author: HURLEY, Judge.

text:
    STEL-DEN OF AMERICA, INC., a corporation and Travelers Indemnity Company, a corporation, Petitioners, v. ROOF STRUCTURES, INC., a Florida corporation, Respondent.
    No. 82-2572.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Rehearing Denied Nov. 1, 1983.

      L. Anton Rebalko of Titone & Roarke, P.A., Lauderhill, for petitioners.
    Larry R. Leiby of Leiby & Elder, Miami, for respondent.
   HURLEY, Judge.

By petition for writ of certiorari we are asked to review a decision of the circuit court, sitting in its appellate capacity, which holds that the county court has jurisdiction to foreclose a lien against a transfer bond posted pursuant to Section 713.-24(l)(b), Florida Statutes (1981). We conclude that the circuit court’s opinion is in error and that it constitutes a departure from the essential requirements of law. Hence, we issue the writ and quash the decision.

Stel-Den of America, Inc. (Stel-Den) owns a lease-hold interest in certain commercial property. It employed a general contractor, C & M Construction of Fort Lauderdale, Inc. (C & M), to renovate the building. C & M, in turn, contracted with Roof Structures, Inc. (Roof Structures) for structural timber and a roof deck system. Difficulties developed and Roof Structures filed a claim of lien against the property. Stel-Den transferred the lien to bond pursuant to Section 713.24(l)(b), Florida Statutes (1981).

Next, Roof Structures filed a two-count complaint in the county court. The first count, for breach of contract, sought relief from C & M. The second count, styled “Enforce Mechanics Lien,” named Stel-Den as principal on the transfer bond and Travelers Indemnity Co. as surety. After a bench trial on count two, the court entered judgment for Roof Structures. Thereafter, Stel-Den and Travelers filed a motion for relief from judgment in which, for the first time, they asserted that the county court lacked subject matter jurisdiction. The county court denied the motion and Stel-Den and Travelers appealed to the circuit court. As indicated, the circuit court affirmed, finding that Chapter 85, the general lien statute, provided a basis for the county court’s exercise of jurisdiction. The circuit court reasoned that “[wjhile ... [Roof Structures] could have chosen to file an action in chancery in the Circuit Court pursuant to § 713.24 Florida Statutes, there is nothing to prohibit the remedy of an ordinary action of law as set forth in Chapter 85.”

Before considering the merits of the case, it is appropriate to discuss the basis for this court’s jurisdiction. Certiorari is available to review a decision of the circuit court, sitting in its appellate capacity, only in those instances where the petitioner demonstrates that there has been a departure from the essential requirements of law. The Florida Supreme Court addressed this standard of review in Combs v. State, 436 So.2d 93 (Fla.1983), and held that

the phrase “departure from the essential requirements of law” should not be narrowly construed so as to apply only to violations which effectively deny appellate review or which pertain to the regularity of procedure. In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error.... The district courts should exercise this discretion only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.

An incorrect decision on subject matter jurisdiction is fundamental error. It constitutes a departure from the essential requirements of law, sufficient to justify invocation of this court’s certiorari jurisdiction. See Hartford Accident and Indemnity Co. v. Thomasville, 100 Fla. 748, 130 So. 7 (Fla.1930). It is axiomatic that subject matter jurisdiction is indispensable to a court’s power to adjudicate rights between parties. Additionally, it is well-settled that lack of subject matter jurisdiction can be raised as a defense at any time, including after entry of a final judgment or for the first time on appeal. In re Brown’s Estate, 134 So.2d 290 (Fla. 2d DCA 1961); see also Rule 1.140(h)(2), Fla.R.Civ.P. Thus, the county court’s lack of subject matter jurisdiction was properly raised in the circuit court. So too, it is properly before this court.

Turning to the merits of the case, the circuit court held that Chapter 85 provides an alternate statutory basis upon which claimants may rely to enforce a lien against a transfer bond. The court also held that the county court is vested with jurisdiction to entertain such actions. We disagree with both conclusions. First, the circuit court’s opinion ignores the plain language of Chapter 85. Section 85.011, Florida Statutes (1981), indicates that “[a] 11 liens on real or personal property provided for by part I or part II of chapter 713 [the Mechanics’ Lien Statute] are enforceable ... [under Chapter 85] except when otherwise provided . ... ” (Emphasis supplied.) Section 713.24(3), Florida Statutes (1981), in turn, states that

[a]ny party having an interest in such security or the property from which the lien was transferred may at any time, and any number of times, file a complaint in chancery in the circuit court of the county where such security is deposited for an order to require additional security, reduction of security, change or substitution of sureties, payment or discharge thereof or any other matter affecting said security. (Emphasis supplied.)

At a minimum, the foregoing statute vests the circuit court with exclusive jurisdiction for actions against transfer bonds. Indeed, one writer has suggested that the statute can be interpreted even more restrictively to provide that “no court could obtain jurisdiction of the subject-matter of the action other than the [circuit] court in the county in which the security was deposited. Thus, for example, suit would have to be timely brought in the proper court in order to avoid the running of the statute of limitations on a claim on a transfer bond.” 2 S. Rakusin, Florida Mechanics’ Lien Manual § 18, at 19 (1974). Without passing on the propriety of this construction, we note that it substantially affirms the legitimacy of appellants’ position in the case at bar.

We had occasion to discuss the controlling effect of Section 713.24(3), Florida Statutes (1981), in Morganti South, Inc. v. Hardy Contractors, 397 So.2d 378 (Fla. 4th DCA 1981). Morganti South involved the statute’s venue provision and we held that the “statute is mandatory to the extent that any suit to recover on ... [a transfer bond] must be brought in the county where the security is deposited.” Id. at 379. Similarly, we hold that the statute’s jurisdictional provision is mandatory to the extent that any action against a transfer bond must be brought in chancery in the circuit court.

Also, in Morganti South, Inc. v. Hardy Contractors, supra, we noted that the posting of a transfer bond has a negligible effect on the trial of the cause. We observed that

[t]he transfer of a mechanic’s lien from the real estate to a bond does not obviate the necessity of the lien claimant’s proving all the prerequisites necessary to enforcement of the lien even though the realty may no longer be encumbered by the lien. On the contrary, the lien claimant must prove all of the conditions precedent to perfection and enforcement of the lien before recovery against the bond can be achieved.

Id. at 379; see also Gesco, Inc. v. Edward L. Nezelek, Inc., 414 So.2d 535 (Fla. 4th DCA 1982). In other words, the transfer of the lien to bond does nothing to diminish the nature or characteristics of the lien foreclosure action. It continues to be a proceeding in equity. Thus, our holding that the circuit court has exclusive jurisdiction over actions against transfer bonds is consonant with the long-held rule that the circuit court has exclusive jurisdiction over actions to enforce mechanics’ liens regardless of the amount involved. See Mills v. Robert W. Gottfried, Inc., 272 So.2d 837 (Fla. 4th DCA 1973).

Accordingly, we grant the writ of certio-rari, quash the decision of the circuit court and instruct the circuit court to enter an order reversing the county court’s order which denied petitioners’ motion for relief from judgment.

Writ issued with instructions.

LETTS and HERSEY, JJ., concur.

      . Art. V, § 5(b), Fla. Const. (1972); Fla.R. App.P. 9.030(c).

      . This accords with the general view that “the liability of the owner for a lien acquired and perfected under the ... [Mechanics’ Lien Statute] must be determined by its provisions .." Bybee v. Stearn, 95 So.2d 529, 531 (Fla.1957).


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Joseph LaBARCA d/b/a La Paloma Motel, Appellant, v. RCA SERVICE COMPANY, a foreign corporation, Appellee.
    No. 83-571.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Rehearing Denied Oct. 17, 1983.
    Louis Vernell, Jr., and James G. Roth, Miami Beach, for appellant.
    Abbey L. Kaplan of Kaplan & Hodin, Miami, for appellee.
   DOWNEY, Judge.

Appellant seeks review of an interlocutory order denying his motion to vacate a default judgment. We have jurisdiction to review said order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Doctor’s Hosp. of Hollywood v. Madison, 411 So.2d 190 (Fla.1982).

Appellant, the owner and operator of a motel, entered into a contract with appellee whereby appellee furnished and maintained a number of television sets and a comprehensive telephone system for appellant’s motel. When appellant became delinquent in his monthly installment payments appel-lee filed suit for replevin and damages on December 9, 1982. Appellant was served with the complaint, summons, and prejudgment writ of replevin, and the personal property involved was delivered to appellee.

Upon being served appellant called his lawyer and thereafter mailed the suit papers to the lawyer’s office. When no response was filed, appellee sought the entry of a default on January 6, 1983. On January 11, 1983, a default was entered.

Appellant filed an unsworn motion to vacate the default on January 14, 1983, alleging that defense counsel was moving his office from Miami Beach to North Miami Beach and as a result he did not receive the sent papers until January 13,1983, although he had notified the post office of his change of address. Appellant also filed a notice of hearing set for February 11, 1983, on his motion to vacate. Appellee’s counsel appeared at said hearing but counsel for appellant did not. After a substantial delay the court heard appellee’s argument and denied the motion to vacate.

In the meantime on February 9, 1983, appellant had filed an answer and counterclaim. Appellee responded with a motion to strike and noticed said motion for February 21, 1983. Counsel for appellant once again failed to appear and the trial court granted appellee’s motion to strike.

No abuse of discretion has been demonstrated by appellant. Not only did he fail to support his alleged excusable neglect by any sworn pleading or evidence but appellant’s counsel never appeared to support the motion to vacate the default or in opposition to the motion to strike.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

ANSTEAD, C.J., and DELL, J., concur.


author: ROBERT P. SMITH, Jr., Judge. WENTWORTH, Judge,

text:
    Irene Yvonne PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. AO-323.
    District Court of Appeal of Florida, First District.
    Sept. 14, 1983.
    Rehearing Denied Oct. 28, 1983.

