author: BOYD, Chief Justice.

text:
    Aldelbert RIVERS, Appellant, v. STATE of Florida, Appellee.
    No. 62127.
    Supreme Court of Florida.
    Nov. 1, 1984.

      Randolph Q. Ferguson, Miami, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for appellee.
   BOYD, Chief Justice.

This is an appeal from a judgment of conviction of several felonies, among them a conviction of first-degree murder for which a sentence of death was imposed. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons stated in this opinion, we affirm appellant’s convictions but reduce his sentence for first-degree murder from death to life imprisonment.

Appellant Aldelbert Rivers and two other men entered a restaurant while armed and demanded money. Appellant shot and killed a waitress and fired two more shots as he left the building. Police appeared on the scene immediately and apprehended appellant in a nearby graveyard. When arrested, appellant asked about the woman shot at the restaurant. He was taken to a police station where, after being advised of his constitutional rights, he signed a written confession. Appellant’s pretrial motion to suppress the confession was denied.

Several eyewitnesses testified at the trial about the robbery and shooting. Some of them positively identified appellant as the man who shot-the waitress. A detective related appellant’s confession. A medical examiner testified that the victim died of a gunshot wound to the chest.

Appellant presented an insanity defense. A psychologist testified that appellant suffered from a long-standing and major mental disorder involving alcohol and drug abuse. Appellant’s sister testified that appellant had been very moody prior to the murder due to problems at work and not being able to make enough money to marry his girlfriend and take care of their two children.

In rebuttal two court-appointed psychiatrists who had examined appellant before the trial testified that though appellant suffered from a personality disorder, he was not psychotic and he knew right from wrong.

The jury convicted appellant of first-degree felony murder, robbery, and possession of a firearm while engaged in a criminal offense. The jury’s verdict on the capital offense specified felony murder rather than premeditation as the basis of liability.

At the penalty phase, friends and relatives testified that appellant had an unfortunate childhood and that he had never before been convicted of a crime. After hearing this evidence and the arguments of counsel and receiving the instructions of the court, the jury recommended a sentence of life imprisonment. The trial judge disagreed with the jury’s recommendation, finding that the existence of only one mitigating factor and three aggravating factors called for a sentence of death.

In this appeal, appellant raises the issues of whether the trial court erred by refusing to allow “backstriking” during voir dire; whether the court erred in not holding a competency hearing; whether a non-expert witness was erroneously allowed to testify as to appellant’s sanity; whether appellant’s confession should have been suppressed; and whether the sentence of death was proper.

With respect to the first issue, appellant points out that during voir dire the trial judge stated that she was not going to allow any more “backstriking.” During jury selection, a group of prospective jurors is typically seated in the “jury box” for the initial round of voir dire examination. After some questioning, the exercise by respective counsel of their peremptory ex-cusáis and challenges for cause may result in dismissal of some prospective jurors, and their vacated seats are then filled by new prospective jurors. The effect of the judge’s ruling was to require the lawyers to accept any prospective jurors not challenged at the first opportunity. We agree with appellant’s assertion that this procedure violated Florida Rule of Criminal Procedure 3.310, which provides that a defendant may challenge a prospective juror before the juror is sworn. Jones v. State, 332 So.2d 615 (Fla.1976). However, because defense counsel did not subsequently attempt to “backstrike” any prospective juror after the judge made this statement, this issue has not been properly preserved for appeal. Denham v. State, 421 So.2d 1082 (Fla. 4th DCA 1982). In addition, given the overwhelming evidence of appellant’s guilt, we find that noncompliance with this rule was harmless error. Jones v. State.

Next appellant argues that the trial judge should have held a hearing to determine his competency to stand trial. Though defense counsel did not request such a hearing, appellant argues that, by virtue of his having raised insanity as a defense, there was reasonable ground to believe he was not mentally competent to stand trial and the court therefore should have ordered a hearing on its own motion pursuant to Florida Rule of Criminal Procedure 3.210(b). An identical argument was refuted in State v. Tait, 387 So.2d 338 (Fla.1980), where the defendant raised the defense of insanity but did not move for a hearing to determine his competency to stand trial. We concluded

that there was nothing before the court sufficient to raise a reasonable doubt as to the respondent’s mental competence at trial. The trial court was not required to order a hearing on its own motion.
The rule [Fla.R.Crim.P. 3.210] draws a clear distinction between incompetence at the time of trial and insanity at the time of the offense. The judge’s knowledge of results of examination ordered in connection with the defendant’s reliance on the defense of insanity may or may not give rise to reasonable doubt of his competence to stand trial. Here, none of the reports or testimony before the court before or during trial gave rise to reasonable ground to believe the defendant incompetent to stand trial.

Id. at 340-41. Similarly, in this case appellant was examined before trial by two psychiatrists who declared him to be competent to stand trial. Therefore we find the trial court did not err in not holding a competency hearing on its own motion.

Appellant’s third point on appeal is that the trial judge erred by allowing a detective to give an opinion as to appellant’s sanity. We find no merit to this argument. It is a well established principle of law in this state that an otherwise qualified witness who is not a medical expert can testify about a person’s mental condition, provided the testimony is based upon personal knowledge or observation. E.g., Sealey v. State, 89 Fla. 439, 105 So. 137 (1925); Hixon v. State, 165 So.2d 436 (Fla. 2d DCA 1964).

We also find no merit to appellant’s argument that his- confession should have been suppressed because it was not voluntarily given. In reviewing the totality of the circumstances, we find sufficient evidence to support the trial judge’s finding that the confession was freely and voluntarily made.

However, we agree with appellant’s assertion that the trial judge improperly imposed a sentence of death in this case. As aggravating circumstances, the trial judge found that the murder created a great risk of death to many persons, section 921.-141(5)(c), Florida Statutes (1981); that it was committed during the commission of a felony, section 921.141(5)(d), and for pecuniary gain, section 921.141(5)(f); and that it was committed for avoiding or preventing a lawful arrest, section 921.141(5)(e). The trial judge concluded that these three aggravating circumstances outweighed the single mitigating circumstance of appellant’s lack of a significant history of prior criminal activity. See § 921.141(6)(a), Fla. Stat. (1981).

First, we hold that the judge erred in finding that the murder was committed for the purpose of avoiding a lawful arrest. The judge based her finding on the testimony that appellant shot the waitress as she turned to run down a hallway. The trial judge concluded from this fact that appellant shot the waitress to prevent her from leaving the restaurant and alerting authorities. We find this conclusion to be speculative and the evidence insufficient to prove beyond a reasonable doubt that this was the reason appellant shot the waitress. Past cases show that a finding of this circumstance should be based on direct evidence as to motive or at least very strong inference from the circumstances. See, e.g., Oats v. State, 446 So.2d 90 (Fla.1984); Bolender v. State, 422 So.2d 833 (Fla.1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983). Our ruling is also supported by the fact that the jury found appellant guilty of felony murder, not premeditated murder.

More importantly, we find that the judge erred in overriding the jury’s recommendation of a life sentence. In Tedder v. State, 322 So.2d 908, 910 (Fla.1975), this Court said: “In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ.” See, e.g., McCampbell v. State, 421 So.2d 1072 (Fla.1982); Stevens v. State, 419 So.2d 1058 (Fla.1982), cert, denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983); Odom v. State, 403 So.2d 936 (Fla. 1981), cert, denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982); Neary v. State, 384 So.2d 881 (Fla.1980). Here, it appears that the judge merely disagreed with the jury’s recommendation. In this case there was substantial evidence offered in mitigation which the jury could reasonably have relied upon in reaching its advisory verdict. We therefore conclude that the recommendation of life imprisonment should have been followed.

We therefore affirm appellant’s convictions but reverse his' sentence of death and remand with instructions to impose a sentence of life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

ADKINS, OVERTON, ALDERMAN, MCDONALD, EHRLICH and SHAW, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The ABSTRACT CORPORATION, a Florida Corporation, and Chelsea Title and Guaranty Company, a New Jersey Corporation, Petitioners, v. FERNANDEZ COMPANY, a Florida Corporation, Respondent.
    No. 63971.
    Supreme Court of Florida.
    Nov. 1, 1984.
    Rehearing Denied Jan. 23,1985.
    W.C. Hutchison, Jr. of Hutchison & Má-mele, Sanford, for petitioners.
    Richard R. Cook of Kane & Cook, Day-tona Beach, and William A. Spence, Or-mond Beach, for respondent.
   BOYD, Chief Justice.

This case is before us on petition for review of the decision in Fernandez Co. v. Birtley, 435 So.2d 280 (Fla. 5th DCA 1983). We granted review on the jurisdictional ground of conflict with Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940), and First American Title Insurance Co. v. First Title Service Co., 423 So.2d 600 (Fla. 3d DCA 1982), quashed, 457 So.2d 467 (Fla.1984). Art. V, § 3(b)(3), Fla. Const.

Respondent Fernandez Company was the defendant in a quiet title action brought by Irving and Jessie Birtley, which sought to establish their title to a certain parcel of land by adverse possession under color of title. Fernandez Company filed a third party complaint naming its immediate predecessors in title and two abstract companies — the petitioners here — as third party defendants and alleging that if the Birt-leys should prevail in their quiet title action Fernandez Company would suffer harm caused by breach of warranties of title by its grantors and by the negligent preparation of abstracts on the part of the two abstracters. Ultimately, the Birtleys did prevail in their quiet title action. See Birt ley v. Fernandez Co., 392 So.2d 291 (Fla. 5th DCA 1980).

