text:
    LASAR MANUFACTURING COMPANY, INC., Appellant, v. Gary BACHANOV and Shearl Bachanov, his wife, Appellees.
    No. 82-218.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    Rehearing Denied Sept. 6, 1983.

      Blackwell, Walker, Gray, Powers, Flick & Hoehl and Diane H. Tutt and James E. Tribble, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Carroll, Halberg & Meyerson, William P. Cagney, III, Miami, for appel-lees.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   HENDRY, Judge.

Lasar Manufacturing Company appeals the denial of several post-trial motions following a jury trial in which it was the defendant. Because we find that prejudicial error occurred in the proceedings below, we remand this cause to the trial court for a new trial on damages only.

The facts of this case need be only briefly stated. Appellee was employed in the meat department of a large grocery store chain. A portion of his duties included grinding meat using a commercial grade meat chopper designed and manufactured by appellant. The design of the machine was such that an adult male could put his hand unimpeded into the throat of the grinder. While using the machine, appellee reached into the grinder to free a piece of meat which had become lodged, and his hand was pulled deeper into the machine and into contact with the chopping blade. As a result, ap-pellee lost portions of the thumb and first three fingers on his right hand. Appellee, who was right-handed, now has a permanent disability. The evidence adduced at trial supported the jury’s findings that appellant was negligent and that the meat chopper was defective when it left the possession of the appellant. The jury also found appellee to have been comparatively negligent, which negligence was assessed at 25 percent.

Appellant’s main point on appeal is that the trial court erred in allowing the appel-lees, on the second day of the trial, to amend their complaint to conform with the evidence presented and to include a prayer for punitive damages. Appellant made a timely objection in the trial court to the motion for leave to amend, and on appeal argues strenuously that the appellant was surprised and prejudiced by the unexpected interjection of a new element of damages into a case already at trial. Appellees, for their part, assert that appellant was not prejudiced by the amendment, that the evidence already presented supported a claim for punitive damages, and that if appellant was not prepared to present a punitive damages defense, it could have moved for a continuance, which it did not do.

It is well settled that a trial court’s decision to permit or refuse amendment to pleadings will not be disturbed on appeal in the absence of an abuse of discretion. Jos. Bucheck Construction Corp. v. W.E. Music, 420 So.2d 410 (Fla. 1st DCA 1982); Rooks v. Shader, 384 So.2d 681 (Fla. 5th DCA), rev. denied, 392 So.2d 1379 (Fla. 1980); City of Miami Beach v. Buckley, 363 So.2d 360 (Fla. 3d DCA 1978), cert. dism., 374 So.2d 98 (Fla.1979); Versen v. Versen, 347 So.2d 1047 (Fla. 4th DCA 1977); Dixie Farms, Inc. v. Timmons, 323 So.2d 637 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 1181 (Fla.1976). Amendments to pleadings and amendments to conform with the evidence should be freely granted by the trial court unless by doing so, the opposing party will be prejudiced in maintaining his action or defense upon the merits. Rule 1.190(a), (b), Florida Rules of Civil Procedure. This liberality in granting leave to amend diminishes as the case progresses to trial. Trustees of C.I. Mortgage Group v. City Housing Corp., 422 So.2d 323 (Fla. 4th DCA 1982) (Downey, J., dissenting); Allett v. Hill, 422 So.2d 1047 (Fla. 4th DCA 1982); Versen v. Versen, supra. Under Rule 1.190, a test of prejudice to the defendant is the primary consideration in determining whether a motion for leave to amend should be granted or denied. New River Yachting Center, Inc. v. Bacchiocchi, 407 So.2d 607 (Fla. 4th DCA 1981), rev. denied, 415 So.2d 1360 (Fla.1982); Wackenhut Protective Systems, Inc. v. Key Biscayne Commodore Club Condominium I, Inc., 350 So.2d 1150 (Fla. 3d DCA 1977); Penn Cork & Closures, Inc. v. Piggyback Shippers Ass’n of Florida, Inc., 281 So.2d 46 (Fla. 3d DCA 1973). As stated in Dixie Farms v. Timmons, supra,

[A]n amendment [of the complaint at the end of plaintiff’s evidence to conform to the evidence presented] is one that calls for the exercise of a trial court’s careful discretion in order that the defendant may not be surprised by the introduction of issues by evidence for which he has not been able to prepare.

Id. at 639.

We find that allowing the appellees to amend their complaint to add a claim for punitive damages halfway through the trial was a prejudicial error which permeated the remainder of the trial. We therefore reverse the jury’s award of damages and remand to the trial court for a new trial on damages only. Appellees should be given leave to amend their complaint, if they so desire, to include a prayer for punitive damages. Such an amendment will relate back to the date of the filing of the original complaint. Rule 1.190(c), Florida Rules of Civil Procedure.

Appellant’s second point on appeal contests the trial court’s decision to allow testimony from two men who had also been injured using appellant’s meat grinder and the admission of two additional complaints filed against appellant by two other people injured by the same model grinder. Appellant argues that the presence of the two witnesses inflamed the passions of the jurors by allowing them to see the badly injured hands of these two men. Appellant also asserts that the two complaints, on their face, did not establish sufficiently substantial similarity of circumstances, conditions, or causes to be admissible as evidence in this trial. Appellees argue that the complaints and testimony were used to impeach appellant’s assertion that it had no knowledge of defects in the product prior to the accident which gave rise to the instant lawsuit.

A trial court’s decision to admit evidence of prior accidents occurring under substantially similar conditions is again within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse. Detroit Marine Engineering, Inc. v. Maloy, 419 So.2d 687 (Fla. 1st DCA 1982); Department of Transportation v. Webb, 409 So.2d 1061 (Fla. 1st DCA 1981), rev. denied sub nom Seaboard Coast Line R. Co. v. Webb, 419 So.2d 1200 (Fla.1982); I.B.L. Corp. v. Florida Power & Light Co., 400 So.2d 1288 (Fla. 3d DCA 1981), rev. denied, 412 So.2d 466 (Fla.1982); Seaboard Coast Line Railroad Co. v. Friddle, 290 So.2d 85 (Fla. 4th DCA), rev’d, 306 So.2d 97 (Fla.1974) (adopting dissenting opinion). As a general rule, evidence of the occurrence or non-occurrence of a prior accident is admissible where it pertains to the use of the same type of appliance or equipment under substantially similar conditions. Such evidence is admissible, if the accident is not too remote in time, for the purpose of showing the dangerous character of the instrument and defendant’s knowledge thereof. Perret v. Seaboard Coast Line Railroad Co., 299 So.2d 590 (Fla.1974); Bucyrus-Erie Co. v. Hessey, 421 So.2d 672 (Fla. 3d DCA 1982); Corbett v. Seaboard Coast Line Railroad Co., 375 So.2d 34 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1202 (Fla.1980); Warn Industries v. Geist, 343 So.2d 44 (Fla. 3d DCA), cert. denied, 353 So.2d 680 (Fla. 1977). In Seaboard Coast Line Railroad v. Friddle, supra, Judge Mager, in his dissenting opinion, stated that “evidence of prior and subsequent accidents is admissible .. . (3) where the offer of evidence is to prove not negligence but notice of the dangerous character of the condition.” Id. at 89, aff’d, 306 So.2d 97 (Fla.1974). See also Reinhart v. Seaboard Coast Line Railroad Co., 422 So.2d 41 (Fla. 2d DCA 1982).

In the instant case appellant stated that it had no knowledge of the defective condition of the meat grinder prior to appellant’s accident. The trial court properly admitted evidence showing this to be incorrect. The trial court instructed the jury, with respect to the two complaints admitted into evidence, that it was to consider the complaints for the purpose of deciding the issue of notice only. Additionally, the prior accidents, as described by the complaints and the witnesses, were substantially identical to the accident which befell the appel-lee. We find that the trial court was eminently correct in allowing the admission of the complaints and the testimony of the witnesses into evidence. We therefore affirm.

Affirmed in part, reversed in part, remanded for a new trial on the issue of damages only.


source: Caselaw Access Project

author: JORGENSON, Judge.

license: Public Domain

text:
    Linda BERWICK, Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE CO., Appellee.
    No. 82-109.
    District Court of Appeal of Florida, Third District.
    July 5, 1983.
    Rehearing Denied Sept. 13, 1983.

      Preddy, Kutner & Hardy and Charles W. Rice, Miami, for appellant.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy & Graham and Richard A. Sherman, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

Berwick appeals from an adverse summary judgment. In light of the following, we reverse and remand with directions to enter summary judgment in favor of Berwick.

Prudential’s agent Kavanaugh told Ber-wick that Prudential would insure her jewelry against theft if she would have it appraised by Balogh. Kavanaugh stated that the coverage would be scheduled on Ber-wick’s homeowner policy immediately upon his receipt of the appraisal from Balogh and that Berwick would be billed for the initial premium thereafter. Accepting Prudential’s terms, Berwick submitted her jewelry to Balogh. Balogh’s employee Liste subsequently signed a written appraisal. On its final page this appraisal bore the words “Copy to” followed by Prudential’s name and address and a note of attention to Kavanaugh. When Berwick picked up her jewelry from Balogh, Liste told her that the appraisal had been mailed to Kavanaugh. It was the standard procedure at Balogh for an appraisal to be mailed the day it was signed and for a copy to be retained in Balogh’s files. Generally six to eight appraisals were mailed daily. Balogh’s files contained only the copy of Berwick’s appraisal and the original was never returned to Balogh by the post office as undeliverable. During the period when the appraisal was made Kavanaugh was away on a two-week vacation. Kavanaugh had no secretary and his incoming mail was placed unopened into a pigeonhole slot, one of forty such slots in the office in which he worked. As the slot filled, the mail was stuffed into large manila envelopes which were placed into a box which was on Kavanaugh’s desk awaiting his return. Shortly thereafter, Berwick’s jewelry was stolen. She contacted Kavanaugh who informed her that the appraisal had never been received from Bal-ogh and that, therefore, Prudential would not cover the loss. Berwick brought suit for breach of contract.

