portion thereof, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circumstances. However, if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of the es-crowed property, or if conflicting demands have been made upon him for the escrowed property, which property he still maintains in his escrow or trust account, the licensee shall promptly notify the board of such doubts and shall promptly:
1. Request that the board issue an escrow disbursement order determining who is entitled to the escrowed property; or
2. With the consent of all parties, submit the matter to arbitration; or
3. By interpleader or otherwise, seek adjudication of the matter by a court.
If the licensee promptly employs one of the escape procedures contained herein, and if he abides by the order or judgment resulting therefrom, no administrative complaint may be filed against the licensee for failure to account for, deliver, or maintain the escrowed property....

Subsection (d) of the quoted statute provides for suspension, revocation, reprimand or fine if the board finds a licensee has failed to account or deliver at the time agreed upon or required by law.

In my view, the majority’s conclusion will emasculate the statute because all the licensee will have to do is assert that the person demanding the accounting is owed nothing. Then, the majority says, the person must secure a judicial determination that the broker is not entitled to retain non-escrowed property and only then is the statute authority to discipline the broker. To illustrate: the owner of several apartments retains a broker to supervise her property, collect the rents, and pay expenses. The broker is not heard from. The owner asks for an accounting. The broker responds saying nothing is due because the taxes, insurance, and his commission exceed the rents collected. The majority says the owner must first secure a judicial determination that she is entitled to a delivery. But, in my opinion, the failure to account constitutes a violation of the statute because clearly the owner is entitled to delivery, if the accounting reflects anything due. Obviously, if the accounting reflects nothing owed, there is no requirement to deliver. The broker’s duty under the statute is the same in either event.

I suggest that the words “accounting and delivery” must be interpreted as meaning, if, as revealed by the accounting, a delivery is due. The statute requires nothing more than what reputable brokers do as a matter of course. They account to those with whom they deal regarding funds received or disbursed.

Here, Golub refused to account to Senia. There is no doubt that they had a business association and Senia was entitled to an accounting. In my opinion, Golub was in violation of the statute. I would affirm.


text:
    The STATE of Florida, Appellant, v. J.H., a juvenile, Appellee.
    No. 83-1283.
    District Court of Appeal of Florida, Third District.
    March 27, 1984.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

On the authority of State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983) (en banc), we dismiss the State’s appeal from the trial court’s order suppressing evidence and decline to treat the unauthorized notice of appeal as a petition for writ of certiorari. We certify that this decision directly conflicts with State v. J.P.W., 433 So.2d 616 (Fla. 4th DCA 1983), and State v. W.A.M., 412 So.2d 49 (Fla. 5th DCA), rev. denied, 419 So.2d 1201 (Fla.1982). We further certify to the Supreme Court of Florida that this decision passes upon a question of great public importance, namely:

“Does the State have the authority to file plenary appeals in juvenile cases, and, if not, may this court review by certiorari an order suppressing evidence in a juvenile case?”

DANIEL S. PEARSON, Judge, concurring.

Because this court sitting en banc in State v. C.C., 449 So.2d 280 (Fla. 3d DCA 1983), has, over my dissent, decided these issues adversely to the State, I reluctantly concur in the panel’s decision.


author: COBB, Judge.

text:
    Joseph W. ASKEW, Appellant, v. COUNTY OF VOLUSIA, Appellee.
    No. 82-1687.
    District Court of Appeal of Florida, Fifth District.
    April 5, 1984.
    Rehearing Denied May 18, 1984.
    Dan R. Warren of Judge & Warren, P.A., Daytona Beach, for appellant.
    Daniel D. Eckert, Asst. County Atty., DeLand, for appellee.
   COBB, Judge.

This is an appeal from an order dismissing a complaint with prejudice for failure to comply with the notice requirements of section 768.28(6), Florida Statutes (1981).

Appellant Askew, the plaintiff below, claimed he was injured in an accident on April 13, 1979, due to Volusia County’s negligence. Askew filed an initial complaint against the lessee of the property on May 25, 1979, and added the County as a defendant by amended complaint on March 27, 1981. Askew served this complaint on the County on January 25, 1982. Pursuant to section 768.28(6), Florida Statutes (1981), Askew sent notice to the County on April 6, 1981, and to the Department of Insurance on November 17, 1981.

The County moved to dismiss the first amended complaint, alleging failure to comply with section 768.28(6). The court granted the dismissal on April 12, 1982. Askew filed a second amended complaint on April 15, 1982. The County again moved to dismiss, claiming that notice was insufficient since it was given to the County subsequent to the action being filed (March 27, 1981) and that six months had not elapsed since service to the Department of Insurance in November, 1981. The court dismissed the complaint without prejudice on June 2, 1982, giving Askew leave to amend to comply with the statutory requirements.

On May 24, 1982, Askew filed an “Original Complaint,” alleging that the notice requirements were met. The County again moved to dismiss, and the court dismissed the complaint with prejudice. It is this dismissal which is the focus of the instant appeal.