      Michael E. Allen, Public Defender, and Gwendolyn Spivey, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   ROBERT P. SMITH, Jr., Judge.

By supplemental brief raising the question for the first time here or in the circuit court, Phillips urges that the charge on which she was tried and convicted after jury trial, labeled “FELONY PETIT THEFT” in the caption of the information, was not alleged in the body of that instrument in such a way as to invoke the felony jurisdiction of the circuit court. Phillips therefore urges that the circuit court lacked jurisdiction of 'the charge as laid, that the ensuing judgment after trial and verdict was void, and that the jurisdictional defect must be noted even though no objection or motion to dismiss the information was made in the circuit court. Regrettably that is so.

Section 812.014, Florida Statutes (1981), defining and proscribing “theft,” provides in subparagraph (2)(c) that “[tjheft of any property not specified in paragraph (a)” (which concerns property valued at $20,000 or more) “or paragraph (b)” (which concerns property valued at $100 to $20,000, or other property particularly described) “is petit theft and a misdemeanor of the second degree .... ” The same subparagraph (2)(c) goes on:

Upon a second conviction for petit theft, the offender shall be guilty of a misdemeanor of the first degree .... Upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree ....

When the offense charged is “petit theft” by definition of section 812.014, therefore, the circuit court of Duval County has felony jurisdiction only if a conviction upon the charge laid in the information would be the offender’s “third or subsequent conviction for petit theft.” Sec. 26.012(2)(d), Fla.Stat. (1981). While the circuit court also has jurisdiction of informations charging “misdemeanors arising out of the same circumstances as a felony which is also charged,” Id., this is not such a case.

If the critical issue could be posed as one of notice to the accused, rather than as a jurisdictional issue, it might well be argued that Phillips was notified that a felony was charged, albeit imperfectly. Phillips was so notified both by the caption of the information and by the state attorney’s filing at arraignment of a notice of intent “to seek a felony petit theft penalty” based on the accused’s two specified prior convictions of petit theft, several years earlier, in the county court. But the charging part of the information simply alleged a petit theft violation of section 812.014(2)(c), in that Phillips on a certain date, in Duval County,

did knowingly obtain or use, or endeavor to obtain or use merchandise, valued at less than One-Hundred Dollars ($100.00), the property of Winn Dixie Stores, Incorporated, a corportion [sic], with intent to appropriate the property to her use or to the use of any person not entitled thereto, contrary to the provisions of Section 812.014(2)(c), Florida Statutes.

Omitting reference in the information to Phillips’ two prior convictions for petit theft, the state attorney obviously interpreted State v. Harris, 356 So.2d 315 (Fla.1978), as authorizing or requiring that omission from the charging language in order to avoid the prejudice of revealing the allegation or fact of prior convictions to the trial jury. But Harris appears not to license that omission from the charging document, but only to require a separate post-verdict determination of prior convictions by the circuit judge.

To omit the historical fact of prior convictions from the charging language of an information such as this is to charge only a petit theft, and is said to be a jurisdictional defect, not merely an imperfection in a felony charge that must be challenged by proper motion or else is waived. Christopher v. State, 397 So.2d 406 (Fla. 5th DCA 1981) [information captioned “Grand Theft” under § 812.014(2)(c) ]; Brehm v. State, 427 So.2d 825 (Fla. 3d DCA 1983) [information charging § 877.08 violation without alleging prior conviction for same offense]; see also State v. Black, 385 So.2d 1372 (Fla.1980) [venue]; Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), cert. denied, 283 So.2d 99 (Fla.1973); Page v. State, 376 So.2d 901 (Fla. 2d DCA 1979); Waters v. State, 354 So.2d 1277 (Fla. 2d DCA 1978); Dicaprio v. State, 352 So.2d 78 (Fla. 4th DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977); Boley v. State, 273 So.2d 109 (Fla. 4th DCA 1973), cert. denied, 287 So.2d 668 (Fla.1973); but cf. Peek v. Wainwright, 393 So.2d 1175 (Fla. 3d DCA 1981).

We do not reach the other points urged on this appeal. The judgment and sentence are VACATED. We take note from the state’s brief that the same question is presented in several other appeals from the Duval County circuit court.

ZEHMER, J., concurs.

WENTWORTH, J., dissents by written opinion.

WENTWORTH, Judge,

dissenting.

The information in this case charged appellant with “Felony petit theft .... contrary to the provisions of Section 812.-014(2)(c), Florida Statutes” and contained a specific description of a single petit theft which the statute classifies as a misdemean- or except “upon a third or subsequent conviction ... the offender shall be guilty of a felony .... ” (emphasis supplied). I find the information sufficient to incorporate by reference the language of the cited section defining felony petit theft and would conclude that it was the precise equivalent of a charge that appellant, in the referenced statutory language, was “guilty of a felony” based upon the described theft being “a third or subsequent conviction for petit theft .... ” Since the parties and the court apparently so understood the information without objection to the lack of specifics on prior convictions, and as thus construed the information charges an offense cognizable in the circuit court, I find no jurisdictional problem and would affirm for lack of reversible error on other issues presented here.

      . In Christopher v. State, 397 So.2d 406 (Fla. 5th DCA 1981), and Brehm v. State, 427 So.2d 825 (Fla. 3d DCA 1983), the court’s jurisdiction could not be determined from the face of the accusatory pleadings in conjunction with the statute. In Christopher the caption “Grand theft” in the information was negated by its specific factual allegations of the amount involved, and nothing else there, or in Brehm, served to reference the enhancement provisions of the statute defining a felony based on prior convictions. The information, accordingly, entirely failed to allege prior convictions essential to the circuit court’s jurisdiction.


author: GRIMES, Judge.

text:
    Robert W. SLOAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1946.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.

      Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This appeal poses the question of whether the court was obligated to declare a mistrial when it was discovered that an alternate juror had sat in on a portion of the jury’s final deliberations.

Appellant was charged with grand theft, the use of a firearm in the commission of a felony, and possession of a firearm by a convicted felon. Following receipt of the court’s instructions, the jury retired to consider its verdict. At this point the judge excused the woman who had been serving as an alternate juror. Subsequently, while standing in the hallway, the judge noticed the woman leaving the jury room. Apparently, after being excused she had gone into the jury room to retrieve her purse. When the bailiff took the jury to the jury room, he did not know she was inside. She explained to the judge that she decided to sit in the back of the jury room and listen to the discussion because it had been such an interesting case. She denied taking part in any of the deliberations. None of the jurors were aware of the judge’s conversation with the alternate.

The judge asked the attorneys for both parties to state their position with respect to allowing the trial to proceed. The state had no objection. After conferring with appellant, defense counsel announced that he would not move for a mistrial. He said that he was willing to waive his objections to the alternate’s presence in the jury room upon his understanding that the alternate did not participate in any of the deliberations. To the extent that can be determined from this record, the alternate appears to have been in the jury room for approximately one hour of the jury’s four hours of deliberation.

In Berry v. State, 298 So.2d 491 (Fla. 4th DCA 1974), the court permitted the alternate juror to accompany the jury to the jury room upon the admonition not to participate in the deliberations. The defendant’s counsel did not object to this procedure. Upon appeal following the defendant’s conviction, the court pointed out that Florida Rule of Criminal Procedure 3.280 specified that an alternate juror must be discharged at the time the jury retires to consider its verdict. The court held that failing to discharge the alternate and permitting him to accompany the jury to the jury room during deliberations constituted fundamental error. The court in Fischer v. State, 429 So.2d 1309 (Fla. 1st DCA 1983), reversed a conviction because an alternate was inadvertently permitted to sit through the entire jury deliberations.

In both cases the courts rejected the suggestion that prejudice must be shown to have resulted from the presence of the alternate in the jury room. Similarly, in light of the importance of jury sanctity, the state’s argument in this ease that these decisions can be distinguished because the respective trial judges failed to timely discharge the alternate is not persuasive. However, the instant case is meaningfully different in one respect. When the presence of the alternate in the jury room was discovered, the court specifically asked appellant’s counsel if he had any objection to the jury continuing its deliberations under those circumstances. After conferring with his client, counsel specifically waived objection and did not make a motion for mistrial. The jury then deliberated for three more hours before returning a verdict of guilty.

We find this situation analogous to the case in which there has been an improper comment on the defendant’s right to remain silent. At this point the defendant is entitled to a mistrial. • If he does not ask for a mistrial, he will be deemed to have waived the error. Clark v. State, 363 So.2d 331 (Fla.1978). Thus, when the alternate’s presence in the jury room was discovered, appellant had an absolute right to a mistrial. However, he affirmatively elected not to move for a mistrial. The appellant cannot have it both ways. The alternate’s presence in the jury room was inadvertent and not attributable to the fault of either the court or the state. It would be manifestly unfair to permit appellant to choose that the jury continue its deliberations in hopes of a favorable verdict and yet be entitled to obtain a new trial before another jury if the verdict proved adverse.

Appellant’s suggestion that the presence of the extra juror in the jury room was a defect of such constitutional dimension that it could not be waived pales in light of the fact that a defendant is only constitutionally guaranteed a trial by a jury of six persons. Art. I, § 22, Fla. Const.; Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978). Florida Rule of Criminal Procedure 3.250 even permits a defendant, upon stipulation, to waive a jury in its entirety. The appellant is bound by his waiver.

Appellant also argues that he was improperly convicted of the use of a firearm in the commission of a felony. Appellant and his accomplice carried out the theft of a pawn shop by posing as agents of the Internal Revenue Service who were seizing property in the course of investigating tax evasion. As part of the scam, appellant carried a gun in a holster. The pawn shop clerk was apprehensive when she saw the weapon. Appellant never removed the gun from the holster, though at one point he put his hand on it as if to draw it when a policeman approached the shop. Under the circumstances there was sufficient evidence for the jury to conclude that appellant’s display of the gun played a part in the accomplishment of the theft. Cf. Odum v. State, 289 So.2d 430 (Fla. 2d DCA 1974) (in which no intimidation was involved and where, at the time the defendant displayed his gun pretending to be a policeman, his crime of breaking and entering with intent to commit a misdemeanor had already been consummated).