It is presumed that mail properly addressed, stamped and mailed was received by the addressee. Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla.1973); Milros-Sans Souci, Inc. v. Dade County, 296 So.2d 545 (Fla. 3d DCA 1974), cert. denied mem., 310 So.2d 744 (Fla.1975). The requirement of showing proper mailing is satisfied by proof of general office practices. Brown; Milros-Sans Souci, Inc.; see C. Ehrhardt, Florida Evidence § 406.1 (1977).

Unless otherwise provided by statute, a presumption established primarily to facilitate the determination of an action, as here, rather than to implement public policy is a rebuttable “presumption affecting the burden of producing evidence,” see § 90.-303, Fla.Stat. (1981), a “bursting bubble” presumption, see C. Ehrhardt, supra, at §§ 302.1, 303.1. Such a presumption requires the trier of fact to assume the existence of the presumed fact unless credible evidence sufficient to sustain a finding of the non-existence of the presumed fact is introduced, in which event the bubble bursts and the existence of the fact is determined without regard to the presumption. See § 90.302(1), Fla.Stat. (1981); C. Ehrhardt, supra, at § 302.1; see generally Ladd, Presumptions in Civil Actions, 1977 Ariz.St.LJ. 275 (1977).

Through discovery, Berwick introduced evidence that the appraisal was mailed by Balogh to Prudential’s agent Ka-vanaugh, thereby giving rise to the presumption that Kavanaugh received the appraisal. Prudential failed to burst the bubble of this presumption by failing to introduce contrary evidence during the summary judgment proceedings that the appraisal was not received by Kavanaugh. The presumption, therefore, remains.

Reversed and remanded with directions!


author: PER CURIAM.

text:
    GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., etc., Appellant, v. M.C. LATSON, Homer James Williams, Appellees. Homer James WILLIAMS, Appellant, v. M.C. LATSON and General Accident Fire & Life Assurance Corporation, Ltd., etc., Appellees.
    Nos. 82-741, 82-758 and 82-931.
    District Court of Appeal of Florida, Fourth District.
    July 6, 1983.
    Rehearing Denied Aug. 29, 1983.
    Marjorie Gadarian Graham, of Jones & Foster, P.A., West Palm Beach, for General Acc. Fire and Life Assur. Corp., Ltd.
    Michael J. Kennedy of Peterson & Fogarty, P.A., West Palm Beach, for Homer James Williams.
    Schuler & Wilkerson, P.A., and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for Latson.
    Lawrence M. Kopelman, Fort Lauderdale, for Okeechobee Ins. Agency, Inc.
   PER CURIAM.

This case arose out of an automobile accident in which Homer James Williams rear-ended M.C. Latson. Latson sued Williams, General Accident Fire and Life Assurance Corporation, Ltd., and Okeechobee Insurance Agency. General Accident and Okeechobee filed crossclaims against each other for indemnity. A jury trial resulted in a $360,000 judgment for Latson against Williams and General Accident, and a judgment for Okeechobee on General Accident’s crossclaim. The verdict against General Accident was reduced to $10,000, the amount of its policy covering Williams. Okeechobee’s crossclaim was ultimately withdrawn from the jury.

In prosecuting this appeal General Accident suggests two points for reversal; one, that the damages are excessive indicating the verdict is the result of passion or corruption, and two, that the court erred in instructing the jury on the issues involved in the indemnity claim.

We concede the award of damages is generous. However, considering the various elements of damages proven, the amount of the award does not appear to be an abuse of discretion by the jury. Bould v. Touchette, 349 So.2d 1181 (Fla.1977).

With regard to the jury instruction, without approving it in any way, we hold that any impropriety involved therein is harmless because General Accident had no cause of action for indemnity against Okeechobee under the circumstances of this case. Had Okeechobee moved for a directed verdict on that ground, the court would have been obligated to grant it.

The facts are generally undisputed. On Friday, December 21, 1979, Williams applied to Okeechobee Insurance Agency for automobile liability insurance coverage. Because of his driving record the insurance was to be written through the Florida Joint Underwriting Association. General Accident had been assigned as Okeechobee’s serving center.

Williams signed a Florida Joint Underwriting Association application supplied by Okeechobee, and paid $53 of the $106 down-payment, the balance thereof to be paid by January 11, 1980. Williams also signed a premium finance agreement for the balance of the premium. With that, Okeechobee advised Williams that he was covered. Later that day Williams drove his car into the rear of Látson’s car.

Okeechobee sent the completed application and payment to General Accident on Monday, December 24, 1979. Somehow the effective date of the coverage shown on the application was December 24, 1979, although all other papers sent to the Company bore the date they were written, December 21,1979. Okeechobee received notice of Williams’ accident and sent it on to General Accident. The notice reflected that Williams’ coverage was effective December 21, 1979. General Accident denied coverage and this litigation ensued.

Under Florida Joint Underwriting Association’s regulations, Okeechobee was required to bind the coverage before sending in the application. The evidence is clear that is exactly what was done. Williams signed all the papers, paid part of the down payment, and coverage was in effect. The application forwarded to General Accident stated December 24, 1979, as the effective date. The correct date the application should have reflected was December 21, 1979. In that case, General Accident would have had absolutely no basis upon which to deny coverage. The misprision concerning the application did not mislead General Accident into accepting coverage. In fact, General Accident was not prejudiced in any way as a result thereof. Its agent, Okeechobee, was authorized to write the coverage effective December 21, 1979, and it did so. Accordingly, we hold General Accident had no indemnity claim against its agent Okeechobee and was not entitled to a jury verdict on its claim in any event.

In view of the foregoing the judgment appealed from is affirmed.

DOWNEY and LETTS, JJ., and LEE, J. CAIL, Associate Judge, concur.

BY ORDER OF THE COURT:

ORDERED, appellant’s July 21, 1983 Motion for Rehearing from Order Awarding Attorney Fees is granted, and this Court’s Order of July 6, 1983 is hereby withdrawn, and further,

ORDERED that appellant’s July 21,1983 Motion for Rehearing is hereby denied.


text:
    Isaac BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 82-952.
    District Court of Appeal of Florida, Fourth District.
    July 6, 1983.
    Clarification and/or Certification Denied Sept. 14, 1983.
    Richard L. Jorandby, Public Defender, Gary Caldwell, Asst. Public Defender, and Barbara White, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Debra Mann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction but agree that the sentence, which was predicated upon classification of the appellant as a youthful offender, was excessive. The state concedes this sentencing error on appeal. Specifically, the youthful offender scheme provides for a maximum commitment of six (6) years, section 958.05(2), Florida Statutes (1979), and that the term have no more than a one year minimum mandatory provision, section 958.05(3). The sentence imposed herein exceeds these limits.

Accordingly, we affirm the judgment but vacate the sentence and remand for a new sentence in accord with this opinion.

ANSTEAD, C.J., BERANEK, J., and CO-CALIS, PATRICIA W., Associate Judge, concur.


text:
    Joseph N. MORROW, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 83-1467.
    District Court of Appeal of Florida, Second District.
    July 11, 1983.
    Rehearing Denied Aug. 19, 1983.
    Davis G. Anderson, Jr., and Norman S. Cannella, Tampa, for petitioner.
   PER CURIAM.

In view of the state’s affidavits filed below in this case and in the absence of the state’s concessions as made in Endress v. Coe, 433 So.2d 1280 (Fla. 2d DCA 1983), we cannot say that the result reached by the circuit judge herein conflicts with Endress, supra, or otherwise departs from the essential requirements of law. Therefore, this petition for writ of certiorari is DENIED.

BOARDMAN, A.C.J., and GRIMES and SCHOONOVER, JJ., concur.


author: FERGUSON, Judge. BASKIN, Judge,

text:
    Thomas STUFFLEBEAN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2250.
    District Court of Appeal of Florida, Third District.
    July 12, 1983.
    Rehearing Denied Sept. 6, 1983.
    Bennett H. Brummer, Public Defender, and Stuart Gitlitz, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant presents two issues by this appeal. The first issue is whether a question asked by the prosecutor during voir dire examination constituted an improper comment on the defendant’s right to remain silent. On this point no reversible error is shown. Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980).

The second question — whether violence or intimidation must precede or be contemporaneous with a taking of property in order for there to be a robbery — merits discussion because there appears to be no Florida case which generally defines contemporaneous violence.

At a jury trial the state’s evidence of the pertinent facts consisted of the following. The victim, John Campbell, was painting in Bayfront Park with a cassette radio beside him. The appellant and a companion took the radio and fled with Campbell in pursuit. After a chase of one to two minutes Campbell caught up with the two. Appellant produced a knife and Campbell backed away. There followed a “discussion” during which Campbell demanded the return of the radio, which demand was refused by appellant. Appellant and his companion walked away. Campbell was frustrated in his attempt to continue the pursuit by automobile.

At the conclusion of the state’s case, appellant moved for a judgment of acquittal on the ground that “the state had failed to prove the crime of robbery in that they had failed to prove that the taking in the instant case was accomplished through the use of force.”

Appellant urges that State v. Douglas, 337 So.2d 407 (Fla. 1st DCA 1976), cert. denied, 348 So.2d 946 (Fla.1977), relied upon by the state, actually supports his position.

In Douglas, the manager of a food market intercepted the defendants, one of whom he had seen drop merchandise into a shoulder bag as they attempted to exit the store. At the manager’s request the defendants agreed to walk to the rear of the store with him. As they proceeded to the rear of the store the defendants suddenly assaulted the manager then ran out of the store with the goods. The court made a point of the fact that the taking of the meat would not have been complete until the defendants got out of the store. The Douglas court phrased the question before it as “whether a person who finds it necessary to resort to violence in order to escape with the property of another is chargeable with robbery.” 337 So.2d at 408. The question was answered affirmatively, but the decision limited its application to the facts presented, distinguishing the case from a situation where force is used to prevent pursuit after the taking — precisely the situation presented by this case.