In the order dismissing the complaint, the trial court notes that the May, 1982 complaint is based on the same circumstances, and sets out the same cause of action as the other complaints previously filed. The court notes the notice given on April 6, 1981 and November 17, 1981, and after quoting the statutory provision, states:

Compliance with the foregoing provisions is a condition precedent to maintaining a suit against the County. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). In the instant case, plaintiffs exhibits show on their face that he has failed to perform the required condition precedent. Plaintiffs only attempts at giving notice were subsequent to the filing of his first amended complaint in Case No. 79-1907-CA-01-C, and were ineffective under the statute. Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978); Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla. 3d DCA 1979). Plaintiff is now unable to comply with the provisions of the statute, since more than three years have passed since April 15, 1979, the date on which plaintiff alleges his cause of action to have arisen.

Section 768.28(6), Florida Statutes (1981), provides:

An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, presents such claim in writing to the Department of Insurance within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.

This statute provides for two conditions that must be met in order to institute an action against the state: (1) the plaintiff must present the claim in writing to the agency and to the Department of Insurance within three years after the claim accrues, and (2) the Department of Insurance or agency must either deny the claim in writing or take no action within six months, either of which constitutes a final denial of the claim.

Under the statute, a party wishing to institute suit has three years from the time of the incident giving rise to the suit to file the notice with the appropriate agency. See Levine v. Dade County School Board, 442 So.2d 210 (Fla.1983). If the time for notice has passed, then the trial court has no alternative but to dismiss the complaint with prejudice. Levine. Therefore, under the statute, if notice of the incident is given on the last day, then suit could be delayed by the state’s inaction until three-and-a-half years after the incident (three years for notice plus six months for denial), thus falling within the four-year statute of limitations for negligence. See § 95.11(3)(a), Fla.Stat. (1981).

In the instant case, Askew filed his notice with the County and the Department of Insurance on April 6 and November 17, 1981, respectively. This was within the statutory three-year period, and when an additional six months had passed with no state action, the conditions precedent to the filing of the complaint were met. Here, that would have occurred on May 17, 1982. Under section 95.11(3)(a), Florida Statutes (1981), the plaintiff had until April 13,1983, to file suit. He filed within that time.

The trial court apparently felt that since the notice was given after the filing of the original complaint, it was forever ineffective. It relied on Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1368 (Fla.1979), and Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla. 3d DCA 1979), for this finding. This reliance is misplaced.

In Hutchins, suit was filed against the state without prior compliance with section 768.28(6). Notice was subsequently given to the state following the state’s motion to dismiss the complaint. The trial court held that there was an absence of jurisdiction, since the notice of claim had not been given prior to the institution of the suit. The First District held that since under certain conditions the state or its agencies might be deemed to have waived the claim notice requirement, it cannot be jurisdictional. The court saw the dismissal as correct, however, since there were no allegations of waiver or estoppel. The court stated:

We reach such result not because the trial court lacked subject matter jurisdiction of the claim, but because appellant failed to plead a compliance with F.S. 768.28(6), which is in the nature of a condition precedent and which must be plead by appellant in order to state a cause of action.

363 So.2d at 821.

In Dukanauskas, suit was filed against the County on a vehicular accident. The County filed a motion to dismiss, alleging non-compliance with the statutory notice provision prior to institution of the action. The trial court granted the motion and entered a summary judgment for the County. In that case, no attempt was ever made to comply with section 768.28(6) prior to the filing of the amended complaint and since the time for the performance of the conditions precedent (three years from the accident) had elapsed, the court affirmed the dismissal. The court noted that the Supreme Court in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022-23 (Fla.1979), allowed for leave to amend when the notice provisions were not complied with, but distinguished it from the instant case where an amendment would be futile, since three years had already elapsed.

In the instant case, the notice was properly given within the three-year time limit. The court should have either allowed an amendment of the previously-filed complaint to properly allege notice, or certainly allowed the newly-filed complaint to stand, since all the conditions precedent had then occurred and were properly alleged. The prior dismissal of the complaints does not in any way negate the previously given timely notice, and it was effective. Therefore, the order dismissing the complaint is reversed and the cause remanded for further proceedings.

We recognize that our holding herein is in conflict with the rationale of Saleh v. Watkins, 415 So.2d 858 (Fla. 5th DCA 1982), even though that case concerned section 713.06(3)(d), Florida Statutes (1981). The language of that statute and the instant statute is logically indistinguishable. For that reason, we have considered this conflict en banc, and recede from our holding in Saleh. See Commercial Carrier.

REVERSED and REMANDED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., SHARP and COWART, JJ., concur.

DAUKSCH, J., dissents without opinion.

      . The hearing on the motion to dismiss, entered on June 2, was held on May 24, with the trial court orally indicating the order it intended to render.

      . The Supreme Court in Commercial Carrier stated:
      Consequently, the performance of the condition should be alleged in the complaint in accordance with Florida Rule of Civil Procedure 1.120(c). In Cheney, there was no allegation of statutory compliance. In Commercial Carrier Corporation, it was alleged that proper notice had been given to both governmental defendants, but there was no allegation that timely written notice was given to the Department of Insurance as is also required by section 768.28(6). Nonetheless, failure of the pleadings in this regard does not call for dismissal with prejudice. In view of our holdings herein, the third-party complaint in each case should have been dismissed with leave to amend.
      371 So.2d 1022-23.