Fernandez Company’s complaint alleged that The Abstract Corporation and Chelsea Title and Guaranty Company had prepared abstracts for Fernandez’ predecessors in title and that the abstracts, due to the negligence of the abstracters, had failed to note the existence of seven deeds which, as the district court expressed it, formed “Birtley’s chain of title which constituted the color of title under which Birtley’s adverse possession prevailed over the record title of Fernandez Co.” 435 So.2d at 282. After trial to the court the trial judge entered judgment for the defendant abstract-ers finding that the omission of the deeds from the abstracts did not constitute “actionable negligence.”

The district court of appeal reversed. The court analysed the evidence and found that the abstracters had indeed failed to exercise due care in preparing the abstracts. The court further reasoned, based on A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973) and Kovaleski v. Tallahassee Title Co., 363 So.2d 1156 (Fla. 1st DCA 1978), that abstracters owe a duty of care to anyone who foreseeably relies on their abstracts in the ordinary course of real estate commerce. Thus the decision of the district court was in clear conflict with Sickler v. Indian River Abstract & Guaranty Co., 142 Fla. 528, 195 So. 195 (1940), where the Court held that an abstracter only owes a duty to one in contractual privity with him.

Since the rendition of the district court’s decision in this case, we have addressed the issue of an abstracter’s liability for the negligent preparation of an abstract. First American Title Insurance Co. v. First Title Service Co., 457 So.2d 467 (Fla. 1984). In that case we revisited the old strict privity rule of Sickler v. Indian River Abstract & Guaranty Co. and held that an abstracter’s duty of care extends not only to the one procuring the abstract — often the seller of the land — but also to a purchaser of property to whom the abstract is furnished if the abstracter knows or should know of the intended use by the purchaser. We also held that a title insurer who had compensated a purchaser for the loss occasioned by the abstracter’s negligence could proceed against the abstracter under subrogation principles. But we specifically declined to extend an abstracter’s liability to any person who might fore-seeably rely on a negligently prepared abstract to his detriment.

Applying our First American Title decision to this case, we find that Fernandez Company’s complaint failed to state a cause of action. The complaint, as amended, alleged that the abstracts in question were prepared for a predecessor in title of Fernandez Company and were relied on by the predecessor in title and by Fernandez Company as showing good and marketable title. The complaint included no allegation that the abstracts were prepared for Fernandez Company’s immediate predecessors in title nor that the abstracters furnished the abstracts in the actual or constructive knowledge of their intended prospective use by Fernandez Company. Under First American Title, there was no allegation sufficient to establish that Fernandez Company was an intended beneficiary of the contract for abstracting services.

We therefore quash the decision of the district court of appeal and remand with instructions that the trial court’s judgment for the defendants be affirmed.

It is so ordered.

OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs in result only.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. David M. PORTER, Respondent.
    No. 64031.
    Supreme Court of Florida.
    Nov. 1, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    David M. Porter, Tampa, in pro. per., for respondent.
   PER CURIAM.

The Florida Bar filed a complaint against Porter, a member of the Bar, and this Court appointed a referee to hear the matter. After conducting a hearing, the referee found Porter guilty of violating disciplinary rules 1-102(A)(6) (misconduct reflecting adversely on his fitness to practice law) and 6-101(A)(3) (neglect in failing to provide information to his client as requested and as promised to the grievance committee). The referee also found Porter not guilty of violating disciplinary rule 1-102(A)(4) (conduct involving misrepresentation or deceit) or article XI, rule 11.02(3)(a) (conduct contrary to honesty, justice, or good morals). The referee then made the following recommendation as to discipline:

I recommend that the respondent be privately reprimanded by personal appearance before the Board of Governors as provided in Rule 11.10(2) so long as he provides to Mr. Maloney [a former client] a pro se motion to vacate the sentences for his possible use, an accounting to him for his funds and their use, what was done in his behalf and the present status of his case. If the respondent fails to provide said information with copies to the referee and Bar counsel within 30 days of my recommendation made orally at final hearing on June 19, 1984, then I recommend he receive a public reprimand with a required personal appearance before the Board of Governors.

Neither Porter nor the Bar has contested the referee’s report, and the Bar has informed us that Porter has not complied with the conditions set by the referee. We therefore direct David M. Porter to appear before the Board of Governors, at a time and place set by the board, to receive a public reprimand. Costs in the amount of $802.24 are taxed against Porter.

It is so ordered.

ADKINS, Acting C.J., and OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur.


author: OTT, Chief Judge.

text:
    WILDERNESS COUNTRY CLUB PARTNERSHIP, LTD., Wesley G. Downing, Earl L. Frye, and Charles L. Shumway, Appellants/Cross Appellees, v. John T. GROVES and Leo A. Hoellen, individually and as representatives of a class consisting of owners of Wilderness Country Club Condominium; Wilderness Country Club Association, Inc., and Wilderness Country Club, Inc., Appellees/Cross Appellants.
    No. 82-2208.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
    Steven D. Merry day of Glenn, Rasmussen, Fogarty & Merryday and Daniel F. Molony, Tampa, for appellants/cross appel-lees.
    Timothy R. Thornton of Rider, Bennett, Egan & Arundel, Minneapolis, Minn., and Karl L. Johnson of Nuckolls & Johnson, Fort Myers, for appellees/cross appellants.
    David M. Maloney, Deputy Gen. Counsel, Dept, of Business Regulation, Tallahassee, for Div. of Fla. Land Sales and Condominiums, as amicus curiae.
   OTT, Chief Judge.

This appeal involves a condominium recreational facilities sublease. The trial court declared invalid a rent escalation clause therein and rescinded the entire sublease. We affirm.

The following facts bear on the issues before us. In June, 1973, the Frank family leased land to appellant Downing for ninety-nine years (the lease). Shortly thereafter, construction of a golf course and related facilities on the leased premises began. On June 27, 1974, appellant Wilderness Country Club Partnership, Ltd., consisting of appellants Downing, Frye, and Shum-way (the partnership), formed Wilderness Country Club, Inc. (the club), to manage and operate the golf course. Membership in the club was limited to owners of condominiums to be constructed on property adjacent to the golf course. The same day Downing sublet the golf course property to the club for a period of ninety-seven years (the sublease). The original lease from Frank to Downing and the sublease from Downing to the club specified that base annual rent would increase at five-year intervals according to changes in a consumer price index.

In July, 1974, Downing assigned his rights as lessee under the Frank lease and as sublessor under the club sublease to the partnership. The partnership completed construction of the golf course and facilities and commenced construction of the adjacent condominiums.

On December 30, 1975, the partnership formed Wilderness Country Club Association, Inc., to manage, operate, and maintain the condominiums and common elements to be known as Wilderness Country Club Condominiums, and to cooperate with the club in the maintenance of the golf course facilities. On January 9, 1976, the partnership recorded the first of eleven declarations of condominium for Wilderness Country Club Condominium. The declaration required all condominium unit owners to be members of the association and the club, and the declaration made reference to the sublease. Hence, the association and the club would consist of the same membership.

In 1978, appellees, owners of Wilderness condominium units, and the association and the club (both now controlled by the condominium unit owners) filed suit against appellants, seeking, inter alia, to have the rent escalation clause declared invalid pursuant to section 718.401(8)(a), Florida Statutes (1977). Appellants counterclaimed asking, among other things, for rescission of the entire sublease in the event'the rent escalation clause was invalidated. Both parties moved for summary judgment on the claims hereinbefore set forth. The trial court entered final summary judgment rendering the rent escalation clause unenforceable, relying on section 718.401(8)(a), Florida Statutes (1977), and Hovnanian Florida, Inc. v. Division of Land Sales and Condominiums, 401 So.2d 851 (Fla. 1st DCA 1981), review denied, 415 So.2d 1360 (Fla.1982). The court further granted final summary judgment rescinding the entire sublease.

Appellants now challenge the unen-forceability of the rent escalation clause, arguing that section 718.401(8)(a) was applied retroactively, resulting in an unconstitutional impairment of contract. There is no dispute that the escalation clause in this case is contrary to the express terms of the statute. Appellees have cross appealed the rescission of the sublease.

Section 718.401(8)(a), formerly section 711.231, became effective June 4,1975, specifically prohibiting and declaring void for public policy reasons “the inclusion or enforcement of escalation clauses in leases or agreements for recreational facilities, land, or other commonly used facilities serving condominiums.” In Fleeman v. Case, 342 So.2d 815 (Fla.1977), the court held that the legislature did not intend retroactive application of this statute, and even if it had, such application would be an unconstitutional impairment of the obligation of contract under article I, section 10, of both the United States and Florida Constitutions.

Recently, the supreme court approved the application of section 718.401(8)(a) to a recreational facilities lease executed prior to 1975. In Angora Enterprises, Inc. v. Cole, 439 So.2d 832 (Fla.1983), the developer of a condominium was the lessor under a pre-1975 recreational lease which contained an escalation clause based on increases in the cost of living index. The declaration of condominium, recorded prior to 1975, bound each unit owner upon becoming a member of the condominium association to pay a proportional share of the recreational facilities rent. The declaration incorporated the provisions of the condominium act defined in the declaration as “the Condominium Act of the State of Florida (f.s. 711, Et Seq.) as the same may be amended from time to time.’’ (Emphasis in Angora).