We agree with the issue as framed and decided by the Douglas court but see no reason why the decision should be limited to the peculiar facts of that case. Whether the offense is a robbery rather than a larceny should not turn on the fortuitous circumstance that, owing in part to the victim’s quick reaction, the taker is required to use force in order to make good his escape with the property before getting outside the building where the property is located (which might also suggest, unreasonably, that the offense could not have been committed in an outdoor market).

The state’s position, that a robbery occurred because an assault was committed by defendant to prevent the victim’s further pursuit after the taking, is clearly supported by Section 812.13(3), Florida Statutes (1981) which provides that: “[a]n 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.” [e.s.]. Section 812.13(3) changes the common law rule that in order for there to be a robbery, violence or intimidation must precede or be contemporaneous with the taking of property, and may not be used only in an effort to escape, Colbey v. State, 46 Fla. 112, 35 So. 189 (1903). Pursuant to the new statute, force or threat of force is considered to be contemporaneous with the taking if that force or threat of force is used to overcome a victim’s resistance to an attempted asportation.

Our view of this case is supported by-considerable authority. See People v. Anderson, 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366 (1966) (if one who has stolen property from the person of another uses force or fear in removing the property from the owner’s immediate presence, the crime of robbery has been committed); People v. Kennedy, 10 Ill.App.3d 519, 294 N.E.2d 788 (App.Ct.1973) (while the taking may be without force the offense is robbery if the departure with the property is accomplished by use of force); People v. Sanders, 28 Mich.App. 274, 184 N.W.2d 269 (Ct.App. 1970) (woman who saw defendant run from her house with her purse and bag of money called for help; her grandson, who pursued defendant, gave up chase when defendant fired a gun); Hermann v. State, 239 Miss. 523, 123 So.2d 846 (1960) (defendants asked service station to fill up gas tank, then displayed a rifle in a threatening manner and drove away without paying); State v. Bell, 194 Neb. 554, 233 N.W.2d 920 (1975) (defendant took cash register from service station while attendant’s back was turned, threw it into automobile and attempted to drive off; pursuing attendant stuck his hand through automobile window and was struck and pushed from moving vehicle). Three other states, Oregon, Maine and New York, have enacted statutes similar to the Florida statute which define as an act of robbery, the use of force to unlawfully retain property after a taking.

We hold that where an offender gains possession of property of another without force and with intent to deprive the true owner of its use, but the victim gives instant and uninterrupted protest or pursuit in an effort to thwart a taking, and the offender then assaults the victim in order to complete a taking of the property and make good an escape, the offense is robbery. This construction of Section 812.-13, supra, we think, is precisely what the legislature intended.

Affirmed.

BASKIN, Judge,

dissenting in part.

I disagree with the majority holding that the theft of property constitutes robbery even though the perpetrator used no force or intimidation to gain possession. The majority is disdainful of and declines to follow existing Florida law requiring that precedent or contemporaneous force or fear be established to prove the crime of robbery. See e.g., McCloud v. State, 335 So.2d 257 (Fla.1976); Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922); E.Y. v. State, 390 So.2d 776 (Fla. 3d DCA 1980) (Baskin, J., dissenting); Mims v. State, 342 So.2d 116 (Fla. 3d DCA 1977). We are, nevertheless, required to apply Florida law. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

The principle enunciated in Colbey v. State , 46 Fla. 112, 35 So. 189 (1903) controls. In Colbey, the defendant, caught with his hand in his victim’s pocket, struggled in an effort to escape. Overturning Colbey’s attempted robbery conviction, the court stated:

If the defendant struggled or clinched with Bousman in an effort to overpower him for the purpose of enabling him to secure the money in the pocket, there would be such force as the statute contemplates, but the force used merely in an effort to escape from the grasp of [the victim] or to avoid arrest would not be such force as is contemplated by the statute.

46 Fla. at 114, 35 So. at 190. Similarly, in the case under consideration, defendant Stufflebean gained possession of the radio without using any “force, violence, assault or putting in fear.”

The Colbey court noted:

Where one stealthily filches loose property from the pocket of another and no more force is used than such as may be necessary to remove the property from the pocket, it is not robbery under the statute, but larceny.

46 Fla. at 114, 35 So. at 190. Accordingly, taking a radio with no more force than is necessary to remove it from the bench constitutes larceny, not robbery.

Florida applies the generally accepted rule on the use of force to effect an escape.

The violence or intimidation must precede or be concomitant or contemporaneous with the taking. Hence, although the cases are not without conflict, the general rule does not permit a charge of robbery to be sustained merely by a showing of retention of property, or an attempt to escape, by force or putting in fear. The above doctrine has found frequent application where force or intimidation has been exercised after the property came into the defendant’s hands through stealth ....

67 Am.Jur.2d, Robbery, § 26 (1973). Thus, “subsequent force cannot relate back to the act of taking so as to be considered force accompanying the act, ... violence or intimidation subsequent to a taking by other means will not render the act robbery.” 77 C.J.S., Robbery, § 11 (1952).

The majority’s interpretation of section 812.113(3) is misguided. The definition of robbery has not been changed by the legislature. An examination of the title of a bill offers guidance in the determination of legislative intent. Parker v. State, 406 So.2d 1089 (Fla.1981). The title of the robbery statute, Chapter 74-383, Laws of Florida, describes the law as “An Act relating to the criminal law ... defining the crimes of and providing the penalties for robbery .... ” The common law definition of robbery, set forth in subsection (1) of section 812.13, has remained unchanged since the days of Blackstone. Subsection (2) provides the penalties for robbery. The title of the act establishes that these provisions are separate. Only subsections 2 and 3 contain the phrase “in the course of committing the robbery.” Subsection 3 is clearly directed to the sentencing portion of the statute and not to the subsection which defines the crime of robbery; thus subsection 3 is not part of the definition. I therefore disagree with the majority that force used in an effort to flee from a larceny converts a larceny followed by an assault into robbery.

The statutes cited by the majority in advocating a new rule of law were enacted by the legislatures in other states; the Florida legislature, however, has not undertaken a similar course. The fact that other states have enlarged their robbery statutes to include those situations where force is used after the taking reinforces the position that Florida’s more limited statute does not authorize Stufflebean’s conviction for robbery. The legislature is empowered to define crimes; the court plays a different role. Unless an act clearly comes within the terms of the statute, it cannot be punished under the statute. Bradley v. State, 79 Fla. 651, 84 So. 677 (1920). Because I believe it is inappropriate for this court to legislate and because the courts of Florida have already reached a contrary conclusion, I must dissent. In my view the offense constituted a theft under Florida law. I would therefore reduce the conviction to theft.

I concur in the remainder of the opinion.

      .The applicable statute is Section 812.13, Florida Statutes (1981), which provides:
      (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)(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.
      ******
      (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.

      . Section 812.13(3), Florida Statutes (1981) was enacted in 1974 as part of Chapter 74-383, Laws of Florida, and took effect on July 1, 1975.

      . In Andre v. State, 431 So.2d 1042 (Fla. 5th DCA 1983), the appellant, without warning or threat, snatched money from the hands of a victim while in the process of discussing a drug deal. When the victim protested and pursued appellant to recover the money, the appellant and his compatriots beat and knocked down the victim and left with the money. The court affirmed a robbery conviction on two grounds: (1) the act of snatching the money from the hand of the victim was sufficient force to support a robbery conviction, and (2) “the statutory definition of robbery ... also includes the use of force ‘in flight after ... the commission.’ ” 431 So.2d at 1043.
      While we agree with the result in Andre, we do not agree that the first rationale alone is sufficient. McCloud v. State, 335 So.2d 257 (Fla. 1976) offers no support for the proposition, stated in Andre v. State, that “the act of ‘snatching’ the money from another’s hands is force and that force will support a robbery conviction.” 431 So.2d at 1043. In McCloud, the defendant employed force to wrestle a purse from the possession of a resisting victim. A purse-snatching is not robbery if no more force or violence is used than is necessary to physically remove the property from a person who does not resist. Mims v. State, 342 So.2d 116 (Fla. 3d DCA 1977). The robbery conviction in Andre is sustainable on the second ground alone, i.e., that the victim’s immediate resistance to the taking of his property, which taking was not complete on the mere snatching, was overcome by defendant’s violent force.

      .In State v. Rios, 24 Or.App. 393, 545 P.2d 609 (Ct.App. 1976), the defendant took several bottles of beverages from a cooler in a grocery store, went out the door without paying, then threw two bottles at the pursuing store operator. The court held that the use of force to retain property immediately after it had been taken constituted robbery within the meaning of a statute defining robbery to include the use of force at such time.

      . In State v. Young, 390 A.2d 1056 (Me. 1978), the Supreme Judicial Court of Maine held, pursuant to a statute defining the use of force in retaining property as an element of robbery, that where there was evidence that a store owner seized the defendant as he was leaving the store carrying unpaid beer, and defendant turned and struck the owner, the jury could reasonably have found that defendant struck owner with intent to prevent him from recovering the stolen beer.

      . In People v. Santiago, 62 A.D.2d 572, 405 N.Y.S.2d 752 (App.Div.1978), the court held that by state statute it is still robbery where physical force is used immediately after the taking for the purpose of retaining the stolen property.

       Cited as Colby v. State in the Southern Reported


author: PER CURIAM. COWART, Judge,

text:
    Isaiah Eugene JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-755.
    District Court of Appeal of Florida, Fifth District.
    July 14, 1983.
    Rehearing Denied Aug. 17, 1983.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

With pistol in hand, appellant circled a vehicle, containing two passengers in the rear seat area, while trying to get a clear shot at an intended victim, Ricky Joiner, who was trying to keep the vehicle between appellant and himself. Bullets aimed by appellant at his victim hit the top of the vehicle trunk, the bottom of the vehicle trunk and a panel near the rear window. One bullet was also fired through the open window on the driver’s side and passed through the vehicle and broke the window at the front passenger’s side. Appellant was charged, tried and convicted of an aggravated assault on Ricky Joiner and also a violation of section 790.19, Florida Statutes (1981), which makes it a felony crime to wantonly or maliciously shoot any firearm at, within or in any vehicle which is being used or occupied by any person.