      . See Cazares v. Church of Scientology of California, 444 So.2d 442 (Fla. 5th DCA 1983).


author: DELL, Judge.

text:
    In re ESTATE OF Adeline F. BERTE, Deceased.
    No. 83-1185.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    Rehearing Denied June 6, 1984.
    W. George Allen of Law Offices of Allen & Murphy, Fort Lauderdale, for appellant Essie Mae Hill, Personal Representative of the Estate of Adeline F. Berte, Deceased.
    Kenneth R. Mikos and Theresa Bland Edwards of Friedrich, Blackwell, Mikos & Ridley, P.A., Fort Lauderdale, for appellees Louise Marzella and Marguerite Ciervo.
   DELL, Judge.

Essie Mae Hill appeals from a final order revoking probate of a will naming her as personal representative and beneficiary of Adeline F. Berte's estate. We reverse.

Adeline Berte employed the appellant as her housekeeper-maid in 1978. In April of 1981, Mrs. Berte saw Ronald Ostrow about a new will. Attorney Ostrow testified that he had never known either Mrs. Berte or appellant before that date. After speaking with Mrs. Berte, Attorney Ostrow felt that she was of sound mind and testified that she “had something in for her nieces ... she had some type of falling out from my understanding of it.” Although appellant drove Mrs. Berte to the attorney’s office, appellant was not present at the execution of the will.

The will left Mrs. Berte’s jewelry to her two nieces, Louise Celeste Marzella and Marguerite Ciervo, and the residue of the estate to appellant. The will also named the two nieces as contingent beneficiaries and alternate personal representatives. Mrs. Berte subsequently executed two codicils deleting the nieces as contingent beneficiaries and alternate personal representatives.

Mrs. Berte died in 1982. After the court admitted the April, 1981 will to probate, Mrs. Berte’s two nieces attacked the will on the grounds of undue influence and lack of testamentary capacity. The trial court found that the evidence presented gave rise to a presumption of undue influence; that appellant failed to rebut the presumption; and that she lacked credibility. Thus, the trial court entered an order revoking probate. Appellant contends the evidence does not support a finding of active procurement and therefore argues that no presumption of undue influence ever arose. We agree.

A presumption of undue influence does not arise unless “a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will....” Allen v. Gore, 387 So.2d 535, 538 (Fla. 4th DCA 1980), petition for review denied, 392 So.2d 1371 (Fla.1981); In re Estate of Carpenter, 253 So.2d 697 (Fla.1971). In the case at bar, the evidence shows that a close confidential relationship existed between appellant and the decedent and the parties do not dispute this point. However, a confidential relationship alone does not give rise to the presumption of undue influence. Allen, supra; In re Estate of Carpenter, supra.

The Florida Supreme Court provided a list of factors to consider in determining the existence of active procurement:

(a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution.

In re Estate of Carpenter, 253 So.2d at 702.

We recognize that not all the factors must be present to find active procurement and that the list is not exclusive. However, we have carefully reviewed the record and we find the evidence insufficient to support a finding of active procurement. Thus the presumption of undue influence never arose.

Accordingly, we reverse the trial court’s order revoking the probate of Berte’s will and remand for further proceedings.

REVERSED and REMANDED.

BERANEK and WALDEN, JJ., concur.


author: SCHEB, Judge.

text:
    Edward R. BRANN, d/b/a Brann's Auto Parts & Sales, Edward R. Brann, Individually and Betty Jo Brann, Individually, Appellants/Cross-Appellees, v. FLAGSHIP BANK OF PINELLAS, N.A., Appellee/Cross-Appellant.
    No. 83-829.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.
    Rehearing Denied May 18, 1984.

      G. Robert Schultz, St. Petersburg, for appellants/cross-appellees.
    Richard J. Neefe, St. Petersburg, for ap-pellee/ cross-appellant.
   SCHEB, Judge.

This appeal and cross-appeal present two issues. The first issue is whether, in a suit on a promissory note, a national banking association is limited to recovering the maximum rate of interest allowed under Florida law. The second is whether the court erred in refusing to impose liability on a guarantor on the ground that the guaranty agreement was stale.

Flagship Bank of Pinellas, N.A., as holder of a note executed March 3, 1981, brought suit against Edward R. Brann, d/b/a Brann’s Auto Parts & Sales, the maker of the note. The bank sought recovery of the unpaid principal balance of $14,-999.99, plus accrued interest, costs, and attorneys’ fees. Mr. Brann’s note to Flagship provided for interest at 21% per an-num with the rate subject to a daily change, which allowed it to float two points above the bank’s prime rate. Flagship also sought judgment against the maker’s wife, Betty Jo Brann, as guarantor to the extent of $12,000. Mrs. Brann had signed the guaranty agreement in 1978, some two and one-half years before Mr. Brann signed this note.

After a nonjury trial the court entered final judgment in favor of Flagship ■ and against Mr. Brann for the principal sum due on the note. However, the court limited the bank’s recovery of interest to 18% per annum, the maximum allowed by Florida law on this type of transaction. In its findings, the trial judge observed that Flagship Bank, as a national bank, was entitled to set the interest rates under applicable federal regulations. Nevertheless, the court concluded, since the note stated that it was to be governed by the laws of Florida, the bank had waived that privilege. Further, the court declined to find Mrs. Brann liable as a guarantor, because it concluded that her 1978 guarantee was stale and, therefore, of no force and effect.