AFFIRMED.

OTT, C.J., and CAMPBELL, J., concur.

      . 790.07 Persons engaged in criminal offense, having weapons.—
      (2) Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carnes a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.


author: CAMPBELL, Judge.

text:
    George BUNYAK and Lillian A. Bunyak, his wife, Appellants, v. CLYDE J. YANCEY AND SONS DAIRY, INC., and The Insurance Company of North America, Appellees.
    No. 82-2098.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Rehearing Denied Oct. 18, 1983.

      John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for appellants.
    Daniel A. Carlton of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellee, Clyde J. Yan-cey and Sons Dairy, Inc.
    No appearance for appellee, The Ins. Co. of North America.
   CAMPBELL, Judge.

In 1963, George and Lillian Bunyak, the appellants in this case, purchased 100 acres of land in a rural area of Manatee County. They raise cattle and grow hay on this property.

West of appellants’ property lies property belonging to Clyde J. Yancey & Sons Dairy, the appellee in this case. Appellee owns approximately 1000 acres and since 1956 has operated a dairy farm on this property.

Central to appellee’s dairy operation is a milking barn that stands about one-half mile from appellants’ fence line and to the west of a thoroughfare called the Betts Road. Because this property is somewhat higher than the property east of Betts Road, water in this area drains or runs naturally from west to southeast. East of the Betts Road, a natural drainage channel unites with a manmade ditch to form a V. Appellants claim that appellee dug the ditch and altered the natural drainage in the area, while appellee maintains that it only cleaned and cleared an existing ditch. In any event, at the point of the V, a single ditch continues running downhill and into a series of ponds situated towards the rear of appellants’ property.

In 1970, manure generated from the dairy farm flowed down onto appellants’ property and clogged their ditches. Shortly after this, appellee constructed a large lagoon near the milking barn to hold the liquified manure that ran from the barn at an estimated flow of 14,000 pounds per day. Appellee also built a second lagoon directly behind the first one to store overflow, and because this second lagoon is situated on higher ground, appellee uses an electric pump to push the excess effluent up into it.

One day in November, 1978, George Bun-yak and his son decided to go fishing in a pond on their property. Once there, they found the pond covered with a substance which they believed to be manure. They followed the creek upstream, finding it and another pond similarly clogged and filled. They crossed over to appellee’s property and followed the flow until they reached the Betts Road at a point where a culvert runs underneath that road. From this vantage point, the Bunyaks saw the substance flowing through the culvert from appellee’s anerobic lagoon.

A few days later, appellants’ daughter rode one of her horses out near the ponds on her parents’ property. She also saw that the ponds were covered with a substance that she also believed to be manure; she said the smell was awful and she feared that her horse would be harmed if it waded into the pond. Following the flow, as her father and brother had done, she soon reached the Betts Road and also saw the substance flowing down from appellee’s barn area through the culvert and eventually onto her parents’ property.

George Bunyak complained to Clyde Yan-cey, Jr., who admitted that the pump was broken. After unsuccessfully trying to get appellee to remedy this problem, appellants filed suit seeking compensatory and punitive damages under counts of negligence, strict liability, trespass, and nuisance.

During the trial, there was a dispute over whether the substance flowing onto appellants’ property was, in fact, liquified cow manure. Appellee’s expert, hydrologist Lloyd Horvath, testified that he had taken two core samples removed from different areas of appellants’ property to a geologist at his firm and had asked the geologist to examine these samples and determine which sample came from a manure contaminated pond. Counsel for appellants objected to Horvath expressing the expert opinion of another expert, but the trial court overruled this objection.

During the trial, the court directed verdicts on the nuisance, trespass, and strict liability counts. The jury considered only the negligence count and returned a verdict for appellee. Appellants then filed this appeal, and we now reverse.

Appellants have raised four points on this appeal. They contend that the trial court erred in directing a verdict on the trespass count, that appellee should be liable without fault for the damage to appellants’ property, that Mr. Horvath’s testimony about the geologist’s opinion was inadmissible hearsay, and that the jury ignored the evidence. We need only consider the second and third points raised.

However, before addressing these issues in detail, we note initially that appel-lee has argued that there was only circumstantial evidence that the anerobic lagoon ever overflowed, the theory apparently being that there was never any evidence that anyone actually ventured to the edge of appellee’s anerobic lagoon and saw the manure flowing out. Such direct evidence is not indispensable for it is beyond peradventure that circumstantial evidence is also quite sufficient to prove a case. Neilsen v. City of Sarasota, 117 So.2d 731 (Fla.1960). See also Sullivan v. State, 430 So.2d 519 (Fla. 2d DCA 1983). The testimony and documentary evidence presented by appellants during their case-in-chief was more than sufficient and from it the jury could have concluded that manure did flow from the lagoon onto appellants’ property.

Moving to a consideration of the issues dispositive of this appeal, we find that the trial court erred in permitting the hydrologist to testify regarding an expert opinion given by the geologist. Section 90.-704, Florida Statutes (1981), states:

The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, him at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence.

This does not permit an expert witness in one field to testify as to the expert opinion given to him by another expert. Such testimony is inadmissible hearsay pursuant to section 90.801(2)(c), Florida Statutes (1981). Everett v. State, 97 So.2d 241 (Fla.1957), cert. denied, 355 U.S. 941, 78 S.Ct. 432, 2 L.Ed.2d 422 (1958); and State v. Towne, 142 Vt. 241, 453 A.2d 1133 (1982).

The trial court also erred in removing the strict liability count from the jury’s consideration. In the oft-cited case of Rylands v. Fletcher, 1868, L.R.3H.L. 330, England adopted the doctrine of strict liability for the hazardous or abnormally dangerous use of one’s land. This doctrine is limited to those land uses deemed nonnatural. Subsequently, the doctrine has been adopted in the United States by a majority of jurisdictions. Prosser, Laws of Torts § 78 (1971). American courts, like the English courts, have applied the doctrine to abnormally dangerous conditions or activities not natural to the locality in which they occur.

Our supreme court obliquely applied the Rylands v. Fletcher doctrine as early as 1889 in Pensacola Gas Co. v. Pebley, 25 Fla. 381, 5 So. 593 (1889). There,.the defendant gas company, in conducting its operation, discharged filthy water that seeped into the plaintiff’s well and rendered the water therein unfit for any use. The court stated:

The appellant gas company had the right to use the water in and about the gas works as they pleased, but they had no right to allow the filthy water to escape from their premises and to enter the land of their neighbors. It was the duty of the company to confine the refuse from their works so that it could not enter upon and injure their neighbors, and if they did so, it was done at their peril, the escape of the refuse filthy water being in itself an evidence of negligence on the part of the gas company.

25 Fla. at 390, 5 So. at 595 (emphasis add-

Eighty-six years later, our court j formally adopted and applied the Rylands v.i Fletcher doctrine in Cities Service Co. v. State, 312 So.2d 799 (Fla. 2d DCA 1975). fnj that case, the defendant was found liable without fault when one of its reservoirs broke and discharged phosphate slime into the Peace River, causing tremendous dam-, age. In applying the Rylands doctrine, our] court used the codification contained in the] Restatement of Torts (Second), sections 5191 and 520. These sections suggest imposition j of strict liability for damages caused by! abnormally dangerous activities and then! lists six factors helpful in determining; whether an activity is abnormally danger-] ous. :

§ 519. General Principle.
(1) One who carries on an abnormally) dangerous activity is subject to liability j for harm to the person, land or chattels of] another resulting from the activity, although he has exercised the utmost care; to prevent the harm.
(2) This strict liability is limited to the; kind of harm, the possibility of which makes the activity abnormally dangerous!
§ 520. Abnormally Dangerous Activities. j
(a) existence of a high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

I In discussing these factors, our court noted that the first four factors weighed in favor of the plaintiffs while the final two factors weighed in favor of the defendant; however, though phosphate mining is not an inappropriate activity to the Peace River area and though the industry has significant value to the state and to the nation, our court concluded that:

[T]he rights of adjoining landowners and' the interests of the public in our environment require the imposition of a doctrine which places the burden upon the parties whose activity made it possible for the) damages to occur.

312 So.2d^at 804. We agree with that result, and we find it applicable here. Impounding thousands of gallons of liquified manure on one’s property certainly presents some risk to the person, land, or chattels of another. If it escapes, as the circumstantial evidence shows it did here, great harm results. Ineradicable risks attend such im-poundment despite' reasonable care. Like the slime reservoir in Cities Service,. the manure lagoon here is not a matter of common usage, and this, in our view, dovetails with the non-natural use of land to which the common law doctrine and the more modern Restatement doctrine address themselves. Finally, although such activity is not in itself inappropriate to a dairy farm area and although dairy farms have definite value to the community, the same policy considerations that warranted imposition of strict liability in Cities Service apply with equal force here. The testimony and documentary evidence presented by the appellants regarding the overflow from appel-lee’s lagoon and the damages to appellants’ property was sufficient to withstand a motion for directed verdict, and the jury should have been permitted to consider this theory of recovery.

Our conclusion that strict liability should be considered here may at first appear to be harsh; however, the calamity which befell the appellants here is neither unique nor without precedent. In fact, liability has frequently been imposed upon landowners for damages caused to neighboring property by water, Dye v. Burdick, 262 Ark. 124, 553 S.W.2d 833 (1977), by flowing effluent, Atkinson v. Herington Cattle Co., 200 Kan. 298, 436 P.2d 816 (1968), or by other noxious substances. Tinsley v. Monson & Sons Cattle Co., 2 Wash.App. 675, 472 P.2d 546 (1970). Though the liability imposed may travel under different names, the result, as a practical matter, is an application of the principles of strict liability. As Professor Prosser noted:

Actually even the jurisdictions which reject Rylands v. Fletcher by name have accepted and applied the principle of the case under the cloak of various other theories. Most frequently, in all of the American courts, the same strict liability is imposed upon defendants under the name of nuisance.
There is in fact probably no case applying Rylands v. Fletcher which is not duplicated in all essential respects by some American decision which proceeds on the theory of nuisance; and it is quite evident that under that name the principle is in reality universally accepted,

Law of Torts § 78 at 512, 513.