Citing Golden v. State, 120 So.2d 651 (Fla. 1st DCA 1960), appellant claims the trial judge erred in denying his motion for a judgment of acquittal made during trial because the evidence was clear that he was shooting at his victim and only incidentally shot at and into the vehicle. The relevant facts in Golden were that Golden and one Pearce Jernigan had a bitter and heated argument while Jernigan was standing in the yard of his home. After Golden shot two deputies, Jernigan ran into his house with Golden in hot pursuit. Golden fired his pistol at Jernigan several times both before and after entering the house. Bullets struck both the exterior and interior of the house and one bullet struck Jernigan during his flight for safety. Golden was charged, tried and convicted of assault with intent to kill and a violation of section 790.19, Florida Statutes (1957 amended Ch. 59-458 Laws of Florida 1958). The appellate court affirmed the assault charge but reversed the conviction of wantonly or maliciously shooting at or into Jernigan’s house.

The basis for appellant’s motion at trial and argument on appeal is the following language from Golden:

The gravamen of the offense is the wanton or malicious shooting at or into a house. Although the evidence contained in the record clearly reveals that appellant was maliciously and wantonly shooting his pistol during the controversy, his malicious and wanton attitude was directed only toward [the victim]. There is no evidence which either directly or by inference could be said to establish the fact that appellant was wantonly or maliciously shooting at or into the house per se. ... We are forced to conclude that the statute was never intended to apply to the factual situation presented by the evidence in this case, (emphasis added) 120 So.2d at 653.

Before the trial court and on appeal appellant argues that Golden establishes a “per se test” that requires a specific intent to shoot at or into the object on account of (per) the object itself (se) and that the malicious and wanton intention be directed specifically or only toward the object, and that Golden holds that the statute is not violated where the shooting at or into the object is merely incidental to an intention of firing at a specific intended human target. This is the way Golden is commonly read and understood. There is absolutely no question but that in this case the defendant’s violence and fury were directed only at Ricky Joiner and not at the vehicle.

“Wantonly” means an act done intentionally and with design; with reckless disregard for the rights of others; without excuse and heedless of consequences; an act done under circumstances evincing a lawless, destructive spirit. “Maliciously” describes an act done with a condition of mind that shows a heart regardless of social duty and bent on mischief; evidencing a design to do an intentional wrongful act toward another, or toward the public, without any legal justification or excuse and with the knowledge that injury or damage will, or may likely be caused to another person or to the property of another person. In fact, “malice” in its common acceptation, means ill will towards some person. The disjunctive adverbs, “wantonly or maliciously,” refer to that mental condition which would naturally and in common experience be expected to be the attitude of one who, with reckless disregard of the potential deadly consequences, intentionally and for no good and lawful purpose discharges a firearm at, within or into an object known to contain, or to often contain, human beings, as distinguished from the lack of intent of one who accidently discharges a firearm or the mind and attitude of one who, without intending any wrong or harm, innocently shoots a firearm under apparently safe conditions. Inanimate objects, such as houses and cars, seldom so offend a person as to become the subject of a malicious and wanton attitude and of a wrath such as would cause one to shoot the object per se. Such rare occurrences could hardly have been what the statute was intended to proscribe. Yet that is what Golden holds. Here, as in Golden, the shooter’s malice as well as his bullets, were directed toward a specific victim and the object in question, the house in Golden and the vehicle here, was shot only because Jernigan, Golden’s intended victim, sought refuge in the house in Golden and Ricky Joiner, appellant’s intended victim, sought protection behind the vehicle in this case.

During the trial of cases charging a violation of this statute the Golden case is constantly argued to trial courts on motions for judgments of acquittal. The trial judge in this case declined to follow Golden and denied the motion for a judgment of acquittal; however, normally, when trial judges follow Golden and grant such motions the State cannot appeal and question the statutory construction of Golden. This case presents the question of the proper construction of this statute to this court for the first time and the material facts in this case are legally indistinguishable from those in Golden and this court without opinion sustains a ruling that directly conflicts with that in Golden. The statute either does, or does not, require the shooter’s wicked or mischievous mental attitude or motive, as well as his bullets, be directed toward the object described in the statute. Golden clearly states and holds it does. I concur in sustaining the trial court’s ruling because I think the Golden construction of the statute is erroneous. The words “wantonly or maliciously” relate to a mental element and describe the condition or attitude of mind which must accompany the prohibited act but the statute does not require that the defendant’s malevolent attitude be that of a specific intent and that intent be in the form of a specific intention to harm the object involved.

The trial bench and bar need, and are entitled, to know whether or not this court agrees with the rationale and holding in Golden. This is exactly the type of case in which this court should (1) meet its duty to render a reasoned opinion properly construing the statute, (2) in the spirit of Article V, section 3(b)(3), Constitution of the State of Florida, forthrightly state a disagreement with the statutory construction and holding in Golden, and (3) expressly acknowledge that this court’s holding in this case directly conflicts with Golden so as to permit a reconciling review by the supreme court under Florida Rule of Appellate Procedure 9.030(a)(2)(A)(iv).

      . It is interesting to note the special concurring opinion in Golden emphasized that Golden’s firing of the pistol into the dwelling was “clearly part and parcel” of his attempt to shoot Jernigan which resulted in the conviction of assault with intent to kill and felt that the charge in the second count was “swallowed up by the conviction on the first count involving the higher crime.” Although not identified as such this was an argument that under the then extant “single transaction rule” it made no difference whether the charge of maliciously shooting at or into the dwelling was upheld or not because the defendant could be sentenced only for the higher crime of all crimes committed during a single criminal transaction. For further explanation see Baker v. State, 425 So.2d 36 at 50.

      . The Latin word “se” is a reflexive pronoun usually referring to the person or thing (house) which is the subject of the clause containing the word “se.” When the reference is to an object (house) the form is “itself.” The Latin word “per” is a preposition in the accusative case used to show the relation of a noun or pronoun (the object of the preposition) to some other word. In the sentence in question the word “per” shows the relationship of the noun “house” to its reflexive pronoun “itself.” In this sense “per” means “because of’ or “on account of.” Therefore, in Golden the phrase “the house per se” means the house by itself; the house taken alone; the house in isolation; the house unconnected with other matters; the house in and of itself; or the house because of, or on account of, the house itself. See Black’s Law Dictionary 1028 (5th ed. 1979).

      . All facts in the case are well consistent with the following testimony of the defendant:
      Q Then Ricky goes and gets behind his car?
      A He went on the side.
      Q And then you shot three bullets into the rear end of the car?
      A Yes, I had to shoot at the car, I shot the car. Evidently if there were three bullets on the car I am quite sure I did it. But everyone of them was going for him, no occupants, I was strictly after Ricky Joiner.
      Q You didn’t care whether you hit that car or not, did you?
      A I was shooting at him but it wasn’t the car that I was concerned with because the car wasn’t Ricky Joiner. The car could not hurt me because it was parked.
      Q But you could hurt the car, couldn’t you?
      A I wasn’t thinking in terms of hurting the car, I was basically after Ricky Joiner.
      [R 117-118],


text:
    Billy J. STRICKLAND, Appellant, v. Esther D. WEDEKIND, Appellee.
    No. 82-1170.
    District Court of Appeal of Florida, Fifth District.
    July 14, 1983.
    Rehearing Denied Sept. 14, 1983.

      Margaret A. Wharton of the Law Firm of Roger L. Berry, Sanford, for appellant.
    Ned N. Julian, Jr. of Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A., Sanford, for appellee.
   PER CURIAM.

We reverse the order modifying sole custody from the father to shared parental responsibility under section 61.13(2)(b), Florida Statutes (1982 Supp.), because the record shows no substantial material change in circumstances since the entry of the original custody judgment. See Alonso v. Alonso, 432 So.2d 174 (Fla. 3d DCA 1983); Frey v. Wagner, 433 So.2d 60 (Fla. 3d DCA 1983). See also Kapner, March 1983, Fla.Bar Journal 163 “Shared Parental Responsibility: Questions and Answers.”

REVERSED.

DAUKSCH and COWART, JJ., and FOX-MAN, Associate Judge, concur.


author: SHARP, Judge.

text:
    In re The Matter of the ADOPTION, OF H.Y.T. Alva RAMEY and Wanda Ramey, his wife, Appellants, v. Peter B. THOMAS, Alice M. Thomas, his wife and Daniel S. Wallace, as Attorney Ad Litem for H.Y.T., a minor, Appellees.
    Nos. 83-75, 83-262.
    District Court of Appeal of Florida, Fifth District.
    July 14, 1983.
    Rehearing Denied (Appellee) July 26,1983.
    Rehearing Denied (Appellant) Aug. 18,1983.
    F. Daun Fowler, Daytona Beach, for appellants.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellees, Thomas.

      Daniel S. Wallace, Daytona Beach, as attorney Ad-Litem for H.Y.T., a minor.
   SHARP, Judge.

Alva and Wanda Ramey appeal from a non-final order of the trial court that authorizes and directs the release of Wanda Ramey’s medical records concerning her care and treatment by Dr. Maximo Handel (a psychiatrist) at the Community Hospital of Daytona Beach, and permits the taking of the doctor’s deposition relating to his diagnosis, treatment, and prognosis pertaining to Wanda, his patient. Appellants sought a protective order on the grounds that the material and testimony requested was privileged. We elect to treat this appeal as a petition for writ of certiorari, and we grant the relief requested.