On appeal the Branns contend that the trial court erred in allowing the bank to recover any sums other than the principal due on Mr. Brann’s note. Since the interest exceeded the 18% per annum permitted by section 687.02, Florida Statutes (1981), they contend the note was usurious, and that under section 687.04, the entire interest should be purged. The bank, on the other hand, argues that as a national association it is not limited in its recovery of interest by the laws of Florida. Next, the bank points out that Mrs. Brann’s guarantee was absolute and not limited by time; therefore, the court erred in declining to hold her liable as a guarantor. We think the bank is correct on both points.

Because the note was executed on March 3, 1981, in favor of a national banking association, the bank’s interest rates are regulated by the Depository Institutions Deregulation and Monetary Control Act of 1980. 12 U.S.C. § 86a(a) (1980). See also Licata v. Beninate, 436 So.2d 1331 (La.Ct.App.1983). Under this act and pertinent regulations, the bank is permitted, during the term of the loan, to charge a rate of interest equal to 5% in excess of the discount rate, including any surcharge on ninety-day commercial paper, in effect at the Federal Reserve Bank in Atlanta, Georgia. 12 U.S.C. § 86a(a). There is no suggestion that the interest charged by Flagship exceeded the interest ceilings authorized by the federal act and regulations.

Mr. and Mrs. Brann, while conceding the foregoing, argue that Flagship waived its right to charge the federally-sanctioned interest by including in the note a provision that stated, “this note shall be governed by the laws of the State of Florida.” We see no merit in this contention.

Florida courts have held that 12 U.S.C. sections 85 and 86, pre-empt state law as to the remedy where a national bank is involved in charging a rate of interest usurious under state law. Ellis National Bank v. Davis, 359 So.2d 466 (Fla. 1st DCA 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1547, 59 L.Ed.2d 796 (1979); Coral Gables First National Bank v. Constructors of Florida, Inc., 119 So.2d 741 (Fla. 3d DCA 1960). Although the note here stated that it was governed by Florida law, we do not think Florida law can be applied in respect to an interest rate which has been preempted by federal law. See Fidelity Federal Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); Licata, 436 So.2d at 1332. The rate of interest charged was not usurious under federal law. Therefore, the trial court should have awarded the bank the entire amount of interest due, together with the full amount of reasonable attorneys’ fees. See § 687.06, Fla.Stat. (1981).

The trial court also erred in holding that the guaranty agreement executed by Mrs. Brann was stale and of no force and effect. The guaranty agreement was signed by Mrs. Brann on October 27, 1978, and, by its terms, was absolute, continuing, and revocable only by notice in writing. The guaranty’s terms covered any future indebtedness to the bank incurred by Mr. Brann, d/b/a Brann’s Auto Parts.

A continuing guaranty covers all transactions, including future ones, that are within the contemplation of the agreement. Fidelity National Bank v. Melo, 366 So.2d 1218, 1221 (Fla. 3d DCA 1979); Fewox v. Tallahassee Bank & Trust Co., 249 So.2d 55, 57 (Fla. 1st DCA), cert. denied, 252 So.2d 799 (Fla.1971); Bryant v. Food Machinery & Chemical Corp., 130 So.2d 132, 134 (Fla. 3d DCA 1961). A guaranty which provides it will run until further notice remains in force until revoked by the guarantor. Bryant, 130 So.2d at 134.

There is no contention that Mrs. Brann revoked her guaranty prior to Mr. Brann’s execution of the note sued upon. Clearly, the note here was encompassed within the guaranty agreement, which embraced “any and all loans.” Since the agreement contained no expiration period and has not been revoked, the trial court erred in finding it was not applicable to this note.

Accordingly, we reverse and remand to the trial court for entry of a revised judgment. The court should award the bank the full amount of interest it is entitled to under the terms of its note, adjudge Mrs. Brann liable on her guaranty, and award the bank reasonable attorneys’ fees and court costs.

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


text:
    PINELLAS COUNTY, Appellant, v. John Philip BROWN, Appellee.
    No. 83-1832.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.
    Rehearing Denied May 17, 1984.
    W. Gray Dunlap, County Atty., and Susan Hamilton Churuti, Asst. County Atty., Clearwater, for appellant.

      James A. Helinger, Jr., P.A., Clearwater, for appellee.
   SCHEB, Judge.

Pinellas County challenges the trial court’s order holding that Brown is entitled to compensation for the county’s “taking” of his property interests. We affirm.

On May 16, 1972, Pinellas County, as lessor, entered into a long-term lease agreement with Pinellas Industrial Air-park, Inc. (PIA). The lease provided that it could not be “assigned or sub-leased by Lessee without the prior written consent of the Lessor, which consent shall not be unreasonably withheld.” In December 1980, PIA entered into an agreement with appel-lee John P. Brown for the sale and assignment of all of its leasehold interest. Brown made a deposit of $2,000 against the agreed purchase price of $222,000. The contract between the parties provided that it was “subject to and expressly contingent upon ... [assignment of present lease from Pinellas County to Buyer under present terms and conditions.”

For reasons not disclosed by the record, the Pinellas County Board of County Commissioners, in February 1981, voted not to approve the assignment from PIA to Brown. The following June, the board directed condemnation of the subject property. Under threat of condemnation, the county acquired PIA’s unexpired leasehold for $220,000. No payment was made by the county to Brown.