The declaration was signed by the developer and the condominium association, the same two parties who signed the lease. The lease was attached to and made a part of the declaration and the lease referred back to the declaration. The supreme court held “that the parties intended to be bound by future amendments to the condominium act and as such section 718.401(4) is applicable and enforceable under the facts of the instant case.” Angora, 439 So.2d at 834. The court distinguished Flee-man, finding no language in the Fleeman documents evidencing an intent on the part of the lessor to incorporate the condominium act or its future amendments into the contract.

In the instant case, the declaration submits the property to condominium ownership “pursuant to chapter 711, Florida Statutes, the Condominium Act.” When the declaration was recorded, section 711.231, the anti-escalation clause statute, was a part of the condominium act. The recreational facilities sublease refers to the declaration of condominium to be recorded in the future. The declaration refers to the recreational facilities sublease. The declaration obligates unit owners to join the club and requires them to make the payments under the sublease. The same individuals, although in different partnership and corporate capacities, developed the condominium, executed the declaration, and were subles-sors and sublessees of the recreational facilities sublease. These documents evidence an intent of these individuals to be bound by the condominium act as it existed when the declaration was recorded. Therefore, as in Angora, application of section 718.401(4) is not unconstitutional. See also Hovnanian, supra.

We now turn to the issue of rescission of the entire recreational facilities sublease. Section 718.401(8)(a) “prohibits the inclusion or enforcement of escalation clauses” in facilities leases serving residential condominiums. Nowhere does the condominium act mention whether rescission of such a lease in its entirety is available if an escalation clause is invalidated. In Local No. 234 v. Henley & Beckwith, 66 So.2d 818 (Fla.1953), the supreme court analyzed the circumstances under which the presence of an illegal or unenforceable provision in a contract renders the entire contract invalid:

[T]he authorities hold generally that a contract should be treated as entire when, by a consideration of its terms, nature, and purpose, each and all of its parts appear to be interdependent and common to one another and to the consideration. Stokes v. Baars, 18 Fla. 656; 12 Am.Jur., Contracts, sec. 316. Stated differently, a contract is indivisible where the entire fulfillment of the contract is contemplated by the parties as the basis of the arrangement. Hyde & Gleises v. Booraem & Co., 16 Pet. 169, 10 L.Ed. 925. On the other hand, a bilateral contract is severable where the illegal portion of the contract does not go to its essence, and where, with the illegal portion eliminated, there still remains of the contract valid legal promises on one side which are wholly supported by valid legal promises on the other. Williston on Contracts, rev. ed., Vol. 6, sec. 1782.
Whether a contract is entire or divisible depends upon the intention of the parties. Ireland v. Craggs, 5 Cir., 56 F.2d 785 [ (1932) ]. And this is a matter which may be determined “by a fair construction of the terms and provisions of the contract itself, and by the subject matter to which it has reference.” 12 Am.Jur., Contracts, sec. 315.

Id. at 821-822. Where one contractual provision is void, the balance of the contract is also void unless the balance fairly reflects the original intent of the parties to the contract. Brooks v. Palm Bay Towers Condo Ass’n, Inc., 375 So.2d 348 (Fla. 3d DCA 1979).

Judged by this standard, we think the sublease was nondivisible and therefore appellants were entitled to rescission of the entire recreational facilities sublease. Without rescission, appellants would receive only the base rent, a portion of the rent originally contemplated in the sublease. The benefits granted to appellees under the sublease are nondivisible — the sublease does not assign monetary values to separate rights and privileges enjoyed by appellees under the sublease. Hence, the base rent and the periodic increases pursuant to the escalation clause relate to one object or purpose, the use and enjoyment of all recreational facilities. Cf. Singleton v. Foreman, 435 F.2d 962 (5th Cir. 1970) (where contingent fee portion of attorney fee contract void, retainer not allowed to stand alone). Generally, the price term in a contract is vital; severing the price term eliminates the essence of the contracting parties’ agreement. Id.

We hasten to emphasize that the escalation clause in this case was not void at the time the sublease was executed. Therefore, it cannot be said that it was included in the sublease with malicious intent or reprehensible motive. The trial court rejected appellees’ contention that appellants had “unclean hands” and were therefore not entitled to the equitable remedy of rescission. This finding by the trial court is supported by substantial competent evidence.

The appellees, along with the Division of Florida Land Sales and Condominiums as amicus curiae, contend that rescission will chill the exercise of rights afforded to condominium unit owners by section 718.-401(8). On the contrary, rescission will allow the parties to negotiate at arms length a new sublease which will be fair and equitable to all parties.

The decision of the trial court is AF- ■ FIRMED.

HOBSON and LEHAN, JJ., concur.

      . The trial court’s order ensures that unit owners will continue to have access to the recreational facilities while the parties negotiate a new sublease.


text:
    Robert OLSEN, Appellant, v. STATE of Florida, Appellee.
    No. 83-2715.
    District Court of Appeal of Florida, Fourth District.
    June 20, 1984.
    Rehearing Granted Aug. 29, 1984.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Reversed and remanded for further proceedings on the authority of Hicks v. State, 452 So.2d 606 (Fla. 4th DCA 1984). We also note for the purpose of avoiding a reoccurrence of the problem that in our view the sentencing guidelines adopted by the Supreme Court in 1983 apply to all sentences imposed after October 1, 1983, including sentences imposed after the revocation of probation. Of course, persons convicted of crimes which occurred before October 1, 1983 have the option to proceed under the guidelines. See, e.g., In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983).

ANSTEAD, C.J., DOWNEY, J., and RODGERS, EDWARD, Associate Judge, concur.


text:
    Rex BOGERT, Petitioner, v. Louie L. WAINWRIGHT, as Secretary, Department of Corrections, State of Florida, Respondent.
    No. AZ-168.
    District Court of Appeal of Florida, First District.
    June 29, 1984.
    Rex Bogert, pro se.
    Jim Smith, Atty. Gen., and E. Jason Vail, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is granted. Respondent shall release petitioner immediately on the authority of Pettway v. Wainwright, 450 So.2d 1279 (Fla. 1st DCA 1984).

ERVIN, C.J., and SMITH and JOANOS, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    Louis NOTO, Appellant, v. GREENBROOK JACARANDA ASSOCIATES, III, LTD., a Florida Limited Partnership, d/b/a Greenbrook Lakes of Jacaranda Association, Appellee.
    No. 83-1201.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Rehearing Denied Dec. 6, 1984.
    Bernard Berman, Fort Lauderdale, for appellant.

      Alan R. Stone of Goldberg, Semet, Lick-stein & Morgenstern, Coral Gables, for ap-pellee.
   PER CURIAM.

We reverse the order entered ex parte which struck the plaintiffs pleading, along with the final judgment entered ex parte upon authority of Owens-Illinois, Inc. v. Lewis, 260 So.2d 221 (Fla. 1st DCA 1972).

Plaintiff/appellee relies upon Webber v. Brickley, 239 So.2d 633 (Fla. 3d DCA 1970), as a way to salvage the wrongly entered ex parte order and judgment. We are of the opinion that such reliance is misplaced.

In Webber v. Brickley, supra, as here, there was an ex parte order entered. It dismissed the cause for failure to comply with a discovery order. It was there recited:

We think this record reveals that appellant did not make a good faith attempt to comply with the discovery order. The absence of notice upon the application for the final judgment was not fatal under these circumstances. This decision is reinforced by the fact that appellant moved for and received a rehearing upon the final judgment. By granting a rehearing the trial court gave appellant an opportunity to present any valid reason for vacating the final judgment, thereby fulfilling the purpose of the notice provision of Rule 1.420(b), Florida Rules of Civil Procedure, 30 F.S.A. See Voss v. Voss, Fla.App.1964, 169 So.2d 351. The record fails to show, through the petition for rehearing or other means, an explanation for appellant’s failure to make the discovery ordered. Id. at 634.

There are two ways we distinguish the Webber decision.

First, Webber notes from its record that appellant did not make a good faith effort to comply with the discovery order and that there was no reflection of an explanation for appellant’s failure to comply with the discovery order. In the instant case we cannot make such determination. The allegations of this appellant’s motion for rehearing, had rehearing been granted and appellant allowed an opportunity to prove same, very well may have justified appellant’s earlier conduct, depending, too, on the proofs adduced by appellee.

Second, in Webber, appellant moved for and was granted a rehearing. Thereupon, appellant was given an opportunity to contest the issue sufficient to fulfill the notice requirements of the Rules. In the instant case, appellant was denied a rehearing and given no opportunity to contest or establish the impropriety of the ex parte order and judgment.

Because of the foregoing, we are of the opinion that this case is governed by the principles announced in Owens-Illinois, Inc. v. Lewis, supra.

Reversed.

HERSEY and WALDEN, JJ., concur.

GLICKSTEIN, J., dissents with opinion.

GLICKSTEIN, Judge,

dissenting:

The record reflects the following:

1. In February, 1978, the plaintiff-appellant filed a two-count action. The first was for specific performance. The second was for damages in excess of $2,500, which was jurisdictionally proper for the circuit court at that time.

2. No action was taken by either party for six months after the cause was at issue in September 1979.

3. In March, 1980, defendant served the plaintiff with a notice to file a non-resident cost bond. Two months later, because of the plaintiff’s non-compliance, the defendant moved to dismiss, whereupon the plaintiff filed the statutory bond.