It appears to us that the discovery sought by appellees is patently inappropriate under applicable case law, see Kristensen v. Kristensen, 406 So.2d 1210 (Fla. 5th DCA 1981); Mohammad v. Mohammad, 358 So.2d 610 (Fla. 1st DCA 1978); Roper v. Roper, 336 So.2d 654 (Fla. 4th DCA 1976), and it is barred by section 90.503, Florida Statutes (1981). That statute provides:

A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of his mental or emotional condition ... between himself and his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

§ 90.503(2), Fla.Stat. (1981). The privilege does not exist under the statute for communications relevant to issues to compel hospitalization and for those made in the course of a court-ordered examination of a patient or for

communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense ....

Appellees assert because Wanda Ramey petitioned to adopt her granddaughter, and, in connection therewith claimed to be a suitable parent, she is relying upon her mental condition. Analogous to dissolution proceedings, the mental and physical health of a party seeking to adopt a child are relevant considerations. But that does not make the mental health of a person seeking to adopt an element of her claim or defense. See Kristensen; Mohammad; Roper.

We further hold that Wanda did not waive her privilege in this cause because a social worker was appointed by the court to conduct a study concerning the child and the competing sets of grandparents seeking her adoption. The study was ordered upon motion of the appellees. The motion stated it did not seek to abridge or waive any privilege: “[s]uch discovery by Ms. Get-temy, precludes necessity for opposing counsel to violate counter-petitioner’s right to privacy in regard to her medical records.” Further, the report filed disclosed no confidential or privileged matters.

Accordingly, we GRANT the writ for cer-tiorari, and QUASH the lower court’s denial of the appellant’s motions for protective orders. We direct that they be granted.

WRIT GRANTED.

DAUSKCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Malt v. Simmons, 405 So.2d 1018 (Fla. 4th DCA 1980); Colonial Penn Ins. Co. v. Blair, 380 So.2d 1305 (Fla. 5th DCA 1980); Fla.R.App.P. 9.030(b)(2)(A); Fla.R.App.P. 9.040(c).

      . The other orders sought to be reviewed in this appeal (assessment of accountant’s fees and denial of placement of Hope in the Ra-mey’s home pending the proposed adoption) are non-final and not appealable. Nor do we think they are appropriate for certiorari review. Accordingly, we do not consider them because we do not have jurisdiction to do so.

      . § 90.503(4)(a), Fla.Stat. (1981).

      . § 90.503(4)(b), Fla.Stat. (1981).

      . § 90.503(4)(c), Fla.Stat. (1981).


author: JOANOS, Judge.

text:
    Frank J. MASIARCZYK, Jr., Appellant, v. Robert L. BURNS, Appellee.
    No. AP-321.
    District Court of Appeal of Florida, First District.
    July 15, 1983.
    Rehearing Denied Sept. 1, 1983.
    Joseph W. Jacobs, Tallahassee, and William VanDercreek, Dallas, Tex., for appellant.
    William L. Lee, Jr., and Ray P. Pope, of Shell, Fleming, Davis & Menge, Pensacola, for appellee.
   JOANOS, Judge.

We affirm on the basis that the record contains sufficient evidence in support of the trial court’s decision to pierce the corporate veil on the theory of complete personalization. See Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973).

AFFIRMED.

LARRY G. SMITH and NIMMONS, JJ., concur.


text:
    Marcello RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1734.
    District Court of Appeal of Florida, Third District.
    July 19, 1983.
    Rehearing Denied Sept. 13, 1983.
    Gomez & Fente, P.A. and Julio Gomez, Miami, for appellant.
    Jim Smith, Atty. Gen. and Richard Doran and Scott Silver, Asst. Attys. Gen., for ap-pellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See: Bryant v. State, 412 So.2d 347 (Fla.1982); Williams v. State, 346 So.2d 554 (Fla. 3d DCA 1977); Fla.R. Crim.P. 3.390(d); Compare: State v. Farrugia, 419 So.2d 1118 (Fla. 1st DCA 1982); Metzger v. State, 395 So.2d 1259 (Fla. 3d DCA 1981); Valero v. State, 393 So.2d 1197 (Fla. 3d DCA 1981); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).


text:
    Francisco J. RODRIGUEZ; Appellant/Cross-Appellee, v. Nibia RODRIGUEZ, Appellee/Cross-Appellant.
    No. 82-2559.
    District Court of Appeal of Florida, Third District.
    July 19, 1983.
    Rehearing Denied Sept. 2, 1983.

      Edward C. Vining, Jr., Miami, for appellant/cross-appellee.
    Gerald E. Rosser, Miami, for appel-lee/cross-appellant.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

This appeal by the husband is from that portion of a final judgment of dissolution of marriage relating to the award of alimony and determination of property rights as between the parties. The cross-appeal by the wife is from a denial of attorney fees and costs in the trial court.

We have carefully reviewed the record on appeal and considered the briefs and arguments of counsel, and have concluded that no error or abuse of discretion by the trial court has been demonstrated.

Affirmed.


text:
    Michael James COYLE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1441.
    District Court of Appeal of Florida, Third District.
    July 19, 1983.
    Bennett H. Brummer, Public Defender and Javits & Karp and David B. Javits, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 425 So.2d 591 (Fla. 3d DCA 1982).


text:
    Julio RODRIQUEZ and Julio Rodriquez, Jr., Appellants, v. TRUSTEES, EXECUTORS & ESTATES, INC., and Stephen H. Alex, Appellees.
    No. 82-2172.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 31, 1983.
    William S. Riker, North Palm Beach, for appellants.
    John Edgar Sherrard, Fort Pierce, for appellees.
   PER CURIAM.

Affirmed on the authority of Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979).

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.

BY ORDER OF THE COURT:

ORDERED, appellants’ July 27, 1983 Petition for Rehearing is hereby denied, and further,

ORDERED, appellee’s July 25, 1983 Motion for Rehearing as to Attorney’s Fees is granted, and this Court’s order of July 20, 1983 is hereby vacated, and the Motion for Attorney’s Fees filed by John Edgar Sher-rard, counsel for the appellee is hereby granted, and pursuant to Rule 9.400(b) Fla. R.App.P., upon remand of this cause the amount thereof shall be assessed by the trial court upon due notice and hearing, subject to review by this court under Rule 9.400(c), Fla.R.App.P.


text:
    Barbara Biddle SPAIN, Appellant, v. Frank Kyle SPAIN, Appellee.
    No. 82-1082.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Sept. 14, 1983.
    Ronald Sales of Sales & Weissman, P.A., West Palm Beach, for appellant.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd Chartered, Fort Pierce, and C. Timothy Corcoran, III, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler,, P.A., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See, Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

ANSTEAD, C.J., BERANEK, J., and CO-CALIS, PATRICIA M., Associate Judge, concur.


author: HERSEY, Judge.

text:
    Michael David RASZKA, Petitioner, v. Richard B. BURK, Honorable Judge of the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent.
    No. 83-712.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Aug. 30, 1983.

      James L. Eisenberg of Green, Eisenberg & Cohen, West Palm Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.
   HERSEY, Judge.

This petition for a writ of prohibition arises as a result of an impasse in a plea bargain negotiated by one of two defendants on a charge of trafficking in marijuana. On May 3, 1982, the trial of petitioner and his codefendant Burns commenced as the jury was selected and sworn and counsel made their opening statements. Before reconvening the following day, the state offered petitioner a plea bargain under the terms of which he would testify against the codefendant. Petitioner’s counsel informed the court “we have accepted the plea .... ” Thereupon, the trial court declared a mistrial in accord with the respective requests and consent of both the prosecutor and the codefendant’s counsel. The jury was dismissed. Subsequently, petitioner decided not to accept the plea bargain. However, petitioner now contends he cannot be tried because it would violate the fifth amendment prohibition against double jeopardy.

The fifth amendment clearly prohibits placing any person in jeopardy of life or limb twice for the same offense. Likewise the law is well settled that jeopardy attaches when the jury is impaneled and sworn in. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978); Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Rich, 589 F.2d 1025, 1028 (10th Cir.1978); United States v. Fay, 553 F.2d 1247 (10th Cir.1977); Foster v. United States, 339 F.2d 188 (10th Cir.1964).

Certainly it is clear beyond question that the Double Jeopardy Clause does not guarantee a defendant that the Government will be prepared, in all circumstances, to vindicate the social interest in law enforcement through the vehicle of a single proceeding for a given offense. Thus, for example, reprosecution for the same offense is permitted where the defendant wins a reversal on appeal of a conviction. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); see Green v. United States, 355 U.S. 184, 189, 78 S.Ct. 221, 224, 2 L.Ed.2d 199, 205 [61 A.L.R.2d 1119] (1957). The determination to allow reprosecution in these circumstances reflects the judgment that the defendant’s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decision making resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error. But it is also clear that recognition that the defendant can be reprosecuted for the same offense after successful appeal does not compel the conclusion that double jeopardy policies are confined to prevention of prosecutorial or judicial overreaching. For the crucial difference between reprosecution after appeal by the defendant and reprose-cution after a su a sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury, and, perhaps, end the dispute then and there with an acquittal. On the other hand, where the judge, acting without the defendant’s consent, aborts the proceeding, the defendant has been deprived of his “valued right to have his trial completed by a particular tribunal.” See Wade v. Hunter, 336 U.S. [684], at 689, 69 S.Ct. [834], at 837[, 93 L.Ed. 974, at 978],
If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. In the absence of such a motion, the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings. See United States v. Perez, 9 Wheat. [579], at 580 [6 L.Ed. 165, at 166], [Emphasis supplied by this court.]

United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1971).

A valid reason for declaring a non-consensual mistrial must be predicated on either of two bases:

(1) [Manifest necessity which arises because of] some misfortune which, although the fault of neither party, renders continuation of the trial impossible or unreasonably prejudicial to the substantial interest of either the judicial process itself, the defendant, the state, or both, or
(2) [defense provocation which is based] upon some unfair or wrongful tactic, action or conduct on the part of the defendant, by which a substantial interest in the state is unfairly frustrated or embarrassed.