We agree with Prosser’s observation and note that the instant case could as easily be decided under a nuisance theory. Our conclusion is borne out by the following language in 58 Am.Jur.2d, Nuisance § 79, where the authors state:

Although it is not a nuisance per se, a dairy, creamery, or milk depot may be a nuisance when operated in such a manner as to disturb seriously the comfort of the occupants of nearby residences, as where it creates unreasonable and harmful noise and vibration, or pollutes the air by smoke, soot, or cinders, or by noxious odors, fumes, or vapors, or pollutes water or soil, or produces injury in other ways.

And for a detailed discussion of the theory of nuisance as it is applied to dairy operations which cause harm to or interfere with the use of the property of another, see 92 A.L.R.2d 974. The application of the nuisance theory to a dairy or similar livestock operation is consistent with our state’s general definition of nuisance as an activity which disturbs the free use of one’s property or renders ordinary use or occupation of it physically uncomfortable. Jones v. Trawick, 75 So.2d 785 (Fla.1954); Mayflower Holding Co. v. Warrick, 143 Fla. 125, 196 So. 428 (1940).

Three decisions from two other jurisdictions, all factually very similar to the instant case, clearly demonstrate that liability may be imposed whether under the guise of a nuisance theory or a theory of strict liability. In Neuhoff Bros. Packers, Inc. v. Janek, 405 S.W.2d 233 (Tex.Civ.App.1966), the defendant, who operated a feed lot, collected manure and other material in some catch basins. When the basins overflowed and polluted a creek running through the plaintiff’s property, he sued and recovered under a nuisance theory. Likewise, in Lacy Feed Co. v. Parrish, 517 S.W.2d 845 (Tex.Civ.App.1974), the plaintiff recovered damages for a nuisance caused by the filthy runoff from the defendant’s turkey pens, which entered upon and damaged the plaintiff’s property. Although the court applied a nuisance theory, it noted that this was not the type of nuisance case that required a finding of negligence. “Where the things necessary to be done in the operation of a lawful business cause injury to others, the right to compensation when allowed, is not dependent upon the existence of negligence.” 517 S.W.2d at 850. The court concluded: “The truth of the matter was the Defendant was conducting a business operation that even with the exercise of care was still invading Plaintiff’s property and causing him damage.” 517 S.W.2d at 852. Thus, Lacy Feed Co. could as easily have been characterized as calling for the imposition of strict liability.

Finally, and most clearly on point factually, there is Bower v. Hog Builders, Inc., 461 S.W.2d 784 (Mo.1970). In Bower, the defendant operated a hog farm and maintained upon its farm open septic lagoons filled with hog manure which overflowed and ran onto the plaintiff’s property rendering it almost completely useless. Using a nuisance theory, the court affirmed an award of compensatory and punitive damages for the plaintiff.

Bower could likewise have been easily decided under the doctrine of strict liability. We have applied that theory because we believe that our earlier decision in Cities Service requires us to do so. We could have easily reached the same result under a nuisance theory. The conclusion is inescapable that no matter what theory is invoked by a plaintiff whose property is damaged by the lawful activities conducted upon or conditions existing on the land of another, the key consideration will always be that useful but dangerous activities must pay their own way.

REVERSED and REMANDED.

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

      . This lagoon is called an anerobic lagoon, that is, the organisms within it can only live in the absence of free oxygen. Clark, Water & Water Rights, Vol. 7 (1976). An anerobic lagobn is different from an aerobic lagoon in that the latter fosters organisms that can only exist in the presence of oxygen. Clark.

      . An aerobic lagoon.


text:
    Henry SMITH and Torie Brandow, Appellants, v. STATE of Florida, Appellee.
    No. 82-2236.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1983.
    Rehearing Denied Oct. 20, 1983.

      Richard Mars and Jack T. Edmund of Edmund <& McDaniel, Bartow, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellants’ convictions for possession of cocaine and marijuana depended upon the validity of a search warrant. Their attack on the warrant was predicated primarily upon the staleness of facts set forth in the affidavit.

The affidavit for the warrant was signed on May 26, 1982, and the warrant was issued the same day. The affidavit first recited that the affiant was a narcotics investigator for the sheriff’s office and detailed the affiant’s experience in combating the trafficking of controlled substances. As a basis for probable cause, the affidavit then stated:

On 16 February 1982, your affiant was working in an undercover capacity in the Plant City area. At approximately 2:30 pm [sic] your affiant met with a black male known as “Quasar” at his residence of 805½ South Thomas Street. The purpose of the meeting was to purchase a gram of cocaine. Your affiant made two previous purchases of cocaine from said subject at his residence and as in previous meetings, the subject said that he would have to go and obtain the cocaine from another location. The subject advised your affiant that he would bring the cocaine to a residence at 501 Ball Street, apartment number six, where your affi-ant resided in an undercover capacity. The subject “Quasar” received money from your affiant and left the scene in his vehicle, a 1965 Chevrolet Impala two door, bearing Florida license “NGE-158.” Detective Jessie observed the subject arrive on Ohio Street at approximately 2:36 pm [sic] and walk towards a duplex apartment building. Subject “Quasar” left after approximately sixty seconds and arrived at 501 Ball Street, apartment number six, at 2:41 pm [sic] where he delivered one gram of cocaine to your affiant. Your affiant personally ran a field reagent test on said cocaine which showed positive.
On April 20, 1982, at approximately 5:10 pm [sic] Detective Tommy Jessie went to the residence of the subject “Quasar” and again discussed a purchase of cocaine. The subject, as in the previous transactions, received money from Detective Jessie and proceeded to go and obtain the cocaine while Detective Tommy Jessie remained at his residence of 805½ South Thomas Street. Detective Jessie observed the subject leave and he was followed to the address of 506 East Ohio Street by Detective M. Harrison. Detective Harrison advised your affiant that the subject went directly to the address on Ohio Street when he departed from Detective Jessie. Your affiant observed the subject known as “Quasar” enter apartment number two of the duplex at 506 East Ohio Street where he emerged after approximately sixty seconds. The subject went directly to his vehicle and left the scene west bound on Ohio Street. Detective Harrison and your affiant servailled [sic] the subject while he proceeded directly to his residence and delivered .5 grams of cocaine to Detective Jessie. Detective T.E. Jessie performed a field reagent test on the said cocaine which showed positive.
Based on the above, your affiant has reason to believe and does believe that the residence described in Exhibit “A” is being used as a storehouse for controlled substances, to-wit: cocaine, contrary to the laws of the state of Florida.

Thus, the last transaction referred to in the affidavit occurred thirty-six days before the issuance of the search warrant.

The length of time between the events relied upon to obtain a search warrant and the date of issuance bears upon probable cause. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Generally, as the time period increases there is less likelihood that the items sought to be seized will be found on the premises described in the warrant. See 100 A.L.R.2d 525 (1965). The rule of thumb is thirty days, but each case must be decided upon its own particular circumstances. Rodriguez v. State, 297 So.2d 15 (Fla.1974); Hamelmann v. State, 113 So.2d 394 (Fla. 1st DCA 1959). Evidence of an on-going pattern of criminal' activity may justify an extended time lapse. Hudson v. State, 368 So.2d 899 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 345 (Fla.1979); Hess v. State, 309 So.2d 606 (Fla.App.1975).

The affidavit reflects that the undercover officer had made four purchases of cocaine from Quasar. In each instance, after agreeing upon the sale, Quasar went to another location to obtain the cocaine. On the last two transactions, he was observed going to the apartment described in the search warrant. He stayed in the apartment for a short period of time and then delivered the cocaine directly to the affiant. It was logical to assume that Quasar obtained the cocaine from the same source on the prior occasions. We conclude that the affidavit contained sufficient probable cause to believe that as of the date of the warrant cocaine would be found stored on the described premises.

AFFIRMED.

OTT, C.J., and RYDER, J., concur.


author: PER CURIAM.

text:
    Robert FOX, Appellant, v. STATE of Florida, Appellee.
    No. 82-1138.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Rehearing Denied Nov. 2, 1983.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., and Faith Mesnecoff, Legal Intern, for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State v. Bankston, 435 So.2d 269 (Fla. 3d DCA 1983).


text:
    William ALVIN, as Personal Representative of the Estate of Frederick Scheske, Deceased, Appellant, v. Mike BERRY, as Personal Representative of the Estate of Michele R. Anguilano, Deceased, Appellee.
    No. 83-350.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1983.
    Rehearing Denied Oct. 31, 1983.