4. No action was taken thereafter for eleven months, at which point the parties agreed that the plaintiff could file an amended complaint. The plaintiff did so in April 1981, dropping the claim for specific performance and proceeding with a two count claim for damages arising out of an alleged breach of contract and conversion as to a $1,000 deposit made in February 1978. The first count was for compensatory damages in excess of $2,500; and the seocnd, for compensatory and punitive damages in excess of $2,500. In 1981, the circuit court’s minimum jurisdiction was $5,000. I find it unnecessary, for my opinion, to enter into the labyrinth of any jurisdictional question. See 20 Am.Jur.2d Courts § 167 (1965 & Supp.1983) and cases cited therein.

5. Trial was set for November 8, 1982, then May, 1983, after the defendant filed twenty-five affirmative defenses, (nine of which were sentences reciting why the amended complaint failed to state a cause of action), and plaintiff replied thereto.

6. On November 8, 1982, the defendant sent nine interrogatories, to the plaintiff, assumingly in order to establish a lack of credibility in some fashion, inquiring as to his marital status, identity of his children, identity of the dealership in Florida where he purchased a car as well as the disposition of the car and finally, the identity of all of plaintiff’s racehorses owned in 1978.

7. On November 9, 1982, the defendant served the plaintiff with a notice to produce his income tax returns for 1977 and 1978 as well as the title to the above car, assumingly for the same reason as the above interrogatories.

8. The plaintiff’s unilateral pre-trial catalog alleged that his agent signed two contracts with the defendant, after delivering $2,000 in cash deposits for construction of two homes. The amended complaint refers to only one contract for $1,000; and the exhibit attached thereto reflects the signature of the plaintiff, not an agent; nor does it identify any agent.

9. The defendant’s unilateral pre-trial catalog alleged that the defendant never accepted cash, only checks, and has no record of having received any sum from the plaintiff. It also alleged the so-called contracts between the parties were only binder receipts, not contracts; and that contracts were never executed. Nevertheless, it recites an offer to return the plaintiff’s deposits.

10. There is no order in the record dated January 26, 1983; yet on February 18, 1983, the defendant moved to strike the plaintiff’s pleadings, based on (a) an order of January 26, 1983, which ostensibly ordered the plaintiff to answer the interrogatories and produce the above-described documents, and further ordered that if he did not comply within twenty days, his pleadings would be stricken; and (b) the plaintiff’s failure to comply with either.

11. On April 1, 1983, there was a flurry of activity by both parties:

A. The plaintiff served the defendant by mail with (1) answers to interrogatories, bearing a notary’s certificate dated March 16, 1983, and (2) an unsworn response to the notice to produce, signed by the plaintiff’s attorney, attaching a copy of the 1978 income tax return and representing that the 1977 return is unavailable to the plaintiff.
B. The defendant filed an ex parte motion to strike the plaintiff’s pleadings, without serving a copy upon the plaintiff’s attorney, and obtained from the trial court, ex parte, an order which struck the plaintiff’s pleadings as well as a final judgment, both based upon the affidavit of the defendant’s attorney that she had received none of the discovery items.

12. On April 4,1983, the plaintiff moved for rehearing, wherein his attorney alleged in an unsworn motion that the plaintiff had been deprived of due process; that the answer to interrogatories had been hand delivered on February 25, 1983 (these have to have been unsworn, as the plaintiff apparently never swore to the answers until March 16th); that the defendant’s attorney had been advised of the difficulty in getting the income tax returns; and that the answers to interrogatories established that the plaintiff could not produce title to the “unidentified” car.

13. On May 17, 1983, the trial court heard the plaintiff’s unsworn motion for rehearing and argument of his attorney and denied the motion.

14. On appeal, the defendant-appellee made no attempt to supplement the record by including the critical order of January 26, 1983, but placed it at the rear of its brief as an “appendix,” notwithstanding that Florida Rule of Appellate Procedure 9.220 contemplates copies of orders that are in the record before the appellate court.

15. The copy of the order contained in the “appendix” does not provide that the defendant could apply ex parte, without notice to the plaintiff, for an order striking the plaintiffs pleadings.

I elaborate upon all of the facts because of the concerns which I expressed for efficiency in the judicial process in my concurring opinion in Ream v. State, 449 So.2d 960 (Fla. 4th DCA 1984), which I shall not repeat here.

My opinion is initially based upon two cases decided by our companion courts in situations wherein an ex parte order is obtained without notice. The first on which appellant relies and the majority opinion is based, is Owens-Illinois, Inc. v. Lewis, 260 So.2d 221, 225-26 (Fla. 1st DCA 1972), wherein the court said:

Based upon the foregoing authorities we deem it inescapable that the judgment appealed herein must be reversed and the cause remanded for further proceedings. Firstly, it is obvious that the court’s order of November 12, 1970, requiring defendant to answer the interrogatories propounded by plaintiffs within 14 days thereafter was not self-executing. While it is true that the order recited that upon failure of defendant to fully comply with the requirements of the order, its defenses would be stricken and default judgment entered against it, defendant was nevertheless entitled to an opportunity to be heard on any motion by the plaintiffs to invoke the sanctions set forth in the order. The record is clear that the hearing on plaintiffs’ affidavit of noncompliance by defendant was held ex parte without notice to defendant. Such procedure was unauthorized and deprived defendant of the opportunity of being heard and offering any evidence it might have of a mitigating or extenuating nature. The order striking defendant’s defenses and entering a default judgment against it having been rendered pursuant to an ex parte hearing without notice, the order was invalid and cannot form a proper basis for the judgment appealed.

I completely agree with that holding.

The second, Webber v. Brickley, 239 So.2d 633 (Fla. 3d DCA 1970), upon which appellee relies, adds an element which exists in the present case; namely, given the inappropriateness of an ex parte order, is due process fulfilled when the trial court entertains a motion for rehearing which asserts the reasons for non-compliance? The Third District Court said it is; and I also agree with its following holding:

Appellant urges that because she made some attempt to comply with the October 15th order requiring discovery, the court abused its discretion by dismissing the cause upon an ex parte order. See Hy-man v. Schwartz, Fla.App. 1965, 177 So.2d 750. We think this record reveals that appellant did not make a good faith attempt to comply with the discovery order. The absence of notice upon the application for the final judgment was not fatal under these circumstances. This decision is reinforced by the fact that appellant moved for and received a rehearing upon the final judgment. By granting a rehearing the trial court gave appellant an opportunity to present any valid reason for vacating the final judgment, thereby fulfilling the purpose of the notice provision of Rule 1.420(b), Florida Rules of Civil Procedure, 30 F.S.A. See Voss v. Voss, Fla.App.1964, 169 So.2d 351. The record fails to show, through the petition for rehearing or other means, an explanation for appellant’s failure to make the discovery ordered.

My opinion is also based upon another factor in the present case, namely that appellant’s unsworn motion was valueless to the trial court, as was any unsworn representation of the plaintiff’s attorney at the hearing on the motion for rehearing. We should no more permit unsworn motions, unsupported by affidavit or testimony, which seek relief in this type of case, than we would entertain an unsworn motion unsupported by affidavit or testimony in a case of someone claiming excusable neglect to avoid terminal sanctions. See, generally, as to the ineffectual legal use of attorney’s unsworn representations, Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982); Chrysler Corporation v. Miller, 450 So.2d 330 (Fla. 4th DCA 1984); and Westinghouse Elevator Company v. DFS Construction Company, 438 So.2d 125 (Fla. 2d DCA 1983).

I would affirm.


author: RIVKIND, LEONARD, Associate Judge.

text:
    CHRISTOPHER’S, INC. and Ohio Casualty Insurance Company, Appellants, v. Lois PODOLNICK, et al., Appellees.
    No. 83-1704.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 1984.
    Rehearing Denied Dec. 5, 1984.
    Anderson & Anderson and Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellants.
    Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appel-lees.
   RIVKIND, LEONARD, Associate Judge.

Defendants appeal an adverse judgment in a slip and fall case. The defendants sought to read the depositions of Bobbie Todd and Cindy Fitzgerald contending that they were unavailable for trial. The trial court denied the motion finding that there was an insufficient showing of unavailability. We disagree. Therefore, we reverse and remand for a new trial.

Defense counsel represented that Bobbie Todd had moved to Texas a few years prior to trial and a letter to an address in Texas provided by her went unanswered. Additional efforts to locate the witness in Texas were fruitless. There is nothing in the record to indicate the witness returned to this area. Defendants established a predicate through the representations of their counsel. No objection was made by plaintiff as to the method employed. The sole objection was to the sufficiency of the representations to establish unavailability. See Fishman v. Liberty Associates, Inc., 196 So.2d 493 (Fla. 3d DCA 1967). We are of the opinion a sufficient showing was made to allow the use of the deposition and the trial court abused its discretion in excluding the same. We have read the deposition in the light of the issues presented to the jury to determine if the exclusion falls into the category of the “harmless error” rule. It does not. Bobbie Todd testified at her deposition that plaintiff, in her presence, told different versions as to how the accident happened which was highly probative on the issue of liability.

Since we find that exclusion of the Bobbie Todd deposition requires a reversal, we need not determine whether the refusal to allow the deposition of Cindy Fitzgerald was also an abuse of discretion, and if so, whether it was harmless or harmful error. Likewise, we need not address the remaining points on appeal.

Reversed and remanded for a new trial.