In September 1981, Brown filed an inverse condemnation action against the county. The thrust of his second-amended complaint was that the county’s wrongful refusal to approve PIA’s sale and assignment constituted a taking of Brown’s right in the real property. The case was subsequently set for jury trial. The court issued a pretrial order determining that the only issue to be tried was whether the county’s withholding of consent to the assignment constituted a taking of private property without payment of full compensation.

The jury returned a special verdict form answering the question in the affirmative. The trial court then entered a partial final judgment finding that the county’s actions “constituted a wrongful ... taking of a private property right ... without the payment of full compensation therefore, contrary to the provisions of Article X, Subsection 6(a), of the Florida Constitution.” The court further ordered that a jury would be impanelled at a later date to determine the full compensation due to Brown from the county.

This appeal by the county is taken from the court’s nonfinal order determining liability in favor of Brown. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). The only point raised by the county is whether the trial court erred in determining that Brown was an “owner” for the purposes of article X, section 6(a), of the Florida Constitution.

Initially, the county points out that Brown’s contract was contingent on its approving assignment of the lease. Since it withheld approval, the county argues, Brown never acquired an interest in the condemned property sufficient to entitle him to an award of compensation. Brown, on the other hand, contends that but for the county's unreasonable withholding of its consent to his contract, he would have acquired a vested ownership interest in real property. As such, he claims he is entitled to compensation for the taking of that interest.

In an action for inverse condemnation, an essential element is proof of a taking by the governmental body. Kendry v. Division of Administration, State Department of Transportation, 366 So.2d 391 (Fla.1978); State Department of Health & Rehabilitative Services v. Scott, 418 So.2d 1032 (Fla. 2d DCA 1982). Here, the county argues that nothing has been “taken” from Brown, because he never had a recognized interest in the property. Thus, it suggests that its payment to PIA exonerates it from further liability and that Brown should look to PIA, if anywhere, for any portion of the purchase price due him. We disagree.

In order for Brown to bring an action against the county to recover compensation for a taking, he must have an interest in the property entitling him to sue. Art. X, § 6(a), Fla. Const.; 21 Fla. Jur.2d Eminent Domain § 154 (1980). The definition of “property” in condemnation cases is sufficiently broad to extend to intangible and incorporeal rights, such as contractual obligations and leasehold interests. See State Road Department v. White, 161 So.2d 828 (Fla.1964); 21 Fla. Jur.2d Eminent Domain § 16 (1980); 26 Am.Jur.2d Eminent Domain § 81 (1966). However, each factual situation involving the issue of taking must be judicially determined on an individual basis. Scott.

In this case Brown was an intended beneficiary of the lease agreement with PIA, and once he acquired his assignment, he had an interest in the property. The county makes no argument here as to the reasonableness of its nonconsent. Thus, for the purpose of this decision, the question appears settled that the county’s withholding of consent was unreasonable. It follows that the county should not now be allowed to raise its refusal to consent as a defense to assignment of the lease. See 2 J. Sackman, Nichols on Eminent Domain, § 5.06 (1983). We hold that Brown has an ownership interest in the subject property entitling him to bring this action.

In light of our decision, the county must pay Brown a reasonable value for his interest in the property as of the date of the taking. County of Volusia v. Pickens, 439 So.2d 276 (Fla. 5th DCA 1983). The date of taking here was the date when the county reacquired the unexpired lease from PIA.

We note that Brown was entitled to purchase the leasehold interest for $222,000. However, he has not yet paid any money to PIA other than a $2,000' deposit. Since Brown has only paid a deposit on the property, he is only entitled to recover compensation for the loss of his bargain. Thus, if the jury determines the value of the leasehold to be in excess of $222;000, Brown should receive the amount that the value exceeds $222,000. However, if the jury determines the value to be less than $222,-000, then Brown will have suffered no loss and, consequently, will not be entitled to an award of compensation.

Accordingly, we affirm the partial final judgment and remand for further determination of compensation due Brown.

GRIMES, A.C.J., and LEHAN, J., concur.

      . Of course, if Brown has not received the return of his $2,000 deposit, his cause of action for that sum would be against PIA.


author: ERVIN, Chief Judge. NIMMONS, Judge,

text:
    Joseph Ted DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. AT-446.
    District Court of Appeal of Florida, First District.
    April 13, 1984.

      Terry P. Lewis, Sp. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   ERVIN, Chief Judge.

Duncan appeals his convictions for burglary with assault while armed and aggravated assault with a firearm, contending that the trial court erred in (1) limiting cross-examination of two state witnesses, and (2) admitting into evidence a photo lineup containing mug shots of Duncan. We affirm in part and reverse in part.

At trial, the evidence presented by the state included the testimony of only one eyewitness to the offenses, Douglas Welliver, who was at the home of his friend Michael Boulware on the morning of December 20, 1982 to assist with some carpentry work to the outside of Boulware’s house. On the prior evening, the house had been burglarized and a large quantity of marijuana stolen. This theft, although discovered the morning of December 20, was not then reported. After Boulware and other friends departed later that morning, Welliver remained there alone at work. Upon entering the house shortly after 12:00 p.m., he reported that he saw a black man inside whom he did not then recognize, crouching behind a garbage can. According to Welliver, the man pulled a revolver and pointed it at him. The man rummaged through the house and when he left, he carried with him a plastic garbage bag with coffee cans inside it, which Welliver believed contained marijuana belonging to Boulware. Some time later the incident was related to Boulware, and when he discovered, in addition to the missing cannabis, that some of his guns had also been taken, he determined to notify the police, but first proceeded to gather any remaining marijuana within the house and bury it. Consequently, the burglary which actually occurred between 12:00 and 1:00 p.m. was reported by Boulware and Welliver as having occurred around 3:00 p.m. When the police arrived, Welliver gave them a description of the suspect, and, the following afternoon, Welliver identified Duncan’s picture from a photo lineup.