      Adams, Ward, Hunter, Angones & Adams and Steven Hunter, Miami, for appellant.
    Hoffman & Hertzig and David Hertzig, Coral Gables, for appellee.
    Before NESBITT, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The record reflects that the evidence presented by appellant is incompetent to raise a genuine issue of material fact on the question of the order of decedents’ deaths. We find, therefore, that under the facts appearing without controversy, appellant cannot prevail and that the trial court properly entered summary judgment in favor of appellee. See Mejiah v. Rodriguez, 342 So.2d 1066 (Fla. 3d DCA 1977); Megdell v. Wieder, 327 So.2d 781 (Fla. 3d DCA), cert. denied 341 So.2d 1087 (Fla.1976). Affirmed.


text:
    Wayne DAVIDSON; W.D. Ranch, Inc., a Florida corporation for profit; W.D. Ranch, a partnership consisting of W.E. Davidson, R.C. Reilly, D.G. Snow, D. Charland, T. Jenkins, J.E. Beal, P. Arnett, Clyde Smith and United States Fidelity & Guaranty Company; and the Collier Company, Appellants, v. Audrey HOWARD, Personal Representative of Clifford Howard, deceased, on behalf of The Estate of Clifford Howard, Dale Howard and Audrey Howard, Appellees. Wayne DAVIDSON; W.D. Ranch, Inc., a Florida corporation for profit; W.D. Ranch, a partnership consisting of W.E. Davidson, R.C. Reilly, D.G. Snow, D. Charland, T. Jenkins, J.E. Beal, P. Arnett, Clyde Smith and United States Fidelity & Guaranty Company; and Audrey Howard, Personal Representative of Clifford Howard, deceased, on behalf of The Estate of Clifford Howard, Dale Howard and Audrey Howard, Appellants/Cross Appellees, v. The COLLIER COMPANY, Appellee/Cross Appellant.
    Nos. 80-2180, 80-2185.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Rehearing Denied Nov. 8, 1983.

      Nancy Little Hoffman, P.A., Fort Laud-erdale, for W.D. Ranch.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg, P.A., and George P. Telepas, P.A., Miami, for Audrey Howard.
    G. William Allen, Jr., of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for The Collier Company.
   DOWNEY, Judge.

These consolidated appeals involve a judgment for the plaintiffs in a wrongful death action and a summary judgment on a cross claim for indemnity.

The evidence reflects that on February 23, 1976, Clifford Howard was killed when his gasoline truck hit a cow on State Road 84 during the night time. The cow, which got on the road through a 60 or 120 foot gap in a fence around the land on which it was grazing, was owned by Weiser and Freidheim, Incorporated. On January 1, 1976, the Collier Company, owner of a large tract of land abutting State Road 84, had leased said property to W.D. Ranch, a partnership, for grazing purposes. Sometime prior to February 23, 1976, W.D. Ranch allowed Weiser and Freidheim, Incorporated, to graze cattle on said property. The rental under the Collier-W.D. Ranch grazing permit was the equivalent of the amount of the county ad valorem taxes assessed against the property. Under its arrangement with W.D. Ranch Weiser and Freidheim paid the taxes, ran several hundred head of cattle on the property, and was supposed to maintain the fences around the property. In addition to Weiser and Freidheim’s cattle grazing operation, W.D. Ranch used the property for recreational purposes, such as hunting and YMCA and SWAT team activities, and for some farming.

This suit was commenced by Howard’s widow and son and the personal representative of his estate against the Collier Company; W.D. Ranch, a partnership; and Weiser and Freidheim, Incorporated. Prior to trial the plaintiffs settled with Weiser and Freidheim for $350,000, and the trial court granted a pretrial summary judgment in favor of the Collier Company against W.D. Ranch on a cross claim for indemnity. The jury returned a verdict in favor of the plaintiffs and against both the Collier Company and W.D. Ranch for $760,000 finding each defendant 45% negligent and the decedent 10% negligent.

The sixth amended complaint, upon which the case went to trial, had similar allegations of negligence against the Collier Company and W.D. Ranch. Both allegedly were custodians of the cow with which Clifford Howard’s truck collided. Collier allegedly “had a duty to maintain its fences in order to restrain cattle grazing on its land from running at large upon public roads, Florida Statute 588.14;” and W.D. Ranch allegedly “had a duty to restrain the cattle in their custody from running at large upon public roads. Florida Statute 588.14 _” Further, Collier allegedly knew or should have known that, cattle on its land were roaming upon the public road prior to the accident, and W.D. Ranch allegedly knew or should have known that cattle in its custody were roaming upon the public road prior to the accident. Collier allegedly acted willfully and recklessly in failing to inspect and maintain fences in good condition for the enclosure of “the cattle” and W.D. Ranch purportedly acted willfully and recklessly in failing to inspect and maintain a fence in good condition for the enclosure of “the cattle in its custody

Although the parties never did agree upon the issues in the case the court charged the jury that the issue to be decided between the plaintiffs and the Collier Company was whether Collier “was negligent in its maintenance of the fence,” and the issue to be decided regarding W.D. Ranch was “whether W.D. Ranch had care, control or custody of the cattle involved in this case, and if so, whether such partnership was negligent in its maintenance of the fence.”

During the trial the parties were primarily concerned with applicability of Chapter 588, Florida Statutes (1975). A portion of this chapter, Sections 588.12-588.26 (Chapter 25236, Laws of Florida (1949)), is known as the Warren Act whereby the legislature in 1949 declared it necessary to have a statewide uniform livestock act embracing all public roads. § 588.12, Fla.Stat. It was the purpose of the act to place a duty upon all owners of livestock to prevent their stock from running at large or straying upon the public roads of this state. § 588.-14, Fla.Stat. If an owner of livestock either willfully, intentionally, carelessly, or negligently allowed his stock to run at large or stray upon public roads he became liable for any damage to persons or property. § 588.15, Fla.Stat. The act defines an “owner” of livestock as any person “owning or having custody of or in charge of livestock.” § 588.13(2), Fla.Stat.

Confusion has prevailed in this case because the plaintiffs have proceeded upon the theory that Section 588.11, Florida Statutes (Chapter 25357, § 7, Laws of Florida (1949)), which reads as follows:

The owner of legally enclosed land shall maintain in reasonable good condition the fence or enclosure around such land and shall maintain in legible condition any and all posted notices as required by §§ 588.09, 588.10, but a substantial or reasonably effective compliance with the provisions of §§ 588.011, 588.09, 588.10, disregarding minor or inconsequential differences in the size, shape or condition thereof, shall be sufficient for the purpose of evidencing the legal enclosure of said land.

requires all owners of land to fence their property. Thus, the plaintiffs contended throughout that the Collier Company as the owner of the land had a continuing duty to maintain adequate fencing on the property though the Collier Company neither owned nor had custody or control of any livestock on said property. We hold that is an improper construction of Section 588.11 and a misunderstanding of the Warren Act. The latter act imposes a duty not on land owners but on the owners of livestock. They are enjoined to keep their livestock off the public roads, whether by fence or wall or simple tether, it matters not. The sections of Chapter 588 having to do with a “legal fence” and “legally enclosed” land have nothing to do with the Warren Act. Rather, they were enacted to help protect landowners against human trespassers. Under Section 588.09, Florida Statutes, land becomes legally enclosed (or posted, the terms being synonymous) land when: (a) it is enclosed by means of a legal fence; (b) notices to the public are placed in a particular manner along the non-acqueous boundaries of the land; and (c) the fences, enclosures, and posted notices are maintained in a certain way. - Sections 588.011(l)-(3), Florida Statutes, describe the legal fence that satisfies requirement (a). Section 588.-10, Florida Statutes, describes the signs and posting thereof that satisfy requirement (b). Section 588.11, Florida Statutes, does two things. First, it describes the maintenance necessary to satisfy requirement (c), and second, it provides that substantial compliance with fencing and sign posting requirements (a) and (b) is sufficient to render land legally enclosed land. We hold that Section 588.11, Florida Statutes, imposes no absolute legal duty upon an owner of land to fence his land or to maintain a fence upon his land or suffer adverse legal consequences for failing to erect or maintain a legal fence. All Section 588.11 does (or rather did at the time it was passed) is to impose a conditional legal duty upon a landowner to maintain legal fences and legal signs around his land if that land is to have the protection of criminal trespass statutes. See 1950 Op.Att’y Gen.Fla. 050-13 (January 13, 1950); 1954 Op.Att’y Gen.Fla. 054-61 (March 11, 1954); 1957 Op.Att’y Gen.Fla. 057-359 (November 15, 1957). Thus, we conclude that the liability plaintiffs seek to impose must be visited upon the owner of the cow in question as defined by Section 588.13, viz., the legal owner or the person having custody of or in charge of the animal, and not the person who is merely the legal owner of the land on which the cow was grazing.

Although the complaint herein charged the Collier Company with owning the property and having custody of the cow in question the record is devoid of any proof of custody or control by Collier. At trial the plaintiffs never contended Collier had custody or control of the cow; rather they traveled on the theory that as owner of the land Collier was obligated to maintain the fences. Accordingly, there was no basis for submitting the case against the Collier Company to the jury and said defendant’s motion for directed verdict should have been granted.

The complaint against W.D. Ranch was failure to maintain the fences so as to restrain cattle in its custody. During the trial W.D. Ranch offered evidence that Weiser and Freidheim carried insurance on the cattle on the property in order to show Weiser and Freidheim had control and custody. Plaintiffs objected to the admissibility of such evidence on the ground that they were not contending that W.D. Ranch had custody of the cattle but rather that W.D. Ranch had custody of the fences; that W.D. Ranch had an obligation to maintain the fences because there were cows on the property — not because W.D. Ranch had custody or control of the cattle. In closing argument plaintiffs contended that who owned the cattle was irrelevant; who had custody of the land was the vital question.

The evidence is clear that W.D. Ranch was a permittee or lessee under a written contract with the Collier Company. One paragraph of that contract provided that W.D. Ranch was to fence the outer boundaries of the land while another paragraph provided no fence was to be constructed without prior approval of the owner. During the period of time involved here W.D. Ranch did not graze cattle on the property. Its use of the property was for recreational purposes. W.D. Ranch allowed Weiser and Freidheim to graze cattle and required Weiser and Freidheim to maintain the fences. W.D. Ranch had no interest in the cattle Weiser and Freidheim grazed there nor did W.D. Ranch exercise any control over them. Therefore, W.D. Ranch had no liability to the plaintiffs, and the court should have granted its motion for a directed verdict.

Since we must reverse the judgment against both the Collier Company and W.D. Ranch we need not treat the appeal from the summary judgment against W.D. Ranch. That judgment will go for naught.

REVERSED.