LETTS and HERSEY, JJ., concur.


text:
    Merl W. RICHMAN, Appellant, v. Geraldine RICHMAN, Appellee.
    No. 84-339.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1984.
    Rehearing Denied Nov. 2, 1984.
    Herbert A. Warren, Daniels & Hicks, Miami, for appellant.
    Fine, Jacobson, Block, England, Klein, Colan & Simon and Linda Ann Wells and Irwin J. Block, Miami, for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. Broudy v. Broudy, 423 So.2d 504 (Fla. 3d DCA 1982).


author: HERSEY, Judge.

text:
    CENVILL COMMUNITIES, INC., etc., et al., Appellants, v. Mary C. PATTI, etc., Appellee.
    No. 83-1914.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1984.
    Rehearing and Certification Denied Dec. 5, 1984.

      Hamilton, James, Merkle & Young, West Palm Beach, and Larry Klein, West Palm Beach, for appellants.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellee.
   HERSEY, Judge.

Following a jury verdict favorable to Century Village and Cenvill Communities, Inc., a new trial was granted because of a reference by Cenvill’s attorney during opening statement to a claim that had been made by Patti, plaintiff below and appellee here, against an individual not a party to this litigation.

Alfred Patti, while walking in Century Village, was struck and killed by a car driven by Clarence Hoffman. A suit against Hoffman was settled for $45,000. Mary C. Patti’s amended complaint for the wrongful death of her husband, against Century Village and Cenvill Communities, Inc., the owner of the roadway and adjacent property on which Mr. Patti was walking, alleged negligence in failing to provide safe pedestrian thoroughfares in and around the development site. Cenvill answered, denying the charges and asserting affirmative defenses, including the defense that the “accident ... and the damages resulting therefrom were caused solely by the negligence of a third party, one Clarence Hoffman, for which these defendants have no liability or responsibility.”

A pretrial motion m limine requested that Cenvill be ordered to refrain from making any reference to “any prior or subsequent claims, suits or settlements arising out of this collision.” At the hearing on this motion, counsel for Cenvill argued that the claim against Hoffman was material and relevant in light of the “intervening cause” defense, and that to exclude mention of the claim against him might lead the jury to Conclude that Hoffman was not at fault. Counsel for Patti maintained that any mention of a prior suit or settlement should be ruled inadmissible, to which the defense responded “the only question I would have is to the plaintiff herself, did she in fact make a claim against Mr. Hoffman in this accident.” The court decided that “before you do, why don’t you approach the bench and we will determine the way the question is worded.' The way the question is worded it might be offensive.” The court later stated that the defense may not make such an inquiry, stating “that, is my ruling at this time.” Shortly thereafter, during his opening statement, Cenvill’s counsel said “and indeed, we expect the evidence and testimony in this case will reflect Mrs. Patti made a claim against Mr. Hoffman as a result of this accident.”

Patti’s motion for mistrial, made at the conclusion of the opening statement, was denied. The trial judge found the statement “harmless,” deciding against instructing the jury on it (although no instruction had been requested). The court again admonished the defense not to make comments regarding a claim without first proffering it to the court.

The trial continued, with emphasis on the issue of whether Hoffman’s actions constituted an “intervening cause.” At its conclusion, resulting in a verdict favorable to defendants, Patti’s motion for new trial was granted on the basis of the statement in opening argument regarding a “claim.”

In its amended order granting new trial the lower court set forth the reasons for its action, stating:

1. The cumulative effect of defense counsel’s statements and arguments violated the spirit and interest [sic] of Section 768.041(3), Florida Statutes Annotated.
2. Defense counsel’s improper argument in reference to the previous defendant was highly prejudicial to the plaintiff and irrelevant to the issues in the case.
3. The cumulative effect of defense counsel’s arguments was so prejudicial to the plaintiff and misleading for the jury, that a new trial is the only adequate cure in light of justice.
4. That plaintiff made timely objections in light of judicial economy to preserve her right to a new trial.
5. That plaintiff filed a Motion in Li-mine to emphasize to defendants the importance of excluding such references of [sic] the claim against Clarence Hoffman, because of their prejudicial effect.
6. That Green v. Ricke, 438 So.2d 25 (Fla. 3d DCA 1983) is on all fours with the present case in that making the empty chair argument, following an improper reference to a prior claim, is absolute reversible error. In the Green case, like the instant case, there was also a Motion in Limine which the defense counsel violated.

Section 768.041, Florida Statutes (1983), states:

(1) A release or covenant not to sue as to one tortfeasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tortfeasor who may be liable for the same tort or death.
(2) At trial, if any defendant shows the court that the plaintiff, or any person lawfully on his behalf, has delivered a release or covenant not to sue to any person, firm, or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.
(3) The fact of such a release or covenant not to sue, or that any defendant has been dismissed by order of the court shall not be made known to the jury.

In City of Coral Gables v. Jordan, 186 So.2d 60 (Fla. 3d DCA 1966) the court noted that this provision implements public policy in favor of settlements and the avoidance of litigation. In Jordan, the plaintiff’s decedent was a passenger on a motorscooter involved in an accident which killed him and injured the driver. In an action against the city, plaintiff’s counsel asked the driver, a witness, whether he had settled claims against the city, to which the driver replied that he had. The court found that this constituted reversible error because “when the jury became aware that the city had settled the claims with [the driver] ... appellant’s defense that [the driver] was the sole cause of the accident evaporated.” Id. at 63. The court further explained, “it is a practical impossibility to eradicate from the jury’s minds the consideration that where there has been a payment there must have been liability.” Id. at 63 (citing Fenberg v. Rosenthal, 348 Ill.App. 510, 109 N.E.2d 402, 405 (1952)).

Had the instant comment regarding a “claim” having been made by Patti against Hoffman referred instead to a “settlement,” this case would clearly fall within the statute and the Jordan analysis. Cenvill questions, however, whether the mere mention that a “claim” was made necessarily infers a settlement, as appellees argue it does. Mention of a “claim” does not come within the specific prohibition against “revealing the fact of release or covenant, or that any defendant has been dismissed” referred to in Section 768.041(3). Appel-lees urge us to adopt the trial court’s reasoning that the statement is nevertheless inadmissible as it violates the “spirit” of the statute, in that where a claim has been made the inference arises that a settlement has been reached. Patti analogizes this to the violation found in Green v. Ed Ricke and Sons, Inc., 438 So.2d 25 (Fla. 3d DCA 1983), in which the court found cumulative errors resulting in reversal, stating “Dade County was not a party to the lawsuit because it had been released, and it was improper to make its absence a feature of the trial.” Id. at 27.

The point is well taken that, in Green, the statements appear innocuous when considered separately, but when taken together made the release “a feature of the trial.” We find the present case to be distinguishable, however, since the affirmative defense of an intervening cause justified reference to and made relevant the issue of Hoffman’s liability. Moreover, although plaintiffs counsel objected to references to the Patti “claim” against Hoffman during opening argument, no objection was made to use of that term during closing argument. The trial court found the initial reference so innocuous as to be harmless, not even requiring a curative instruction.

We recognize that a stronger showing is required to reverse an order allowing a new trial than to reverse an order denying a motion for new trial. Fordham v. Carriers Ins. Co., 370 So.2d 1197 (Fla. 4th DCA), cert. dismissed, 392 So.2d 1374 (Fla.1980). Nevertheless, we feel that burden has been met by appellants and that granting a new trial under these circumstances was an abuse of discretion.

We therefore reverse and remand for entry of a final judgment in accordance with the jury verdict.

REVERSED and REMANDED.

GLICKSTEIN and DELL, JJ., concur.


author: HENDRY, Judge.

text:
    LUDAL DEVELOPMENT COMPANY, Appellant, v. FARM STORES, INC., Appellee.
    No. 83-1727.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 1984.
    Rehearing Denied Dec. 3, 1984.
    Arky, Freed, Stearns, Watson & Greer and Eugene Stearns and Bradford Swing, Miami, for appellant.
    Hornsby & Whisenand and Ronald P. Weil, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

Appellant Ludal Development Company appeals from a ruling of the circuit court finding that a five year lease renewal option given to appellee Farm Stores, Inc. was valid and enforceable and setting a reasonable rent for the period at $2,000.00 per month. We affirm.

Appellee Farm Stores entered into a lease on the subject property in 1965. One of the lease provisions granted appellee the option of extending the lease for two successive five year terms at the expiration of the original twelve year lease. Appellee exercised the first five year option in 1977. The property was sold, subject to the lease in June, 1981. There was a dispute between appellee and the new owner, Mr. Arias, over the rental payment that month, the new owner declaring the lease to be in default and appellee thereafter paying the monthly rent into its attorney’s trust account. Arias filed suit for eviction, which was dismissed. He then filed a declaratory relief action seeking a determination that 1. appellee was in default because of the rent dispute and 2. the second lease extension option was unenforceable because the lease itself did not set a price term for the new period but provided instead for negotiation and agreement between the parties at the time of the extension, or, in the event that the parties could not agree on a new rental price, that appellee would be given the right of first refusal of any bona fide offer received by the landlord.

On June 21, 1982, Mr. Arias sold the property to appellant’s assignor, Mr. Alvarez. On May 7, 1982, prior to the actual closing on the property, Mr. Alvarez sent a letter to appellee offering to negotiate a lease extension. The letter stated, however, that Mr. Alvarez expected to receive $73,656.00 per year as rent and that this amount was firm and non-negotiable. Ap-pellee had been paying approximately $4,700.00 per year in rent as well as paying the property tax bill. On May 9, appellee sent a telegram and followed with a letter on May 10 to Mr. Arias notifying him that it was electing to exercise the lease extension option. The record reflects that appel-lee offered to pay $14,400.00 per year as rent during the second lease extension. Thereafter, the parties could not agree on a rent for the extension period, appellant refused to offer the property for rent so that appellee could exercise its right of first refusal as provided for in the lease, and in August, 1982, appellant joined Mr. Arias as a plaintiff in the pending declaratory relief action.