Spaziano v. State, 429 So.2d 1344, 1346 (Fla. 2d DCA 1983), quoting State ex rel. Mitchell v. Walker, 294 So.2d 124, 127 (Fla. 2d DCA 1974).

It is clear that, had petitioner Rasz-ka accepted the plea and testified against his codefendant, the codefendant would have a right to a mistrial on grounds of manifest necessity. United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) (manifest necessity to order discharge of jury to meet the ends of public justice); Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (mistrial, properly based on trial judge’s assessment of the prejudicial impact of defense counsel’s opening statement, constitutes manifest necessity); Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949) (court-martial proceeding properly terminated because of military necessity); Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891) (where juror lied regarding acquaintance with defendant, possible juror bias necessitated grant of mistrial); United States v. Appawoo, 553 F.2d 1242 (10th Cir.1977) (upholding retrial where trial court’s grant of motions to dismiss, though designated “acquittal” was based solely on erroneous constitutional grounds interpretive of statute under which defendant was charged).

We suggest that the trial judge is entitled to rely on the statements of parties’ counsel. Thus, when informed by petitioner’s counsel that “we have accepted the plea” the judge acted properly in granting the codefendant’s motion (and prosecution’s motion) for mistrial. Defendant’s subsequent change of mind cannot retroactively nullify the reasons for which the mistrial was necessarily granted. See United States v. Bridewell, 664 F.2d 1050 (6th Cir.1981) (double jeopardy prevents retrial where at first trial defendant objected to declaration of mistrial and manifest necessity was not present despite his codefendant’s motion for a mistrial, although consenting codefendant can be retried).

We need not, however, rely on this analysis. In the instant case we find that the incongruence of representing to the court that “we have accepted the plea” and defendant’s subsequent withdrawal of that plea coupled with defendant’s contention that a subsequent trial on the merits would subject him to double jeopardy constitutes defense provocation. To permit the defendant to profit by manipulation of the rules would certainly unfairly frustrate a substantial interest of the state.

In addition, retrial after a mistrial does not invoke double jeopardy considerations where the defendant consented to the mistrial. It is true that mere silence cannot be interpreted as a waiver or consent, State v. Allen, 52 Fla. 1, 41 So. 593 (1906); State v. McNeil, 362 So.2d 93 (Fla. 1st DCA 1978); Francis v. State, 413 So.2d 1175 (Fla.1982); however, in the instant case there was more than mere silence. Here defendant’s actions and his counsel’s representations formed the basis for the codefendant’s and prosecutor’s motions for mistrial.

After the mistrial had been declared defense counsel stated on the record, in open court, and in the defendant’s presence:

MR. GELSTON: First of all, I would like to say one thing.
I never had this happen before. I was before the Court in good faith. My client had accepted the plea bargain. He cooperated with the State to some extent over the recess and again at lunch a little bit.
Judge, I don’t know, my client did not take — will not take my advice, and I don’t think that I can represent him in this matter. I feel so strongly about it, I am moving the Court orally to let me withdraw. [Emphasis added.]

A criminal defendant cannot be permitted to thwart the judicial process by taking contradictory positions under these circumstances.

In analogous circumstances, the Fourth Circuit held reprosecution was not barred where the first jury was released in conjunction with granting defense counsel’s motion for a continuance. Adkins v. Bordenkircher, 674 F.2d 279 (4th Cir.1982), cert. denied,-U.S.-,-, 103 S.Ct. 119, 173, 74 L.Ed.2d 104, 142 (1982). We note that while it is the better practice to hold the formal plea hearing prior to declaring a mistrial, under these circumstances such a procedure is not mandatory.

The petition for writ of prohibition is hereby denied.

DOWNEY and WALDEN, JJ., concur.


author: BERANEK, Judge. GARRETT, EUGENE S., Associate Judge,

text:
    Ruth E. WEIS and Joan A. Weis, Appellants/Cross Appellees, v. HOVNANIAN FLORIDA, INC., etc., et al., Appellees/Cross Appellants.
    No. 80-1125.
    District Court of Appeal of Florida, Fourth District.
    July 20, 1983.
    Rehearing Denied Sept. 12, 1983.

      Edna L. Caruso, West Palm Beach, for appellants/cross appellees.
    Ronald Sales of Ronald Sales, P.A., West Palm Beach, for appellees/cross appellants.
   BERANEK, Judge.

This case involves a prescriptive easement granted as to one of two parcels of land in question. We reverse the grant of the easement as to Parcel One. Appellants fenced two parcels of land and placed animals on the land. The animals varied over the years from chickens and rabbits to horses. The nature of the use and length of time of each kind of use also changed over a period of approximately twenty years. The trial court found on conflicting evidence that appellants had used the land for animal husbandry for over twenty years and granted a prescriptive easement for animal husbandry purposes in perpetuity. The final judgment provides as follows:

3.That the aforesaid prescriptive easement for animal husbandry and attendant uses and purposes appurtinent [sic] to the above described real property, be and the same is hereby forever quieted and confirmed in Plaintiffs, RUTH E. WEIS and JOAN A. WEIS, their heirs, successors and assigns; and that Defendant HOVNANIAN FLORIDA, INC., a Florida corporation, its successor in interest, John B. Waddell, Trustee, and all persons claiming by, through, under or against them and all persons having or claiming any right, title or interest in or to the aforesaid easement be and they are hereby permanently restrained and enjoined from claiming adverse to, obstructing, destroying, disturbing, or interfering in any manner, directly or indirectly, with said easement or Plaintiffs’, their heirs’, successors’ and/or assigns’ use, possession and occupancy and right to use, possession and occupancy of said easement; and all claims, rights, titles, interests or equities of the Defendants, and all persons claiming by, through, under or against them since the filing of this action on July 24, 1973, be and they are forever cancelled and decreed to be null and void.

The court denied an easement as to another parcel claimed by the plaintiffs. We conclude that the reason for this denial was error but harmless under our ruling herein. The plaintiffs/appellants appeal the denial of the easement on Parcel Two, and the defendant cross appeals the grant of the easement as to Parcel One.

The plaintiffs disavow any desire to acquire title to the property by adverse possession under Chapter 95, Florida Statutes (1981). Plaintiffs admit they did not plead or prove adverse possession and make no claim whatsoever under this theory. The plaintiffs’ sole position is that they acquired an exclusive prescriptive easement which should allow them to fence the property and to totally exclude the true owner from the property. We disagree. Platt v. Pietras, 382 So.2d 414 (Fla. 5th DCA 1980), is closely on point. Under the rationale of Platt, the easement here was improper because it amounts to exclusive use of the property. We conclude that plaintiffs were not entitled to a prescriptive easement for animal husbandry purposes which was so broad as to totally exclude any use by the true owner. Such rights are tantamount to title which can only be acquired through adverse possession which plaintiffs do not claim. The final judgment below as to Parcel One is thus reversed.

Are the plaintiffs entitled to some lesser easement? We are unable to answer because plaintiffs have not raised this question here or below. We cannot anticipate what questions may be presented next so we certainly cannot answer them now.

The matter is remanded for further proceedings in which the court may consider amended claims.

AFFIRMED in part, REVERSED in part and REMANDED.

DOWNEY, J., concurs.

GARRETT, EUGENE S., Associate Judge, dissents with opinion.

GARRETT, EUGENE S., Associate Judge,

dissenting:

The trial court entered judgment by which a prescriptive easement as to parcel one was found in favor of the plaintiffs. I find that that portion of the judgment is supported by both the facts and the law, and since reversible error has not been demonstrated, the same should be affirmed.

Platt, because it involves an attempt to perfect a prescriptive right over the entirety of the lots in question, is distinguishable from the case at bar which involves only a portion of the defendants’ land.

The raising of animals ordinarily necessitates fencing and supportive structures. While it is true that an easement does not involve complete dominion over the premises, limited dominion is permissible depending on the character of the easement when necessary for the utilization of the claimed use.

Further, there is no indication that the intended use cannot be exercised in common with the property rights of the owner which defeats the argument that the defendants are totally excluded from the property.

The trial court further entered judgment by which the defendants’ title to parcel two was quieted against the aforesaid claim of the plaintiffs. The trial judge ruled that no prescriptive easement was established since the plaintiffs never intended to take parcel two away from anyone.

To deny a prescriptive easement solely on the lack of intent on the part of the plaintiffs to deprive the defendants of parcel two is error since such intent is irrelevant. Seaboard Air Line Railroad v. California Chemical Company, 210 So.2d 757 (Fla. 4th DCA 1968).

The facts and law applicable to the trial court finding a prescriptive easement as to parcel one are likewise applicable to finding that a prescriptive easement was established also as to parcel two.

Accordingly, the final judgment as to parcel one should be affirmed and as to parcel two should be reversed and remanded with directions to enter judgment establishing a like prescriptive easement in favor of the plaintiffs.


author: ZEHMER, Judge.

text:
    Melanese WILSON, a minor, By and Through her parents and natural guardians, Melanese WILSON and Robert Wilson, and Melanese Wilson and Robert Wilson, individually, Appellants, v. DUVAL COUNTY SCHOOL BOARD, Victoria Dethloff, Donna B. Sutton, Johnathan Wade, a minor, and Atlanta International Insurance Co., a foreign corporation, Appellees.
    No. AO-143.
    District Court of Appeal of Florida, First District.
    July 22, 1983.
    Timothy D. Ellis, of Brown, Terrell & Hogan, P.A., Jacksonville, for appellants.
    Fred H. Kent, III and David W. Carstet-ter of Kent, Watts, Durden, Kent, Nichols & Mickler and John F. MacLennan, of Katt-man, Eshelman & MacLennan, P.A., Jacksonville, for appellees.
   ZEHMER, Judge.