BERANEK and WALDEN, JJ., concur.


author: BERANEK, Judge.

text:
    Russell E. DENT, Appellant, v. Karen Lynn DENT, Appellee.
    No. 83-585.
    District Court of Appeal of Florida, Fourth District.
    Sept. 21, 1983.
    Rehearing Denied Oct. 25, 1983.
    Melvyn B. Frumkes and Cynthia L. Green of Law Offices of Melvyn B. Frumkes, P.A., Miami, for appellant.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P.A., Fort Lauderdale, for appel-lee.
   BERANEK, Judge.

This is an interlocutory appeal from a temporary support and attorney’s fee order in a contested dissolution of marriage proceeding. The husband filed a petition for dissolution of marriage in October, 1981, and the parties entered into a preliminary and partial marital settlement agreement which provided for support. Eventually, after expiration of the agreement, issues as to the amount of support were considered by a master who entered two reports. Both husband and wife filed exceptions to the reports of the master, and a hearing on those exceptions took place before the circuit court. The court sustained the wife’s exceptions and entered an order increasing the amounts previously determined by the general master. The hearing before the circuit court consisted of argument of counsel and demonstrated that there had been substantial conflict in the evidence before the master.

On appeal the husband asserts the trial court erred in considering letters from opposing counsel while the exceptions were under advisement. While we do not condone sending letters to judges in the abstract, no error has been made to appear on this issue herein. Both sides sent letters and they were in the nature of supplements to the previous arguments.

The husband also asserts that the court erred because the master’s findings were amply supported by evidence and because there had been no mistakes of law. The law of this state is that the trial court is bound by a master’s factual findings when they are supported by competent evidence. This court has so held in Fodor v. Fodor, 379 So.2d 466 (Fla. 4th DCA 1980), and Sitomer v. Sitomer, 397 So.2d 373 (Fla. 4th DCA 1981). In Fodor, we stated at 468:

The law is clear that the trial court should approve a master’s findings of fact and recommendations, unless the master has misconceived the legal effect of the evidence. This is so because the master is in a better position to make determinations of fact, having seen the witnesses and listened to the testimony. The trial court will not overturn the master’s findings unless they are clearly erroneous. (Citations omitted.)

The opinion in Sitomer reaches the same conclusion. “[A] trial judge may not reject a master’s findings of fact unless the court concludes that the findings of fact are clearly erroneous.” (Id. at 374).

Appellee in the instant case at no time alleged errors of law with respect to the general master’s report regarding temporary support. She complained mainly with regard to the master’s factual findings. As stated in Matos v. Matos, 421 So.2d 180, 184 (Fla. 2d DCA 1982);

[WJhere the trial judge chooses to appoint a master to hear the testimony and make findings of fact and determinations based thereon, the trial judge loses the prerogative of substituting his judgment, call, or determination in lieu of those lawfully reached by the master. His role essentially is the same, in these respects, as those of this court in reviewing the trial judge’s findings and determinations had he personally heard the testimony. (Emphasis supplied.)

The master’s factual findings indicate that he concluded that the husband had the ability to pay support to his wife and children in the amount of $2,365 per month and maintain the mortgage payments on the former marital residence, in addition to maintaining a condominium, the New Jersey home, and a Georgia residence occupied by the husband’s mother. The trial judge, however, overturned these findings of the master and ordered additional support. There was adequate evidence to support the master’s findings and the court erred in substituting its judgment of the conflicting evidence for that of the master. The order below is thus reversed and the matter remanded for further proceedings. In view of this reversal, the court’s order awarding the wife attorney’s fees is also vacated subject to reconsideration on remand.

REVERSED AND REMANDED.

GLICKSTEIN and WALDEN, JJ., concur.

ORDER ON REHEARING

This court’s order on attorneys’ fees entered September 21, 1983, is clarified as follows. The motion for fees filed in this court by Karen Lynn Dent is hereby granted, and the amount of said appellate attorneys’ fees shall be set by the trial court after further hearing. The trial court’s assessment of appellate fees of $3,500 by order of April 26, 1983, is set aside, and the amount of the fee shall be reset taking into consideration the fact that the wife was unsuccessful in defending the husband’s interlocutory appeal. The opinion of this court of September 21, 1983, was not in reference to appellate fees.


author:
GRIMES, Acting Chief Judge.
      EVANS, VERNON W., Jr., Associate Judge,

text:
    Phil R. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 82-1670.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.
    Rehearing Denied Oct. 31, 1983.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from a conviction of grand theft in which the sole point is whether the court erred in permitting an undisclosed witness to testify without first conducting an adequate hearing as required by Richardson v. State, 246 So.2d 771 (Fla.1971).

At trial Lonnie White testified that he had been arrested for driving while under the influence of alcohol. Because this was his second arrest in two years, he expected to receive a jail sentence if convicted. The following morning White went to the WagOn-Inn bar and told the proprietor about his arrest. Appellant overheard the conversation and informed White that he could fix the ticket since Pasco was his county. Appellant then made a telephone call and told White he would be back in touch with him in about an hour. The bar owner and another employee were called as witnesses to corroborate this conversation.

White further testified that appellant later called him at the bar and said that it would cost $3,500 to take care of the ticket. White gave appellant a partial payment of $2,100. Several weeks later, White left Florida for Indiana. He left his checkbook with one signed check in appellant’s possession. The check was later completed in the amount of $1,650 and cashed by appellant. White missed a scheduled court appearance, and a warrant was issued for his arrest. When White telephoned appellant, he was informed that a public official required a $15,000 political contribution and that White owed $7,500. White sent appellant a money order for $1,000 and wired him an additional $6,500.

During cross-examination appellant’s counsel elicited from White that he had confided in his wife concerning his DWI arrest. Counsel then made the point that his wife was not listed as a state’s witness. The following morning the assistant state attorney announced that he wished to call Mrs. White as a witness. Appellant objected because her name was not furnished on the witness list. Following adjournment for lunch, the court held a hearing to consider whether to permit Mrs. White to testify. The assistant state attorney reported that until that morning the state had not talked to Mrs. White and did not know of her potential as a witness. She had been living in Indiana and had only come back to Florida to accompany her husband to the trial. Appellant’s counsel stated that he had talked with Mrs. White during the lunch hour for about thirty minutes and that some of her testimony would be damaging to appellant. The court reasoned that the state had been somewhat neglectful for not listing Mrs. White as a witness but decided to permit her to testify. The court evidenced concern over the implication left with the jury that Mrs. White was an important witness that the state was not intending to call. Mrs. White’s testimony that she received telephone calls from appellant urging her to tell Mr. White to send him $7,500 to fix the ticket was significant to the extent that it contradicted appellant’s defense that White was simply repaying a loan.

The thrust of appellant’s argument is that the court conducted an inadequate Richardson hearing because it failed to determine the prejudice accruing to the defense as a result of the failure to disclose Mrs. White’s name on the witness list. We believe, however, that there was an adequate Richardson hearing. The record appears to reflect all of the available information on the subject which could have been developed. The failure to make formal findings concerning each of the pertinent Richardson considerations does not constitute reversible error. Ansley v. State, 302 So.2d 797 (Fla. 1st DCA 1974). The court’s comment that it did not know whether Mrs. White’s testimony would prejudice the appellant undoubtedly referred to substantive prejudice, whereas a Richardson inquiry is directed toward procedural prejudice. Wilcox v. State, 367 So.2d 1020 (Fla.1979). The more serious question is whether, given the knowledge of all the circumstances, the court erred in permitting Mrs. White to testify.

The state can hardly be faulted for not having considered Mrs. White as a potential witness until such time as counsel’s cross-examination prompted it to do so. By the time Mrs. White took the stand, appellant’s attorney had already talked to her and found out what she was going to testify. Appellant’s attorney did not request a continuance in order to take her deposition. Although counsel was deprived of the remote possibility of obtaining impeaching evidence concerning Mrs. White’s reputation in the community for truth and veracity, this is always the case when one whose name was not on the witness list is permitted to testify.

Richardson, itself, recognizes that once there has been an adequate inquiry into all the surrounding circumstances, the trial court has discretion to determine whether the state’s failure to list a witness caused harm or prejudice to the defendant. We cannot say that the court abused its discretion in permitting Mrs. White to testify.

AFFIRMED.

RYDER, J., concurs.

EVANS, VERNON W., Jr., Associate Judge, dissents with opinion.

EVANS, VERNON W., Jr., Associate Judge,

dissenting.

The Richardson hearing conducted by the trial court disclosed that during the presentation of the state’s case the prosecutor learned that the wife of the principal complaining witness had evidence to offer in support of the state’s case. He then called this witness and, of course, appellant objected and moved to exclude the witness for failure of the state to disclose the witness prior to trial, notwithstanding appellant’s timely demand for witness disclosure. A Richardson-type hearing was conducted with the prosecutor admitting he had never spoken to the witness before trial and that he was unaware of her potential value as a witness. He argued that appellant’s counsel had opened the door to calling this undisclosed witness because of the nature of appellant’s cross-examination of the principal complaining witness, husband of the undisclosed witness. Appellant’s counsel was allowed thirty minutes during a lunch recess to interview the witness and this occurred prior to the time the court held the Richardson hearing.

Appellant’s counsel asserted prejudice in that he had not had an opportunity to depose the witness under oath and have such deposition transcribed, nor had he had an opportunity to question the witness about her background or to investigate the witness for truth and veracity in her community-

After hearing argument the trial judge concluded that the state should have notified the appellant of the existence of the witness and that the state should have taken her deposition. Additionally the trial judge stated that he didn’t know why the state had not done so and at that juncture in the hearing the trial judge announced that he was going to allow the witness to testify and gave his reasons for this ruling.

On the subject of prejudice to the appellant as a result of being confronted during the trial with an undisclosed witness, the trial judge stated that he did not know whether the witness’ testimony would be prejudicial to the appellant but notwithstanding this allowed the witness to testify.