At trial, the court admitted the photo lineup, consisting of cropped mug shots, into evidence, over defense counsel’s objection that the photographs were prejudicial, even though the bottom portions, identifying them as mug shots, had been excised. On cross-examination Welliver testified that he did not remember if he had smoked any marijuana on the morning of the incident, and, when defense counsel attempted to question him as to whether he had been a marijuana user for some time, the state objected, and the trial court sustained the objection on grounds of irrelevancy.

Boulware corroborated that a substantial amount of marijuana had been stolen from his house the evening before the reported incident, but that he had failed to notify the officers that any marijuana had been stolen on either the 19th or the 20th for the obvious reason that he wanted to avoid trouble. He had, moreover, during the morning of the 20th, and before the burglary of that date, made an accusation at Duncan’s home against Glenson Duncan, one of defendant’s brothers, as the person responsible for the burglary the preceding night. When the defense attempted to make inquiries concerning Boulware’s enterprises involving the growing and selling of marijuana for the purpose of showing that others had both access and opportunity to steal the marijuana, the trial court sustained the objection on the ground of irrelevancy to the crimes charged.

At the outset, we recognize that although wide latitude is permitted on cross-examination in a criminal proceeding, its scope and . limitation lies within the sound discretion of the trial court and is not subject to review except for a clear abuse of discretion. Sireci v. State, 399 So.2d 964 (Fla.1981). Section 90.612(2), Florida Statutes, provides that cross-examination of a witness is limited to the subject matter of the direct examination, and matters affecting the witness’ credibility, although the trial court may, in its discretion, permit inquiry into additional matters.

Initially, we find that the lower court committed no error in limiting cross-examination concerning Boulware’s marijuana activities and the opportunity others may have had to commit the crime by reason of their access to the house. Although we consider that testimony relating to the question of access by others would have relevancy to the issue of how many persons besides the defendant may have known of Boulware’s possession of large quantities of cannabis on the premises and would therefore have been motivated to enter illegally, we consider that no error occurred under the circumstances, despite the court’s ruling that such testimony was irrelevant. The defense was permitted to obtain substantially all that it had sought by the proffer. Boulware admitted that others had access to the house while they played volleyball there, while working there, and while babysitting. Moreover, it was established that Duncan’s sole accuser, Welliver, knew the location of the guns. Given the testimony admitted, we find no error.

The purpose of eliciting testimony from Welliver relating to the extent of his marijuana use, on the other hand, .clearly was to impeach the credibility of his testimony identifying Duncan as the perpetrator of the crimes. We find our decision in Cruz v. State, 437 So.2d 692 (Fla. 1st DCA 1983), to be dispositive of the issue of whether Welliver’s testimony concerning his marijuana usage was improperly excluded. There we recognized that such questions could be used to attack the credibility of the witness by “[sjhowing a defect of capacity, ability, or opportunity in the witness to observe, remember, or recount the matters about which he testified.” § 90.608(1)(d), Florida Statutes (1981). We concluded that the trial court’s limitation on the defense’s cross-examination of a key state witness concerning his own drug use, both before and on the date of the occurrence of the offense charged, amounted to an abuse of discretion.

The above rule is especially applicable to the present case in that the evidence presented against appellant depended solely upon the credibility of Welliver’s identification. The Duncans were, prior to the burglary of December the twentieth, suspected of burglarizing the Boulware home the preceding evening. Welliver himself was the only person allegedly present at the scene during the second occurrence. He and Boulware had initially given false information regarding the time of the incident in order to remove incriminating contraband from the house. Indeed, no timely report was made of the burglary alleged to have occurred on the nineteenth. That Welliver should have been subjected to thorough cross-examination is even more apparent in that' appellant presented alibi testimony as to his whereabouts during the time of the alleged burglary, placing him then in a different location. Given the crucial nature of Welliver’s testimony, we consider that its credibility should have been tested by all relevant questions. Certainly questions directed to the extent of time the witness had consumed narcotics were highly pertinent to the issue of potential misidentification. As we said in Cruz:

What was at issue below was not the witness’s competency to testify, but whether, as a result of his involvement with drugs, his ability to remember accurately the facts which were the subject of his testimony was affected. We conclude that the lower court’s limitation on the defense’s cross-examination of a key government witness was an abuse of discretion.