This appeal questions the propriety of dismissing with prejudice an amended complaint against a teacher and a principal employed in the Duval County School System and against the teacher’s liability insurer. The amended complaint charged these defendants with negligent conduct in the course and scope of their employment that resulted in injuries to a student in their charge.

Two points are raised by appellants. The first is whether Section 768.28(9)(a), Florida Statutes (1980 Supp.), which grants immunity to employees of the state and its subdivisions, is unconstitutional. The second point is whether the teacher has waived such statutory immunity by purchasing and maintaining liability insurance covering the negligent acts alleged. We affirm.

The complaint alleged the following essential facts: Melanese Wilson, seven years of age, was a student in the class taught by Victoria Dethloff, an employee of the Duval County School Board; Donna Sutton was principal of the school; and Johnathan Wade was a fellow student. On October 14, 1980, while Melanese was standing at the teacher’s desk, Johnathan picked up a pair of the teacher’s sharp-pointed scissors and struck Melanese in the eye. Melanese was sent to the principal’s office, where she was examined and then sent back to the classroom without receiving any medical treatment. The complaint alleged several theories of liability in separate counts: The injuries were the direct and proximate result of the teacher’s negligence in failing to reasonably supervise and control her students by not keeping her sharp-pointed scissors out of reach of her young students when she knew, or should have known, that such students would not be able to handle the scissors safely and would likely cause injury to themselves or other students; both the teacher and the principal were negligent in failing to give the child’s parents prompt notice of the injury and in failing to promptly provide adequate medical attention, the lack of which resulted in aggravation of the injury; and the teacher’s negligent acts were covered by the teacher’s liability insurance with Atlanta International Insurance Company that inured to the benefit of plaintiffs.

The trial court dismissed the amended complaint with prejudice because it failed to allege that the teacher and principal had acted “in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property,” as required by Section 768.-28(9)(a).

At the outset, we note that the record on appeal is completely devoid of any pleading, motion, memorandum of law, or transcript of hearing from the court below showing that the two points urged on appeal were actually raised in the trial court. The order under review does not indicate that any constitutional or waiver question was presented and decided below. We have only the assurance of the attorneys for the parties given at oral argument that these two points were, in fact, argued before the trial court and ruled on by implication in the order of dismissal. Ordinarily, this deficiency in the record would require us to decline consideration of the points urged. In the interest of avoiding further judicial labor to cure this technical deficiency by remanding before final disposition on the merits, we have accepted the joint statements of counsel as sufficient to present these points on appeal. We caution counsel, however, to be mindful of the necessity to raise and preserve on the record in the trial court all issues intended to be presented on appeal.

I

In support of their first major point, appellants argue that Section 768.28(9)(a) is unconstitutional because:

A. It deprives them of their right of access to the courts for redress of injury in violation of Article I, Section 21, of the Florida Constitution, citing Kluger v. White, 281 So.2d 1 (Fla.1973);

B. It violates Article V, Section 2, of the Florida Constitution, which grants procedural rule-making power to the Florida Supreme Court, by requiring that a state agency shall “not be named a party defendant”; and

C. It violates Article II, Section 3, of the Florida Constitution, which provides for the separation of powers among the three branches of government, “in that it represents an improper legislative encroachment into the province of the court by attempting to limit the amount of compensation available to injured plaintiffs in legal actions.”

A.

Prior to oral argument, appellants withdrew Point 1(A), acknowledging that this question had been effectively answered by the Supreme Court in Iglesia v. Floran, 394 So.2d 994 (Fla.1981). Cf., Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981). Accordingly, we need not discuss this point and commend counsel for their candor and assistance to the court.

B.

In support of Point 1(B), based on violation of the judicial article, appellants state that the Supreme Court, in Rule 1.210(a), Florida Rules of Civil Procedure, has promulgated liberal principles for the joinder of parties defendant in that “any person may be made a defendant who has or claims to have an adverse interest to the plaintiff.” Appellants argue that the legislature’s attempt to limit or alter the provisions of that rule by prohibiting a state employee from being joined as a party defendant amounts to an unconstitutional encroachment upon the Supreme Court’s power to promulgate rules governing practice and procedure in the courts of this state, relying on Shingleton v. Bussey, 223 So.2d 713 (Fla.1969) and Markert v. Johnston, 367 So.2d 1003 (Fla. 1978).

We do not agree. Both Shingleton and Markert involved statutory attempts to regulate procedural aspects respecting when, not whether, joinder of liability insurers is proper. Unlike the statute and policy provision under scrutiny in those cases, Section 768.28(9)(a) regulates the substantive rights of the parties. Rupp v. Bryant, 417 So.2d 658 (Fla.1982). Under the statutory scheme, the substantive liability of the school board and its employees is mutually exclusive. Appellants have no cause of action against the teacher and principal for simple negligence; that right of action is exclusively against the school board, which the court below properly recognized and sustained. On the other hand, the teacher or principal may be held liable for their own “acts or omissions ... committed while acting outside the course and scope of [their] employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property”; but the school board cannot. Thus, the question in this case is not at what stage of the proceedings appellees can be joined as parties defendant, but whether they can be joined at all. For this reason, the statute as applied in this case does not unconstitutionally infringe upon the court’s Article Y power.

C.

Appellants’ argument as stated in Point 1(C) of their brief is that prior to the 1980 amendment an injured individual had the option of jointly suing a governmental entity with its employees whose negligence caused the injury and thereby receiving full (or unlimited) compensation by collection of any resulting judgment in excess of the statutory limit from the employees. Now, however, Chapter 768 as amended limits the injured plaintiff’s compensation for negligence to the statutory ceiling applicable to the governmental entity. Relying on a single case, State Plant Board v. Smith, 110 So.2d 401 (Fla.1959), appellants state that “the determination of what is just compensation is a judicial function that cannot be performed by the legislature,” and from that proposition appellants reason that the 1980 amendment to Section 768.28(9) constitutes an improper legislative encroachment into the province of the court by limiting the amount of compensation available to injured plaintiffs. This, appellants conclude, violates Article II, Section 3, Florida Constitution, which requires separation of powers. (Appellants stated in oral argument that they are not attacking the validity of the dollar limitation imposed in suits against the state by Chapter 768.)

We likewise find no merit in this argument. State Plant Board involved a statutory dollar limitation on the compensation to be paid by the state for the value of citrus trees taken in the exercise of the state’s police power. “Just compensation” for such taking was held to be required by Section 29 of Article 16 of the Florida Constitution. That decision did not involve any questions of the liability of governmental employees or governmental immunity, and it is manifestly inapplicable to the question presented here. Since the legislature has the power to raise the degree of conduct necessary for personal liability of governmental employees and since such employees are liable without limitation for willful or wanton misconduct, the legislature has not, by amending Section 768.-28(9)(a), placed any unconstitutional limitation on the amount that may be recovered by plaintiffs.

II

In support of their second major point, appellants argue that the teacher, Victoria Dethloff, must be held to have waived the statutory immunity afforded by Section 768.28(9)(a), Florida Statutes (1980 Supp.), to the extent that she maintained personal liability insurance that covered her alleged acts of negligence. This argument is not based on common law concepts of waiver, nor does the amended complaint contain any allegations that even suggest the elements of common law waiver. The argument, rather, is predicated entirely on analogy to the public policy considerations underlying the court decisions holding that the doctrines of parental immunity and inter-spousal immunity are waived as a matter of law to the extent of available liability insurance coverage. Ard v. Ard, 414 So.2d 1066 (Fla.1982). See also, Tubbs v. Dressier, 419 So.2d 1151 (Fla. 5th DCA 1982), pet. for rev. approved, 435 So.2d 792 (Fla. 1983).

We do not believe that the specific policy considerations relied upon in those cases are applicable or persuasive with respect to waiver of the statutory immunity provisions involved in this case. Both parental immunity and interspousal immunity are common law doctrines originating in court decisions and are not the subject of express legislative enactments. Those doctrines, obviously, may be changed in scope at any time by the court based on new policy considerations acceptable to it. Furthermore, the policy considerations found to mandate limited waiver of immunity in Ard and Tubbs do not reach constitutional proportions and are not sufficiently compelling to warrant overriding the clear legislative purpose of insulating state employees from liability for simple negligence occurring within the course and scope of their employment. Statutory immunity for state employees is a matter clearly within the power of the legislature. Article X, Section 13, Florida Constitution. E.g., Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.1981); Donisi v. Trout, 415 So.2d 730 (Fla. 4th DCA 1982). Waiver of such statutory immunity to the extent of available liability insurance coverage is solely within the power of the legislature to grant or deny.

AFFIRMED.

LARRY G. SMITH and BOOTH, JJ., concur.

      . Appellants’ inclusion of the Duval County School Board and Johnathan Wade in the style of the case is erroneous since neither is a party to this appeal.

      . Section 768.28(9), as amended by Section 1, Chapter 80-271, Laws of Florida, effective July 1, 1980, provides in part:
      No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort or named as a party defendant in any action for-a-final-jadgment whiGh- has been rendered against-him for any injuries or damages suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The exclusive remedy for injury or damages suffered as a result of any act, event or omission of any officer, employee, or agent of the state, or its subdivisions or constitutional officers, shall be by action against the governmental entity, or the head of such entity in his official capacity, or constitutional officer of which the officer, employee or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

      . Shingleton v. Bussey decided that a liability insurer may be joined as party defendant at the outset of an action against its insured, notwithstanding a policy provision to the contrary. In so doing, the court treated the matter as procedural and as governed by Rule 1.210(a), Fla.R. Civ.P.

      . Markert v. Johnston held that the joinder of an automobile liability insurer is procedural, not substantive, and that the legislature’s attempt to regulate such joinder by-enactment of Section 627.7262, Florida Statutes (1977), was an unconstitutional invasion of the court’s Article V power to regulate procedure.

        . Rupp v. Bryant, 417 So.2d 658, 670-71 (Fla. 1982) (Overton, J., concurring).