The Richardson rule requires the trial judge in this situation to conduct an adequate hearing in order to determine at least three things: (1) whether the violation of discovery rules is willful or inadvertent; (2) whether the violation was trivial or substantial; (3) whether prejudice accrues to the defense as a result of failure to disclose.

The lower court failed to address the question of prejudice to the appellant in any meaningful way and indeed seems to have confused procedural prejudice which Richardson contemplates with the question of whether or not the witness’ testimony would actually be prejudicial to appellant on the issues in the case. It can reasonably be assumed in most cases that the state would not offer the evidence if it was not prejudicial in the latter sense to the defendant on trial. Procedural prejudice, however, is another thing and deals with the ability of the defendant in a criminal case to have a fair opportunity to prepare for trial.

It is my understanding that it is the trial court’s duty to make an adequate inquiry to determine whether the defendant in a criminal proceeding was harmed or prejudiced by the state’s noncompliance and that the trial court’s failure to do so requires a reversal unless the error is harmless. See Smith v. State, 372 So.2d 86 (Fla.1979); Lightsey v. State, 350 So.2d 824 (Fla.2d DCA 1977). In my opinion the statements of the trial judge noted in this opinion clearly disclose that an adequate hearing on the issue of prejudice which would permit an undisclosed witness to testify without sanctions was not conducted and the error was certainly not harmless. I would reverse for new trial.

      . THE COURT: “I am going to allow the witness only because of her absence and the fact that she sits in a motel room down here and is available, presumably, to come into this courtroom and testify, being only thirty minutes driving time or less from the courthouse, the jury is going to take a very suspicious and jaundiced viewpoint of the prosecution and may totally discredit everything that Mr. White has said.”

      . THE COURT: “I am not sure there is going to be any prejudice coming out of this. It depends on her testimony, how it shapes up and whatnot. You may find that her testimony is not prejudicial, it might even be beneficial to Defense.”


author: RYDER, Judge.

text:
    Roderick E. MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2130.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

An information was filed on September 15, 1980, charging Mullins with burglary, grand theft, and dealing in stolen property. Soon thereafter, the state filed two additional informations charging appellant with two more counts of grand theft. Mullins was declared insolvent, and a public defender was appointed to represent him. Appellant pleaded guilty to the burglary charge and the three grand theft charges on February 5, 1981. He was adjudicated guilty and placed on probation for three years on each count, to run concurrently. Additionally, one condition of his probation was that he was to serve the first six months in county jail; however, on May 13, 1982, the court granted a motion to modify probation and released appellant.

A violation of probation affidavit was filed on July 26, 1982, alleging that Mullins had violated condition (5) of his probation, which required him to remain at liberty without violating any law. The affidavit specifically alleged that Mullins had been charged with battery and with trespass in an occupied structure on February 15, 1982, and had also been arrested on May 2, 1982, for disorderly intoxication.

On August 27, 1982, appellant appeared without counsel for a probation revocation hearing before the trial judge. The following colloquy took place at the hearing:

MR. HA VICE: Your Honor, this is Roderick Mullins. He’s been charged by a misdemeanor conviction [sic] of disorderly conduct or disorderly intoxication.
THE COURT: Do you intend to have a lawyer represent you?
THE WITNESS (defendant): No.
THE COURT: Do you have a lawyer to represent you?
THE WITNESS: No, I don’t think I need one.
THE COURT: Have you ever been charged with a violation of the terms of your probation and specifically issue number five which basically said that you’re not to violate any law of the State of Florida?
THE WITNESS: Yes, sir.
THE COURT: Are you prepared at this time to enter a plea to that offense or that charge?
THE WITNESS: Yes, sir.
THE COURT: How do you plead?
THE WITNESS: I plead guilty.

The court, thereafter, revoked appellant’s probation and sentenced him to concurrent terms of two years and six months for each of the offenses. Then the court informed Mullins of his right to appeal, whereupon appellant stated he wished to appeal. The court found that Mullins was indigent and appointed a public defender to represent him on his appeal.

Mullins now contends he did not knowingly and intelligently waive his right to counsel at both his probation revocation hearing and the sentencing hearing which followed. We agree, set aside his plea of guilty to charges relating to violation of his probation, the revocation of probation and the sentence imposed as a result thereof.

In Smith v. State, 427 So.2d 773 (Fla. 2d DCA 1983), this court reiterated the principle that “an indigent probationer is entitled to counsel at a hearing involving revocation of probation as well as at the time of sentencing, absent valid waiver of right to counsel.” See also Herrington v. State, 207 So.2d 323 (Fla. 2d DCA 1968). Thus, it is clear in this district that a probationer must be informed of his right to counsel prior to or at the beginning of a probation revocation hearing. Accordingly, because “ ‘the decision to deprive a probationer of his freedom is as critical as the subsequent imposition of sentence’ ”, Smith at 774, citing Gargan v. State, 217 So.2d 578 (Fla. 4th DCA 1968), a trial court must inquire as to the validity of any waiver of counsel pursuant to the requirements set forth in Williams v. State, 421 So.2d 768 (Fla. 2d DCA 1983), and Florida Rule of Criminal Procedure 3.111(d).

In the case sub judice, it is evident from the record the court knew appellant was not represented by counsel but did not inform appellant of his right to counsel. Moreover, appellant’s apparent waiver of counsel was invalid in any event because the court also failed to properly inquire of appellant as to the legal sufficiency of that waiver. Williams, supra; Smith, supra. Thus, it was reversible error for the court to revoke probation as appellant was not advised of his right to counsel and did not waive that right.

We need not address appellant’s second contention as to the right to counsel at sentencing in light of our resolution of the first issue.

REVERSED and REMANDED for proceedings consistent herewith.

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

      . But see Thompson v. State, 413 So.2d 1301 (Fla. 4th DCA 1982) (recognizing in dictum the holding of Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), that the “right to counsel in all probation revocation proceedings is not absolute”); Grandin v. State, 421 So.2d 803 (Fla. 3d DCA 1982) (recognizing in dictum the same principle of Gagnon that a probationer “does not have a right to appointed counsel at a probation revocation proceeding unless special circumstances” are present).


text:
    Ralph L. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-1432.
    District Court of Appeal of Florida, Second District.
    Sept. 23, 1983.
    Rehearing Denied Oct. 18, 1983.
   PER CURIAM.

This appeal is from the summary denial of a motion seeking post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Appellant alleged in his motion that the state arrested him for robbery on August 29, 1975. He maintains that he committed the offense on the same day. The state later charged him with robbery pursuant to section 813.011, Florida Statutes (1973), and he pled guilty to this offense, whereupon the court imposed a life sentence.

Appellant now argues that on August 29, 1975, section 813.011 was no longer in existence because the legislature had enacted a new robbery statute, § 812.13, Fla.Stat. (1975), with an effective date of July 1, 1975. This new statute, unlike section 813.-011, makes a distinction between armed and unarmed robbery. Appellant maintains that he should have been charged under section 812.13(2)(c) with unarmed robbery. Under this section, he could have received a maximum of fifteen years imprisonment; he could not have received a life sentence.

On the record before us, we do not truly know whether the offense was committed before or after the effective date of section 812.13. If it was committed after the effective date, it might well be that the sentence originally imposed upon appellant was proper under either section 813.011 or 812.13 if appellant was charged with armed robbery. The record reveals neither of these crucial circumstances to us. On the other hand, if appellant’s allegations are true, he may well be entitled to relief. The trial court, however, failed to either conduct an evidentiary hearing or to attach portions of the record which refute appellant’s allegations.

Accordingly, we reverse the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegations specified and attach to its order those portions of the record which conclusively show he is not entitled to relief, or hold an evidentiary hearing and then rule on the ground alleged in the above portion of the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So.2d 55 (Fla. 1st DCA 1982), and Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.

REVERSED and REMANDED.

BOARDMAN, A.C.J., and SCHEB and CAMPBELL, JJ., concur.

      . 813.011 Robbery defined; penalties. — Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be guilty of a felony of the first degree, punishable by imprisonment in the state prison for life or for any lesser term of years, at the discretion of the court.

      . 812.13 Robbery.—
      (1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
      (2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
      (b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (3)An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.


text:
    SHARED SERVICES, INC., Appellant, v. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellee.
    No. AR-198.
    District Court of Appeal of Florida, First District.
    Sept. 26, 1983.
    Charles B. Carter of Jones & Langdon, P.A., Gainesville, for appellant.
    Stephen W. Huss, Asst. Gen. Counsel, Dept, of Health & Rehabilitative Services, Tallahassee, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s right to challenge the existing rules under Section 120.56, Florida Statutes (1981).

MILLS, SHIVERS and ZEHMER, JJ., concur.


text:
    MARCO SURFSIDE, INC., Appellant, v. Alberto VELEZ and Mady Velez, Appellees.
    No. 83-516.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Rehearing Denied Nov. 2, 1983.

      George L. Hayes, III and Joseph Mancil-la, Jr., Miami, for appellant.
    McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria and George Volsky, Miami, for appellees.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

The final summary judgment under review is reversed and the cause is remanded to the trial court for further proceedings upon a holding that: (a) the trial court abused its discretion in failing to grant a rehearing in this cause and accept a late-filed affidavit when defendant/appellant’s counsel failed to attend the summary judgment hearing and timely file the subject affidavit due to an excusable error by counsel in noting on his calendar the date of the summary judgment hearing herein, see Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977); English v. Hecht, 189 So.2d 366 (Fla. 3d DCA), cert. denied, 194 So.2d 619 (Fla.1966), and (b) the late-filed affidavit defeats the plaintiff/ap-pellee’s entitlement to a summary judgment in this cause because it creates a genuine issue of material fact as to whether the plaintiff/appellant was furnished the required property report herein prior to signing the contract between the parties. See Holl v. Talcott, 191 So.2d 40 (Fla.1966); Law v. Royal Palm Beach Colony, Inc., 578 F.2d 98 (5th Cir.1978); 15 U.S.C. § 1701 et seq. (1974 & Supp.1978); Ch. 718, Fla.Stat. (1981).