437 So.2d at 694-95.

We do not agree that the photo-lineup consisting of cropped mug shots was improperly admitted into evidence as raising an impermissible inference of a prior conviction. It is true that an accused’s right to a fair and impartial jury trial is violated when a jury is improperly made aware of defendant’s arrest for unrelated crimes during the trial, Straight v. State, 397 So.2d 903 (Fla.1981); however, despite a reference made to the use of a “mug shot” in a photographic lineup, but without the witness’s specifically referring to a pri- or conviction, the Supreme Court of Florida in Sims v. State, 444 So.2d 922 (Fla.1983), had held that such vague reference to other possible criminal activity was not so prejudicial as to require a new trial. Cf. Houston v. State, 360 So.2d 468 (Fla. 3d DCA 1978) (although the court ruled that the introduction of photographs clearly identifiable as mug shots, showing a date prior to the date of the crimes charged, constituted reversible error, the court stated that if such photographs are properly-cropped, such error could be cured). Accordingly, as the photographs here made no explicit reference to prior criminal activity by Duncan, we hold that their admission into evidence did not amount to reversible error.

The judgment of the trial court is AFFIRMED in part, REVERSED in part, and REMANDED for a new trial.

SMITH, J., concurs.

NIMMONS, J., concurring in part and dissenting in part.

NIMMONS, Judge,

concurring in part and dissenting in part.

I agree with the majority that the trial court did not err in receiving into evidence the defendant’s photograph.

However, I dissent from the majority’s opinion that the trial court committed reversible error in sustaining the state’s objection to defense counsel’s questioning of Welliver as to whether he had “been a marijuana user for some period of time.” (See pertinent portion of transcript at footnote 1 of the majority opinion.) I would not even reach the question as to whether the defense was entitled, under the holding in Cruz v. State, 437 So.2d 692 (Fla. 1st DCA 1983), to inquire into the witness’ marijuana usage because it is apparent to me that the trial court’s ruling, even if error, was harmless. The defense was successful in eliciting admissions from Welliver which demonstrated that he was a frequent user of marijuana. Welliver even admitted that, although he could not specifically recall, he may have smoked a “joint” the morning of the burglary, it being common for him to do so in the mornings before work. From a review of the record, it is apparent to me that the trial court afforded wide latitude to the defense in cross-examination of Welliver and, for that matter, in the examination of other witnesses. Control over the scope of cross-examination properly lies with the trial court and a conviction will not be overturned on that ground except where clear abuse of discretion is demonstrated. Powe v. State, 413 So.2d 1272 (Fla. 1st DCA 1982); Ho Yin Wong v. State, 359 So.2d 460 (Fla. 3rd DCA 1978). What limitations the trial judge did impose in this case were, in my opinion, well within the bounds of proper discretion.

Finally, although I agree with the result reached (affirmance) by the majority on the issue of whether the trial court reversibly erred in limiting defense cross-examination regarding the number of people who may have visited Boulware’s residence and who may have known of the presence of marijuana on the premises, I am troubled by the majority’s suggestion that the trial court may have erred in ruling that such inquiry was irrelevant. I fear that the majority’s expressions on this point will encourage collateral inquiries which have only remote bearing on the guilt or innocence of the defendant. One might reasonably suppose from the majority’s opinion that a person whose home is burglarized and who may have kept articles of value in his home can legitimately be subjected to thorough cross-examination as to the identity of friends and acquaintances who may have had occasion to visit the home and have knowledge of the presence of such articles of value, the inference being that one of such visitors may have been the burglar. I believe the trial judge was quite correct in ruling this kind of testimony to be irrelevant.

I would affirm the appellant’s convictions.

      . The record of the questions and responses made reveals the following:
      Q And you knew at the time that you got to work that whatever happened on the 19th dealt with a pot ripoff?
      A Yes.
      Q And, in fact, you may have even smoked a joint sitting around the table discussing what work was going to be done that day, didn’t you?
      MRS. SINGER: Your Honor, I’m going to object to that question as being totally irrelevant.
      THE COURT: Overruled.
      A I don’t recall.
      Q It was common to do that first thing in the morning, have a cup of coffee and—
      MRS. SINGER: I’m going to object. The witness said he doesn’t recall.
      THE COURT: Objection overruled.
      BY MR. MOLLICA:
      Q It was common to sit around and have a cup of coffee and smoke a joint before you started to work, wasn’t it?
      A We had been known to do that, yes.
      Q So what you’re telling us is you can’t be sure whether or not that's what happened on the 20th, but it could have happened?
      A Yes.
      Q And, in fact, you personally have been a marijuana user for some period of time?
      MRS. SINGER: I’m going to object, Your Honor, as being irrelevant to this case.
      THE COURT: Sustained.


author: BOOTH, Judge.

text:
    The STATE EXCHANGE BANK, Appellant, v. EMPLOYEE FRINGE BENEFITS, INC., Appellee.
    No. AU-197.
    District Court of Appeal of Florida, First District.
    April 13, 1984.
    See also, 420 So.2d 407.
    Tom W. Brown and Frederick L. Kober-lein of Brannon, Brown, Norris, Vocelle, Haley, Brown & Robinson, Lake City, for appellant.
    C. Harris Dittmar and Timothy J. Corri-gan of Bedell, Dittmar, DeVault, Pillans & Gentry, Jacksonville, for appellee.
   BOOTH, Judge.

The State Exchange Bank (Bank) appeals the entry of partial summary judgment in favor of Employee Fringe Benefits, Inc. (EFB) as to Count II of EFB’s complaint and Counts I, II, and III of the Bank’s counterclaim. The entry of partial summary judgment disposes of all claims between EFB and the Bank.

The issue presented is whether a life insurance policy on the life of Forrest Jefferson Harris, Jr. (deceased) was assigned as collateral for indebtedness of Hidden Hills North Development Company (Hidden Hills) or for indebtedness of Harris.