Plaintiffs moved for summary judgment. After a hearing, the trial court decided that appellee was not in default on the June, 1981 rent payment, the extension option provision in the lease was valid and enforceable, and that the only remaining issue for trial was the amount of a reasonable rent. After a trial on that issue, the court decided that $2,000.00 per month was a reasonable rent for the five year extension period. In addition the court set the amounts owed as back rent by appellee to Mr. Arias and appellant. This appeal ensued.

The trial court correctly found that the lease extension provision was valid and enforceable because, while there was no price term specified in the extension provision itself, there was a method provided by which a rental price could be established in the event the parties could not reach an agreement. The right of first refusal provision would allow the parties to ascertain the fair rental value of the property and thereafter to make a decision based on the offers (if any) received by the landlord. With this requisite in the lease, the extension provision, which otherwise would be void for indefiniteness, becomes valid and enforceable. Edgewater Enterprises, Inc. v. Holler, 426 So.2d 980 (Fla. 5th DCA 1982); 3 G. Thompson, Real Property, § 1121 (J. Grimes 1980); 50 Am.Jur.2d, Landlord and Tenant, § 1165 (1970).

Furthermore, there is now the

“well-accepted concept that a lease is a contract and, as such, should be governed by the general contract principles of good faith and commercial reasonableness. One established contract principle is that a party’s good faith cooperation is an implied condition precedent to performance of a contract. Where that cooperation is unreasonably withheld, the recalcitrant party is estopped from availing [himself] of [his] own wrongdoing.”

Fernandez v. Vazquez, 397 So.2d 1171, 1173-74 (Fla. 3d DCA 1981). See also Ponce Development Co. v. Espino, 449 So.2d 317, 319 (Fla. 3d DCA 1984). Appellant, as its conduct demonstrates, has evidenced a strong disinclination to cooperate and negotiate in good faith as is required by the lease. We find that the trial court’s ruling may be supported on this basis also.

The other issues raised by appellant are without merit.

Appellee has cross-appealed the amount of rent set by the lower court and its denial of attorneys’ fees. We affirm both rulings.

Affirmed.

      . Within one month after purchasing the property, Mr. Arias executed a contract to sell the property to Mr. Alvarez. One provision of this contract required that appellee’s lease end before the day of closing or Mr. Alvarez could rescind the contract.

      . Mr. Arias did not join this appeal.

      . It is important to reiterate that the right of first refusal was to be the determining factor in the negotiating process, and, as such, was not an option offered to appellant to accept or reject as it saw fit. Compare Coastal Bay Club, Inc. v. Holbein, 231 So.2d 854 (Fla. 3d DCA 1970). Thus, when appellant refused to place the property on the rental market to determine what a third party would be willing to pay, it was in breach of the lease agreement.


author: ANSTEAD, Chief Judge. ANSTEAD, Chief Judge.

text:
    CITY OF FORT LAUDERDALE and Robert O. Cox, Appellants, v. BROWARD COUNTY and Jane Carroll, as Supervisor of Elections of Broward County, Florida, Appellees.
    No. 84-527.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1984.
    Rehearing Denied Dec. 5, 1984.
    Eugene L. Heinrich and Jeffrey A. O’Keefe of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauderdale, for appellants.
    Susan F. Delegal, Gen. Counsel, and Janet Lander, Asst. Gen. Counsel, Fort Laud-erdale, for appellee-Broward County.
    Leslie Stracher and Samuel S. Goren of Josias & Goren, Fort Lauderdale, for appel-lee-Carroll.
   ANSTEAD, Chief Judge.

This is an appeal from the denial of appellants’ petition seeking to prevent Bro-ward County from amending its charter to assume exclusive authority over certain aspects of handgun management within the entire county without conducting a citywide as well as county-wide referendum. We reverse.

Broward County proposed to submit to county voters a referendum issue authorizing an amendment to the county charter for handgun management. The proposal would authorize a county-wide ordinance binding on the county’s municipalities and providing for certain minimum standards for transfer of handguns and licensing of handgun dealers. The county concedes that without these amendments the municipalities would retain exclusive authority within their boundaries to regulate handguns. The City of Fort Lauderdale sought an injunction alleging that the resolution constituted an improper attempt to transfer a government power from the city to the county in violation of Article VIII, section 4 of the Florida Constitution. The city alleged that there had been no municipal approval of the transfer of power. The court entered final judgment denying the city’s request for either a preliminary or permanent injunction.

Article VIII, section 4 of the Florida Constitution provides:

Transfer of powers. — By law or by resolution of the governing bodies of each of the governments affected, any function or power of a county, municipality or special district may be transferred to or contracted to be performed by another county, municipality or special district, after approval by vote of the electors of the transferor and approval by vote of the electors of the transferee, or as otherwise provided by law.

This provision has been interpreted by the Florida Supreme Court to require a “resolution of the governing bodies of each of the governments affected.” Sarasota County v. Town of Longboat, 355 So.2d 1197 (Fla.1978). In that case the supreme court held that the attempted transfer of five governmental functions from the municipality to the county was ineffective since it was not initiated by law or resolution of the governing bodies of both of the governments affected as required by Article VIII, section 4.

The City of Fort Lauderdale contends that since only one of the governments affected by the proposed transfer of authority over handgun management has passed a resolution agreeing to the transfer, such transfer is in violation of Article VIII, section 4 as construed by the Florida Supreme Court in the Sarasota County case. The city points out that under the Charter amendment to section 8.04 and the new section 8.19 the city will no longer have the power to “opt out” of the Bro-ward County handgun management ordinance by enacting its own city ordinance, a power both sides concede would exist absent the amendments. In fact, the city notes that it has previously enacted an ordinance, No. C-83-16, in response to earlier county attempts to regulate handguns, which specifically provides that there should not be a transfer of the power to manage the sale of firearms:

That no requirements relating to the acquisition, transfer, or management of firearms shall be effective within the City of Fort Lauderdale other than those imposed by Federal or State law or by an ordinance of the City of Fort Lauderdale. Specifically, Broward County Ordinance No. 83-1 and the regulations established thereby, shall not apply within the City of Fort Lauderdale.

The city simply contends on appeal that Sarasota County is applicable to the resolution of this case.

Broward County responds by directing our attention to a series of judicial decisions rendered subsequent to the Sarasota County case which it claims establishes that an amendment to a county home rule charter which does not completely remove a governmental function from municipal jurisdiction is not a “transfer of power.” See Miami Dolphins v. Metro Dade County, 394 So.2d 981 (Fla.1981); City of Palm Beach Gardens v. Barnes, 390 So.2d 1188 (Fla.1980); and City of Ormond Beach v. County of Volusia, 383 So.2d 671 (Fla. 5th DCA 1980). Indeed, the trial court found that here the amendment allowed for a “complementary scheme of overlapping authority” and distinguished the Sarasota County case by saying it was “different in degree and in kind” from the instant ease. We cannot agree with the county and trial court’s analysis.

None of the cases cited by the county supports the position that a partial transfer of municipal authority in a given area is permissible without compliance with Article VIII, section 4. All of the cases cited are properly distinguishable from Sarasota County since they did not involve transfers of municipal power. The Ormond Beach case, for example, while dealing with a county-wide library system, left the municipality’s authority to have its own library system completely intact. The other cases are similarly distinguishable.

From our reading of the Sarasota County case we can find no exception that would permit the “partial” transfer of municipal authority on a given subject to the county without compliance with Article VIII, section 4. In fact, the contemplated transfers of authority involved in Sarasota County also were subject to provisions allowing for municipal activity in the same areas of authority so long as that activity did not conflict with the county’s regulations. We read Sarasota County to bar the transfer of any municipal powers to the county unless accomplished in accord with Article VIII, section 4. The county concedes that the purpose of the amendments is to restrict the city’s authority over handgun management and that without the proper enactment of the charter amendment, the City of Fort Lauderdale would retain the authority to regulate handgun usage notwithstanding any county ordinances to the contrary. With those concessions, we do not see how the charter amendment can be viewed as anything but a transfer of a municipal power to the county, a transfer that the Florida Supreme Court says cannot be effected without compliance with Article VIII, section 4. We are bound to follow the supreme court’s mandate.

Accordingly, because we find that the Florida Supreme Court has held that no transfer of a municipal authority to a county can be effected without compliance with Article VIII, section 4, we reverse the decision of the trial court and remand this cause for further appropriate proceedings consistent herewith.

DELL, J., and DWIGHT L. GEIGER, Associate Judge, concur.

OPINION ON REHEARING

ANSTEAD, Chief Judge.

We deny the county's petition for rehearing, but we concur in the suggestion that the issue we have resolved involving the authority of a charter county to preempt the authority of a municipality with respect to handgun regulation is one of great public importance throughout the state. Although the appellants object to the wording of the issue as suggested by the county, we believe the phrasing of the county’s suggested question is adequate, and such phrasing will not limit the supreme court’s consideration of the case. Accordingly, we certify the following question as one of great public importance:

WHETHER, IN A CHARTER COUNTY, A TRANSFER OF POWER OCCURS, THEREBY INVOKING THE PROVISIONS OF ARTICLE VIII, SECTION 4 OF THE CONSTITUTION OF THE STATE OF FLORIDA, WHERE, PURSUANT TO CHARTER AMENDMENT, A COUNTY ORDINANCE RELATING TO HANDGUN MANAGEMENT PREVAILS OVER A MUNICIPAL ORDINANCE RELATING TO THE SAME SUBJECT MATTER TO THE EXTENT OF ANY CONFLICT.