Reversed and remanded.


author: DANIEL S. PEARSON, Judge.

text:
    FAR OUT MUSIC, INC., Far Out Productions, Inc., Far Out Management, Ltd., Steven Gold and Jerry Goldstein, Petitioners, v. Leroy Lonnie JORDAN, Sylvester Allen, Harold Brown, and Howard Scott, individually, and as the recording and performing musical group known as “War,” Respondents.
    No. 83-1820.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.

      Silver & Silver & Richard R. Booth and Ira S. Silver, Miami, for petitioners.
    Haddad, Josephs & Jack and Gary Ger-rard, Miami, for respondents.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   ON PETITION FOR WRIT OF CERTIORARI

DANIEL S. PEARSON, Judge.

In May 1983, the above-named petitioners appealed from a non-final order denying their motions to quash service of process and to dismiss the case for lack of jurisdiction over their persons. See Fla.R.App.P. 9.130(a)(3)(C)(i). Notwithstanding that the aforementioned appeal was still pending in this court (and is still pending to this date), the trial court in July 1983 ordered the petitioners to respond to a request for production of documents and to answer interrogatories served upon them. The petitioners now seek certiorari from this latter order, contending that until we have determined the issue on appeal, that is, whether the trial court has jurisdiction over their persons, the trial court’s exercise of jurisdiction over them by compelling discovery is a departure from the essential requirements of the law. We agree with this contention and grant the petition for writ of certiorari and quash the trial court’s order.

In Ward v. Gibson, 340 So.2d 481 (Fla. 3d DCA 1976), this court held that a defendant who has appealed an order determining that the trial court has acquired jurisdiction over his person may not be compelled to appear for deposition while that appeal is pending. The rationale of our decision was that:

“[Ijnasmuch as the subject matter of such an interlocutory appeal is the very question of the trial court’s right to proceed with an exercise of jurisdiction over the defendant, the trial court has a right to proceed with the cause but not to destroy the subject matter of the appeal.” Id. at 482.

The respondents apparently concede that they should not be permitted to seek discovery from these still putative parties as to matters going to the merits of their action. They argue, however, that they should be able to seek discovery of evidence which can be used to defeat the petitioners’ claim of lack of jurisdiction. But Ward v. Gibson makes no such distinction, and, indeed, given the rationale of that decision, no such distinction can be made. If indeed the respondents are, at this stage of the proceedings, arguably entitled to procure documents or testimony from the petitioners, they cannot do so by utilizing rules of discovery pertaining to parties. Instead, as Ward v. Gibson suggests, they must treat the petitioners as any other witnesses and attempt to procure answers and the production of documents from the petitioners by a subpoena duly served upon them.

Writ of certiorari granted; order under review quashed.


author: BASKIN, Judge.

text:
    Rita Joette Jones HALL, as the Daughter of Mary Ruth Jones and as the Personal Representative of the Estate of Ralph Benton Jones, Appellant, v. SENGRA CORPORATION, Appellee.
    No. 82-1668.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 1983.
    Norman S. Segall, Coral Gables, and Stuart M. Gold, Miami, for appellant.
    No appearance for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   BASKIN, Judge.

UPON MOTION FOR CLARIFICATION

Having considered appellant’s motion for rehearing and clarification, we withdraw our opinion of August 9, 1983 and substitute the following:

Finding that the appellant has been compensated by the trial court’s award of out-of-pocket expenses for medical bills and that the record contains no support for application of the collateral source rule, Hartnett v. Riveron, 361 So.2d 749 (Fla. 3d DCA 1978); see Janes v. Baptist Hospital of Miami, Inc., 349 So.2d 672 (Fla. 3d DCA 1977), cert. denied, 355 So.2d 512 (Fla.1978); Walker v. Hilliard, 329 So.2d 44 (Fla. 1st DCA 1976); Paradis v. Thomas, 150 So.2d 457 (Fla. 2d DCA 1963), we affirm.

Affirmed.

NESBITT, J., dissents and would adhere to the opinion of August 9, 1983.


author: NIMMONS, Judge.

text:
    Lawrence R. HALEY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. AQ-264.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1983.

      Robert A. Sandow of Slaughter & Slaughter, Live Oak, for appellant.
    W. Roderick Bowdoin of Darby, Peele, Page & Bowdoin, Lake City, for appellee.
   NIMMONS, Judge.

Lawrence R. Haley, who had sustained injuries in a 1980 automobile accident, appeals from a final judgment entered after a bench trial in which the trial court denied his claim against State Farm for recovery under a no-fault provision of his insurance policy. We affirm.

Haley, a disabled veteran who qualified for YA benefits under a federal vocational rehabilitation program, enrolled in August 1980 in a one-year licensed practical nursing program at the Vo-Tech Center in Suwan-nee County. He was eligible to receive YA benefits while enrolled in this program and, at the time of the accident, was receiving a subsistence allowance of $531 plus tuition and books.

On September 25, 1980, Haley fell out of the back of a pickup truck and sustained injuries for which he was hospitalized for 17 days and for which he remained under doctors’ care until July 1981.

Haley’s VA benefits for the vocational program were terminated in October 1980 since he was unable to continue in school. Haley was released by his doctor in July 1981 to resume his normal activities but was advised not to resume training for a nursing career because he was not “physically capable of working with patients.” Instead, Haley decided to study for the ministry and, at the time of the trial, was pastor of a church in Montana. Since ministerial studies did not qualify for VA educational benefits, he did not use any of the VA vocational educational eligibility therefor.

Haley sought recovery from State Farm for sums lost in an amount equal to the monthly benefits he had been receiving from VA. State Farm denied the claim and Haley filed suit to recover on the personal injury protection (PIP) benefits of the policy-

In conformance with the requirements of Section 627.736(l)(b), Florida Statutes (1979), the policy provided coverage for “loss of income and earning capacity due to the insured’s inability to work caused by his or her bodily injury.”

At trial, Haley did not seek to recover on the basis of any diminution in earning capacity. Indeed, no evidentiary predicate was attempted by Haley which would have supported a finding of any diminution in earning capacity. Instead, Haley’s claim was based upon his assertion that the termination of his educational benefits was a loss of income within the meaning of the policy and his claim was limited to recovery of those amounts which he had been receiving as VA benefits.

In the final judgment, the trial court observed that “this case revolves around the interpretation of Toss of earning capacity’ ” under the above statute and then went on to hold that, at the time of the accident, Haley “had no earning capacity and therefore could suffer no loss thereof.” We do not agree that the case revolved around the interpretation of “loss of earning capacity.” As previously noted, Haley did not even attempt to base his claim on such ground but instead asserted that the loss of the VA benefits was a loss of income under the policy. As to that assertion, the trial court ruled that the benefits had not been lost but merely deferred because he would remain eligible to obtain such vocational educational benefits until at least 1992.

Although the record does not reflect the specifics regarding the period of time for which a disabled veteran such as Haley is entitled to receive continuous monthly benefits for qualified vocational training programs, the parties at least tacitly concede that the 1992 eligibility period would have allowed Haley far more time than he would need to take full advantage of the balance of VA benefit “reserve.” Unlike lost income or wages, Haley has the capability of recouping from VA during his period of eligibility the sums he allegedly lost. We, therefore, agree with the trial court that Haley cannot be considered to have lost the sum of money which he had been receiving when he was attending school.

We are also of the view that the termination of the monthly payments Haley was receiving for attending school cannot be fairly construed to be “loss of income due to the insured’s inability to work caused by his bodily injury.” Although there appears to be little authority on this precise point, we are of the view that Haley’s attendance at school cannot be construed as “work” within the meaning of the statute and policy. In Tennessee C.I. & R. Co. v. Muscoda Local 123, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949 (1944), the court interpreted the meaning of the word “work” as used but not defined in the Fair Labor Standards Act:

And, in the absence of a contrary legislative expression, we cannot assume that Congress here was referring to work or employment other than as those words are commonly used — as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.

For the reasons stated, the judgment appealed is AFFIRMED.

ROBERT P. SMITH, Jr., and SHIVERS, JJ., concur.


text:
    GEORGIA PACIFIC CORP., Appellant, v. Alex BUTLER, Appellee.
    No. AQ-322.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1983.
    Jack A. Langdon, Gainesville, for appellant.
    Theodore M. Burt, Trenton, for appellee.
   PER CURIAM.

Contending that its handling of this workers’ compensation claim is “lacking in the display of unreasonableness required for a showing of malice, oppression, or willful, wanton, or reckless disregard of the rights of the claimant,” Exceptional Children’s Home & Nursery, Inc. v. Fortuna, 414 So.2d 1130, 1131 (Fla. 1st DCA 1982), the self-insured employer urges that we reverse the deputy’s order awarding “bad faith” attorney’s fees pursuant to section 440.34(2)(b), Florida Statutes (1979).

We affirm. Four episodes mar the employer’s handling of this claim: the employer ended temporary total benefits by declaring MMI, of which there was then no evidence; then implausibly misconstrued, as suggesting a medical consultation already inconclusively gotten, the Division specialist’s recommendation of a medical consultation on temporary partial disability; again resisted, some months later, claimant’s renewed claim for medical care; and, after finally capitulating on the medical care issue, waited more than two weeks to confirm that claimant’s disc surgery had validated his year-long claims of continuing pain, so finally paying past due benefits. Considered individually these episodes may not seem extraordinary. But in cumulative effect they represent a year’s betting by the servicing agent that claimant was of sound body when in fact he was not. The deputy could well have found this stonewalling offensive to the standards enunciated in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981) and its progeny, most particularly Holiday Care Center v. Scriven, 418 So.2d 322 (Fla. 1st DCA 1982), and sufficient to constitute “bad faith.”

AFFIRMED.

ROBERT P. SMITH, Jr., and BOOTH and WIGGINTON, JJ., concur.