EFB sued Great Southern Life Insurance Company (Great Southern) and the Bank seeking, in part, a judgment against Great Southern for all monies due under an accumulator whole life insurance policy insuring the life of Harris and declaratory judgment that the Bank was not entitled to any of the proceeds from the above-mentioned policy. The Bank counterclaimed seeking, in part, reformation of the collateral assignment of policy on the basis of mutual mistake (Count I) and fraud and/or misrepresentation (Count II), and demanding judgment against EFB for breach of agreement to properly furnish the Bank the insurance required to collateralize Harris’ line of credit (Count III).

The policy which insured the Harris’ life in the amount of $100,000 was obtained from Great Southern and named Hidden Hills owner and beneficiary. Hidden Hills was wholly owned by Ronald B. Garelick (deceased). Garelick was also general agent for Great Southern and owner of EFB, an insurance agency. The policy in question was collaterally assigned by the “undersigned policyowner” to the Bank “to be held as collateral security for any and all liabilities of the undersigned to the As-signee.” The form was supplied by EFB. The collateral assignment expressly “DOES NOT EFFECT A CHANGE OF BENEFICIARY.”

Critical to the determination of this case are the signatures affixed to the collateral assignment of policy, which are as follows:

/s/ Ronald B. Garelick — Pres.

Policyowner

/s/ Hidden Hills No. Develop. Co.

X /s/ Jennie Stone

/s/ Secretary (Title)

Hidden Hills was not indebted to the Bank. However, Garelick, in his individual capacity, was indebted to the Bank for $70,000, money borrowed to be used for the Hidden Hills project, a land development project for which Garelick, Harris, and one Gary Homes became associated. That debt was paid after Garelick’s death by the policy on his life.

It is undisputed that six lots of land and an insurance policy in the amount of $100,-000 on Garelick’s life were collateral for the $70,000 loan to Garelick. However, it is EFB’s contention that the policy on Harris’ life was also collateral for the loan to Garelick. On the other hand, it is the Bank’s contention that Garelick agreed to furnish insurance on Harris’ life to secure the latter’s line of credit, thus entitling the Bank to satisfaction from the proceeds thereof.

Our analysis begins with the collateral assignment of policy. That agreement, though regular on its face, contains a latent ambiguity. The document purports to collateralize the debt of Hidden Hills. But, as agreed by the parties, Hidden Hills was never indebted to the Bank. EFB argues that, in order to give meaning to the instrument in question and to prevent declaring the particular transaction a nullity, this court should construe Garelick’s signature as given in his individual capacity. See, e.g., Central National Bank of Miami v. Muskat Corporation of America, Inc., 430 So.2d 957 (Fla. 3d DCA 1983); Roy v. Davidson Equipment, Inc., 423 So.2d 496 (Fla. 4th DCA 1982). Such a construction, however, would require this court ignore the plain import of Garelick’s signature in his representative/corporate capacity, as well as the signature of Jennie Stone in her representative/corporate capacity, and the plain language of the instrument itself, which purports to be an assignment from the “undersigned policyholder.” It is undisputed that the policyholder was not Gar-elick but Hidden Hills.

It is the Bank’s position that the collateral assignment of policy should be reformed by deleting the word “undersigned” wherever it is used with reference to the debt collateralized and substituting in its stead the word “insured,” which would refer to Harris. In support of its contention, the Bank offered the affidavits and deposition testimony of two of its officers, Currie and Van Arsdall. The gist of their combined testimony, viewed most favorably to the Bank, was that Harris approached the Bank on Garelick’s behalf for purposes of obtaining a $70,000 loan, which was to be used for a project in which Harris was involved. During the course of negotiations for the $70,000 loan and because of Harris’ involvement with the Hidden Hills project and the Bank’s knowledge that Gar-elick was Harris’ insurance agent, it was considered an appropriate time to request that Harris’ line of credit be further collat-eralized by insurance on his life, and it was agreed that the required insurance would be provided.

Based upon the foregoing, we conclude that there are material issues of fact which preclude entry of summary judgment. Accordingly, the order is reversed and the cause remanded for further proceedings consistent herewith.

ERVIN, C.J., and BARFIELD, J., concur.

APPENDIX A

      . Forrest Jefferson Harris, Jr. died sometime prior to August 3, 1977, the date his body was discovered.

      .The counterclaim alleged that Forrest Jefferson Harris, Jr. was liable to the Bank as guarantor and endorser on notes and mortgages exceeding $200,000.

      . On August 4, 1977, Ronald B. Garelick was involved in an aircraft accident, which resulted in his death on August 5, 1977.

      . See copy, "Collateral Assignment of Policy,” attached herewith, Appendix A.


text:
    Earl B. HILL, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 83-1020.
    District Court of Appeal of Florida, Third District.
    April 17, 1984.
    Rehearing Denied June 4, 1984.
    Bennett H. Brummer, Public Defender and Sheryl J. Lowenthal, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and G. Bart Billb-rough, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and ROBERT C. SCOTT, Associate Judge.
   PER CURIAM.

We find the evidence against the defendant so overwhelming as to make the error of admitting a totally irrelevant and arguably prejudicial letter written by him harmless. Accordingly, the judgment under review is

Affirmed.