DELL, J., and DWIGHT L. GEIGER, Associate Judge, concur:

      . We emphasize from the outset that our review is limited to the constitutional challenge made to the procedures utilized by the county in seeking to vest itself with exclusive authority as to certain aspects of handgun control. Our decision in no way constitutes an approval or disapproval of the social policy sought to be effected by the county, a 'matter we note to be one of legislative prerogative.

      . The parties have supplemented the record with the election results which reflect that while the proposal passed in Broward County, a majority of the voters in Fort Lauderdale voted against the proposal.

      . The language sought to be added to the county charter consisted of the following underscored provisions:
      Section 8.04 CONFLICT OF COUNTY ORDINANCES WITH MUNICIPAL ORDINANCES.
      Notwithstanding any other provisions of this Charter, any county ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict regardless of whether such municipal ordinance was adopted or enacted before or after the County ordinance, provided that the county ordinance shall prevail over municipal ordinances whenever the County shall set minimum standards protecting the environment by prohibiting or regulating air or water pollution, or the destruction of the resources of the County belonging to the general public within the parameters set forth in Section 8.17 of this Charter. As set forth in this Charter, a county ordinance shall also prevail over a municipal ordinance in the area of land use planning. A County ordinance shall also prevail over a municipal ordinance in matters relating to Handgun Management within the parameters set forth in Section 8.19 of this Charter. In the event a county ordinance and a municipal ordinance shall cover the same subject matter without conflict, both the municipal ordinance and the county ordinance shall be effective, each being deemed supplemental, one to the other.
      The proposed new Section 8.19, provides:

        Section 8.19 HANDGUN MANAGEMENT.

        The County Commission may adopt a countywide ordinance relating to Handgun Management which may provide for law enforcement authorities to make criminal history checks for handgun purchasers prior to the delivery of a handgun not to exceed ten (10) days, exclusive of Saturdays, Sundays, and Holidays, and to provide standards for transfers of handguns and licensing of handgun dealers.


author: SHARP, Judge. DAUKSCH, Judge,

text:
    William H. ROBERTS and Thelma Roberts, his wife; Sandra A. McDonald and Orange Realty Masters, Inc.; and Ulay Thompson, Jr. and Florida International Realty, Inc., Appellants/Cross-Appellees, v. Ronald A. RIVERA and Carmen Rivera, his wife, Appellees/Cross-Appellants. William H. ROBERTS and Thelma Roberts, his wife, Appellants/ Cross-Appellees, v. Ronald A. RIVERA and Carmen Rivera, his wife, Appellees/Cross-Appellants.
    Nos. 83-614, 83-680, 83-687 and 83-1017.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Rehearings Denied Nov. 19, 1984.

      James A. Lowe, Orlando, for appellants William H. Roberts and Thelma Roberts.
    Michael A. Miller, of Walker, Buckmas-ter, Miller & Ketchan, Orlando, for appellants Sandra A. McDonald and Orange Realty Masters, Inc.
    James A. McNabb, Jr., Orlando, for appellants Ulay J. Thompson, Jr. and Florida International Realty, Inc.
    Scott J. Johnson and Robert D. Henry of Maguire, Voorhis & Wells, P.A., Orlando, for appellees Ronald A. Rivera and Carmen Rivera.
   SHARP, Judge.

We consolidate these two cases for purposes of disposing of them on appeal because they involve the same real estate transaction and parties. The appel-lees/cross-appellants (appellants), Ronald and Carmen Rivera, bought twenty-two acres of land from appellants/cross-appel-lees (appellees), William and Thelma Roberts.

In one case (Nos. 83-614, 83-680 and 83-687), the Riveras sued the Roberts for fraudulent misrepresentation and concealment, seeking damages and rescission. The Riveras also sued various real estate brokers and agents, including appellants Sandra McDonald and Ulay Thompson, for breach of fiduciary duties owed them in handling the transaction. In the other case (No. 83-1017), the Roberts sought to foreclose a purchase money mortgage executed by the Riveras on the property and the Riveras counterclaimed for damages and rescission based on fraud.

After jury verdicts in the first case finding that the Roberts were liable for fraudulent concealment and that the two real estate agents breached their duty of care owed the Riveras, the court entered a final judgment for $20,000.00 against all defendants jointly and severally. In the second case, based on principles of collateral estop-pel, the trial court entered a final summary judgment foreclosing the mortgage, but allowed the Riveras a set-off against the balance due on the mortgage in the amount of the judgment rendered in the first case.

We reverse the judgment and verdict against the Roberts in the first case because we find insufficient evidence of fraudulent concealment or misrepresentation on their part. Accordingly, the set-off in the mortgage foreclosure should also be reversed. However, as to the real estate agents, we find there was sufficient evidence to support the $20,000.00 judgment against them, and accordingly we affirm that part of the judgment in the first case.

The evidence pertinent to fraudulent concealment was as follows. In 1980, the Riv-eras became interested in purchasing property for investment purposes in the Orlando area. They saw Orange Realty Masters, Inc.’s sign on some property near Disney World. When they called that office they reached McDonald, who said that her main expertise was in finding developa-ble property. She, in turn, introduced Ronald Rivera to Thompson, a real estate broker. Rivera told them he wanted to buy land to develop and sell as residential lots for single family dwellings. Thompson and McDonald agreed to work with Rivera to locate and inspect such a property, handle rezoning if needed, and sell the lots. Thompson would receive $1,000.00 in advance, and both Thompson and McDonald would be paid commissions as the lots were resold. Eventually, they showed Rivera a twenty-two acre tract on Lake Mabel owned by Roberts. According to the listing, the best use of the property was for residential estates. The Roberts had owned the property for thirty-six years.

Rivera visited the Lake Mabel property three times before signing the contract to buy it. He first walked the property with McDonald, who warned him that the lake level was unusually low at that time due to a drought. On another occasion Rivera was told by Richard Brown, another developer and friend of Thompson’s, that the property had low spots and that it could not be developed economically.

Prior to signing the contract, Rivera asked McDonald and Thompson to check the property to see if its low elevation would be a hinderance to its development. He understood that they would have an engineer inspect the property and relied upon them to do so. They told him before closing an engineer had checked the property and found it suitable for development.

Rivera first met William Roberts on November 19, 1980, the day the contract was signed. The contract contained no warranties or representations concerning the elevation of the property, and at Roberts’ insistence a clause making the closing subject to a satisfactory soil test report was excised. Rivera testified Roberts told him there were “no problems” with the property, but he had only rarely been on the property during the thirty-six years he owned it, and neither he nor his wife were knowledgeable about farming or soil conditions. He admitted he knew Rivera would need to make some soil tests before building, but he was unaware of the nature or extent of such tests.

After the closing an engineer was retained to do soil boring tests. The results indicated the property would be extremely difficult to develop. Another witness with the Orange County Planning Department testified he did not think the Board of Commissioners would approve the property for residential development under any circumstances. If developable into ten two-acre lots, the tract would be worth $135,-000.00, but since it encompassed low muck-land, its value was approximately $47,-400.00. The Riveras paid $98,000.00 for the property.

It is clear that the Riveras did not receive the kind of real estate they intended to buy and that they paid more for it than it was worth. However, to hold the sellers liable for this unfortunate outcome, there must be proved some misrepresentation on the part of the sellers, or some concealment of facts known to them under circumstances impelling disclosure, i.e., a hidden defect, Sun Life Assurance Com pany v. Land Concepts, Inc., 435 So.2d 862 (Fla. 4th DCA 1983); Amazon v. Davidson, 390 So.2d 383 (Fla. 5th DCA 1980), and the buyers must show they reasonably relied on the sellers’ actions in such regard.

Here there was no proof the Roberts made any oral or written representation to the Riveras regarding the soil conditions. Nor did they conceal any facts they knew about the property which the Riveras did not already know or could easily have discovered. Further, there was no proof the Riveras relied upon anything the Roberts did or did not say. In fact the evidence is clear that regarding the soil condition the Riveras relied upon their two real estate agents and the supposedly satisfactory engineering report. Further, it would not have been reasonable for the Riveras to have relied upon the Roberts on this point since they were neither experts, nor had they made soil tests on the property. This is a case where the doctrine of caveat emptor should apply.

Accordingly, we reverse in part and affirm in part the judgments in Case Numbers 83-614, 83-680 and 83-687; and we reverse in part the judgment in Case Number 83-1017 and remand it for proceedings consistent with this opinion.

REVERSED IN PART, AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

COWART, J., concurs.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent.

These cases were pursued through the trial court by good lawyers presenting volumes of testimony and other evidence which often was quite conflicting. Everyone seemed to have been pointing fingers at everyone else.

The jury and the trial judge had a hard time resolving the conflicts, but they did so. I would not have the tough job they had. In fact, I do not. Nor does any appellate judge. The verdict and judgments were supported by evidence, albeit in conflict with other evidence. I would affirm their efforts. If I were to reverse then I would reverse as to all defendants.