      .Since appellees declined to allege bad faith, malicious purpose, or wanton and willful disregard of rights as alternative theories to simple negligence, we are not asked to consider whether the statutory prohibition on joinder may be constitutionally applied if such alternative allegations are joined in the same complaint.

      . Now Section 6, Article X, Fla. Const. (1968).

      . Iglesia v. Floran, 394 So.2d 994 (Fla.1981); Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981).


author: PER CURIAM. SHIVERS, Judge,

text:
    Peter VIVIANO, Appellant, v. HURRY KANE INN, INC., and South Carolina Insurance Co., Appellees.
    No. AP-282.
    District Court of Appeal of Florida, First District.
    July 22, 1983.
    Rehearing Denied Aug. 25, 1983.
    Bill McCabe, of Shepherd, McCabe & Cooley, and J. David Parrish, of Hurt & Parrish, Orlando, for appellant.
    Janet R. DeLaura, of Smalbein, Eubank, Johnson, Rosier & Bussey, P.A., Rockledge, for appellees.
   PER CURIAM.

AFFIRMED.

MILLS and BOOTH, JJ., concur.

SHIVERS, J., dissents, with opinion.

SHIVERS, Judge,

dissenting:

I respectfully dissent. The sole medical testimony clearly establishes that claimant’s heart condition was the result of claimant’s spreading mulch on the premises. The treating physician, a cardiologist, testified that, in his opinion, within reasonable medical probability, the heart attack resulted from the activity of spreading mulch on the parking lot. I am also convinced that although claimant had regularly done what work was necessary in the business, his mulch pitching and spreading activity was a strain or exertion not routine to the work the claimant was accustomed to performing. Since the claimant has shown both medical and legal causation, I would find the heart attack compensable and reverse.


author: THOMPSON, Judge.

text:
    REGENCY TOWERS OWNERS ASSOCIATION, INC., Appellant/Cross-Appellee, v. Anna M. PETTIGREW, Appellee/Cross-Appellant, and Florida Commission on Human Relations, Appellee.
    No. AQ-28.
    District Court of Appeal of Florida, First District.
    July 22, 1983.
    Rehearing Denied Aug. 31, 1983.
    William W. Montjoy, Tallahassee, for appellant/ cross-appellee.
    Howell L. Ferguson of Ferguson & Sher-rill, Tallahassee, for appellee/cross-appel-lant Anna M. Pettigrew.
    J. Worth Owen and Dana Baird, Asst. Gen. Counsels for Florida Com’n on Human Relations, Tallahassee, for appellee.
   THOMPSON, Judge.

Regency Towers Owner’s Association, Inc. (Regency Towers) appeals an order of The Florida Commission on Human Relations (the Commission) awarding Pettigrew back pay and an attorney’s fee. Pettigrew cross-appeals the amount of the award. We reverse the award to Pettigrew.

Pettigrew was employed by Regency Towers as manager of its condominium apartment building from March 1977 until September 1978. Pettigrew was fired from this position under circumstances which suggested that she was discharged on account of her sex, contrary to the provisions of the Human Rights Act of 1977, §§ 23.161 — 167, Fla.Stat. (the Act). Petti-grew thereafter filed a complaint with the Commission, charging sex discrimination. Regency Towers then moved to dismiss the complaint for lack of jurisdiction, arguing that it is not an “employer” within the meaning of § 23.162(6), Fla.Stat. “Employer” is defined by § 23.162(6) as:

any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person, (emphasis added).

In his order denying Regency Towers’ motion to dismiss, the hearing officer made the following findings of fact:

[RESPONDENT’S LABOR FORCE DURING 1977]
3. As to the 1977, calendar year, no evidence was presented at hearing to establish that Respondent employed 15 or more employees (or agents) for each working day in each of 20 or more calendar weeks.
[RESPONDENT’S LABOR FORCE DURING 1978]
4. As to the number of persons employed by Respondent during 1978, Respondent employed, during a 25 week period, 15 or more employees — each employee performing actual labor for a period ranging from a portion of one working day to a maximum of 7 working days. (Stipulation of counsel)
5. During 21 weeks of 1978, designated below, Respondent employed 15 or more persons who performed labor services for Respondent either (1) during five days of the designated seven-day work week, or (2) during the weeks immediately preceding and following the designated seven-day work week.... When the total number of days worked by Respondent’s employees during these weeks is divided by the total number of employees working, the average number of days worked by the employees during each working week is calculated to be between 4 and 6 days....
6. During 1978, approximately 16 employees performed labor services for Respondent during periods extending from 18 to 46 weeks....
7. Respondent did not employ 15 or more persons who actually performed labor services for it during each working day in each of 20 or more calendar weeks during 1978....

(Supp. Record, exh. C-2, 3). Neither party disputes the accuracy of these findings of fact.

The hearing officer relied primarily on Pascutol v. Washburn-McReavy Mortuary, 11 Fair Empl.Prac.Cas. (BNA) 1325, (D.Minn.1975), which held a company was an “employer” within the meaning of the Civil Rights Act of 1964, notwithstanding the fact that in no workweek during the pertinent time period did it have, on each working day of the week, an aggregate of 15 or more full and part-time employees on the job, and concluded that his finding of fact number seven was not determinative of the issue. He ruled that Regency Towers was an “employer” under the Act because it had 15 or more employees on its payroll during the pertinent period and because said employees worked an average of four to six days each workweek during the pertinent period. The hearing officer’s findings of fact on the jurisdictional issue and his conclusion that the Commission did have jurisdiction over Regency Towers were incorporated in his recommended order on the merits. His findings were in turn adopted in the final order of the Commission, which also concluded that it had jurisdiction over Regency Towers.

We disagree with the Commission’s finding of jurisdiction. Although we agree with the Commission’s conclusion that the Act is remedial legislation which should be liberally construed in order to effectuate its purpose “to secure for all individuals within the state freedom from discrimination because of ... sex ...” § 23.161(2), Fla. Stat., we also agree with Zimmerman v. North American Signal Company, 704 F.2d 347 (7th Cir.1983) which declined to follow Pascutoi and held that a court’s interpretation of a statutory term cannot contradict the statute’s definition. The Zimmerman court, in interpreting a definition of “employer” which is set out in the Federal Age Discrimination in Employment Act, and which is essentially identical to the definition of “employer” at issue herein, noted:

The Age Discrimination in Employment Act is remedial in nature and should be given liberal interpretation in order to effectuate the purpose of the Act.... Such liberal construction should extend to the definition of employer.... Nevertheless, a court’s interpretation of the term “employer” cannot contradict the statutory definition.
As a general rule, a court should not construe a statute in a way that makes words or phrases meaningless, redundant, or superfluous.... This Act provides that an employer must have twenty or more employees for each working day of a week before that week can be counted toward the jurisdictional minimum, (emphasis in original)

704 F.2d at 353, 354. The Commission’s interpretation of the term “employer” renders meaningless the phrases “each working day” and “each of 20 or more calendar weeks” (emphasis added) which are contained in the Act’s definition of “employer.” Although the terms “working day” and “employees” may be subject to interpretation, the term “each” is not.

Our legislature could have chosen to define employer in some manner other than that set out at § 23.162(6), Fla.Stat. It did not, and neither the Commission nor this court is at liberty to selectively disregard portions of the definition the legislature chose to use. Accordingly, this case is reversed with instructions to the Commission to dismiss Pettigrew’s complaint for want of jurisdiction over Regency Towers. Our disposition of the jurisdictional issue renders Pettigrew’s cross-appeal moot.

REVERSED.

ERVIN, C.J., and WIGGINTON, J., concur.

      . 29 U.S.C.A. §§ 621-634 (1975).


author: WIGGINTON, Judge.

text:
    Paul RENAU, Appellant, v. STATE of Florida, Appellee.
    No. AQ-131.
    District Court of Appeal of Florida, First District.
    July 22, 1983.
    Rehearing Denied Aug. 31, 1983.
    Larry G. Turner and Robert S. Griscti, Gainesville, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., for appellee.
   WIGGINTON, Judge.

Appellant appeals the trial court’s order finding him guilty of attempted burglary of an unoccupied structure in violation of Sections 810.02(3) and 777.04(4)(c), Florida Statutes. He argues that the trial court erred in denying his motion to dismiss the charge on the ground that Section 777.-04(4)(c) is unconstitutional and violative of his rights of equal protection and due process. We affirm.

Appellant was found guilty of attempted burglary in the third degree. Section 777.-04(4)(c) provides:

If the offense attempted, solicited, or conspired to is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree .... (Emphasis supplied)

Thus, the attempt to commit third degree burglary is punishable under that statutory provision to the same extent as the consummated crime of third degree burglary. Although Section 777.04(4) operates generally to reduce an attempted crime one degree below the consummated crime, pursuant to 777.04(4)(c) offenders who attempt a first degree burglary are reduced two degrees to third degree burglary whereas those who attempt a third degree burglary receive no reduction for the unconsummated crime. Appellant’s position is that that result violates equal protection in that all people who fall within the classification of “any burglary” are not treated equally. We disagree.

To comply with equal protection requirements, a statute must treat all people within a class the same, and the division into classes must bear some reasonable relationship to a legitimate state objective. Haber v. State, 396 So.2d 707 (Fla.1981); Soverino v. State, 356 So.2d 269 (Fla.1978). The Florida Legislature acted within its province in declaring that such a serious crime as attempted burglary deserved to be punished always as a felony and never as a misdemeanor. See Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977) and State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla. 3d DCA 1977). The legislature’s categorization of this criminality constitutes a reasonable classification based upon the legitimate state objective of protecting citizens and their property from the threat of invasion. We conclude that the classification, as felons, of all those persons attempting burglary is grounded on a rational basis. Further, all offenders within the class are treated the same and are subject to being charged alike, as third degree felons, and none are treated more harshly than others. Therefore, Section 777.04(4)(c) does not violate equal protection.

AFFIRMED.

ERVIN, C.J., and THOMPSON, J., concur.