The “comparative negligence” in an intentional tort case does present a novel issue, as the majority opinion mentions, but that must be left for another day. It serves no purpose, except a personal one, to expound upon interesting legal theories in dissenting opinions.

      . The verdict assessed compensatory damages at 150,000.00, but found the Riveras were 60% negligent in causing the damage. We do not reach the propriety of applying comparative negligence principles to a cause of action involving damages caused by fraud due to our resolution of this case on other grounds.


author: SHARP, Judge.

text:
    MUNSON & ASSOCIATES, INC., Bruce F. Beshara, and Reliance Insurance Company, Appellants, v. DOCTORS MERCY HOSPITAL, d/b/a Brookwood Community Hospital, Inc., Azhar Ali, M.D. and Richard J. Bagby, M.D., Appellees.
    No. 83-1697.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Rehearing Denied Nov. 14, 1984.

      Greg W. Sahlsten and Sutton G. Hilyard, Jr., of Pitts, Eubanks, Hannah, Hilyard & Marsee, P.A., Orlando, for appellants.
    Larry J. Townsend, of Maguire, Voorhis & Wells, P.A., Orlando, for appellee Bagby.
    Timothy I. Mize, of Parker, Johnson, Owen & McGuire, P.A., Orlando, for appel-lee Brookwood.
    Martin B. Unger and Paul H. Bowen, of Swann & Haddock, P.A., Orlando, for ap-pellee Ali.
   SHARP, Judge.

Munson & Associates, Inc. (Munson), Bruce Beshara, and Reliance Insurance Company (Reliance) appeal from a final summary judgment denying their claim for equitable subrogation against claimed subsequent tortfeasors who had exacerbated the plaintiffs (Coleman’s) injuries. Before trial involving all of these parties, the appellants entered into a release and settlement agreement with Coleman which expressly reserved Coleman’s rights to sue the remaining defendants. We affirm.

[I]t is further agreed that this General Release releases only BRUCE FERRIS BESHARA, MUNSON & ASSOCIATES, INC. and RELIANCE INSURANCE COMPANY, and that this General Release in no way releases any other parties to that certain aforesaid civil action filed in the 9th Judicial Circuit, in and for Orange County, Florida, bearing Case No. Cl 80-4756.

Coleman was injured in an automobile accident involving Beshara, the driver of the other vehicle. Munson owned the vehicle and Reliance was the liability insurer. Coleman sued these three parties initially, and later joined as defendants, Doctors Mercy Hospital, Inc., Azhar Ali, M.D., and Richard Bagby, M.D., for malpractice in treating his injuries following the accident, alleging that they greatly exacerbated his injuries.

Appellants cross-claimed against the health care providers on grounds of equitable subrogation. This doctrine has been recognized and sanctioned in Florida. In City of Lauderdale Lakes v. Underwriters at Lloyds, 373 So.2d 944 (Fla. 4th DCA 1979), the district court reversed a summary judgment for a doctor and certified this issue to the Florida Supreme Court. The Court affirmed stating:

The initial tortfeasor is subject to the total financial burden of the victim’s injuries, including those directly attributable to a doctor’s malpractice. But is it fair and equitable for such a tortfeasor to have to pay a sum greater than should have flowed from an accident without thereafter giving him some recourse against the agency exacerbating his liability? The instant situation compels some form of restitution to preclude a negligent doctor from escaping the responsibilities for his actions, especially as here where the original injuries were minor as compared with Ms. Bissonette's current disabilities. We agree with the district court that equity and good conscience should afford the initial tort-feasor a remedy.

Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702, 704 (Fla.1980).

In Underwriters, unlike this case, the first tortfeasor fully satisfied the liability of the health care provider to the injured plaintiff before filing suit against the provider on equitable subrogation grounds. The appellees argue that no right of equitable subrogation should arise on behalf of the initial tortfeasor until he has satisfied or paid the full extent of all of the plaintiffs injuries.

The traditional rules of subrogation support this view. It appears to be “[Generally the rule that where no other basis for equity jurisdiction is present, the right of subrogation does not exist until the entire obligation is discharged_” Ulery v. Asphalt Paving, Inc., 119 So.2d 432, 437 (Fla. 1st DCA 1960); Furlong v. Leybourne, 138 So.2d 352, 356 (Fla. 3d DCA 1962) (“the right to be subrogated to the rights and securities of the creditor extends to anyone paying any part of a debt of another provided the entire debt is paid.”); Cappucio, Subrogation in Florida, 21 U.Miami L.Rev. 240, 242 (1966) (“As a general rule, no degree of subrogation to the rights of the creditor will be granted until the creditor’s claim against the principal debtor has been paid in full.”); see also 73 Am.Jur.2d Subrogation § 30 (1974); 12 Fla.Jur.2d, Contribution, Indemnity and Subrogation § 22 (1979); 83 C.J.S. Subrogation § 10 (1953).

Strictly applied in a case similar to this one, those rules might defeat the right of an initial tortfeasor to obtain a remedy. Appellants argue that financially they could not pay for the full amount of Coleman’s injuries in this case, a considerable amount of which they claim resulted from inadequate medical care and diagnosis. We are aware that the supreme court in Underwriters was breaking new ground, and that the court did not say that the manner in which the claim for equitable subrogation arose in that case, two successive lawsuits, was the sole and only way in which the remedy of equitable subrogation could be achieved. See Greene v. Waters, 260 Wis. 40, 49 N.W.2d 919 (1951).

However, in this case the appellants settled only their own liability to Coleman and expressly left open Coleman’s right to pursue his claims against the health care providers. Subsequently, Coleman also settled with the doctors and the hospital. We think the general release in this case bars the appellants’ rights to pursue the remedy of equitable subrogation against the health care providers. Accordingly, the judgment appealed is

AFFIRMED.

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

      . The release provided:

      . Subrogation is a creature of equity, designed to do justice without regard to form, Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980); Allstate Insurance Company v. Metropolitan Dade County, 436 So.2d 976 (Fla. 3d DCA 1983); see generally 12 Fla.Jur.2d Contribution, Indemnity and Subrogation, §§ 17-19 (1979). The reason underlying the "cash-out" rule is protection of the creditor. As stated in Fowler v. Lee, 106 Fla. 712, 143 So. 613, 614 (1932):
      As a general rule, one cannot claim it [sub-rogation], unless the demand of the creditor is paid in full, as subrogation pro tanto may impair the interest of the creditor in respect to the unpaid balance. This rule is for the benefit of the original creditor, and does not apply where the balance of the debt has been satisfied by the principal or in some other manner. In such a case, subrogation arises in favor of the one who paid the part of the debt against the debtor, who received the benefit of such payment. (Citations omitted).

      . On November 1, 1983, Coleman settled with Bagby for $100,000.00 and with Brookwood Hospital for $25,000.00, and on November 8, 1983, he settled with Ali for $100,000.00. Subsequently, Coleman voluntarily dismissed his action against the appellees.


text:
    James Clarin GREGORY, Appellant, v. STATE of Florida, Appellee.
    No. 84-201.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 1984.
    Rehearing Denied Nov. 19, 1984.
    James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984).

DAUKSCH, ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    Matthew BROWN, Appellant, v. The STATE of Florida, Appellee.
    Nos. 83-2759, 84-623.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Rehearing Denied Dec. 3, 1984.
    Matthew Brown, in pro. per.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The trial court having corrected the original illegal sentence, Villery v, Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1980), and the court finding no merit in the other points raised, we affirm. Beech v. State, 436 So.2d 82 (Fla.1983); see Forbert v. State, 437 So.2d 1079 (Fla.1983).

Affirmed.


author: FERGUSON, Judge.

text:
    Robert T. SPICER, Petitioner, v. METROPOLITAN DADE COUNTY, POLITICAL SUBDIVISION OF the STATE OF FLORIDA, Respondent.
    No. 84-343.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Rehearing Denied Dec. 3, 1984.

      Zedeck & Kurlander, P.A. and Adam Kurlander, North Miami Beach, for petitioner.
    Robert A. Ginsburg, Co. Atty., and Stephen J. Keating, Asst. Co. Atty., for respondent.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

Petitioner seeks certiorari review of an affirmance by the appellate division of the circuit court of a final notice of termination. The court’s holding, essentially, was that a person in the Federal Witness Protection Program is unavailable as a matter of law, so that his statements are admissible under the statutory hearsay exception for former testimony and may be the sole basis for a final agency determination. Jurisdiction is invoked pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B).

Petitioner, Sergeant Robert Spicer, was employed as a police officer by Metro Dade Public Safety Department from 1966 through 1979. In May of 1979, he was among thirty-five individuals named in a federal indictment charging a RICO conspiracy. He was, at the time, suspended without pay from his duties as a police officer. After a trial in the district court in February of 1981, Spicer was acquitted. His request for reinstatement as an officer resulted in an eight-month internal review investigation. On September 1, 1981, Spi-cer was formally dismissed based on an alleged violation of Rule 2.200.55 of the Public Safety Department Manual, to wit: association with criminal element.

An administrative hearing was held on March 11,1982, pursuant to Section 2-47 of the Code of Metropolitan Dade County. The county’s evidence against petitioner was primarily documentary, consisting of the testimony given by petitioner at his criminal trial and the testimony given by a witness against petitioner at the criminal trial. Based on this evidence, the hearing examiner made findings of fact and recommended affirmance of Spicer’s termination. The Dade County Manager approved the recommendation and, from the final order of termination, Spicer appealed to the circuit court acting in its appellate capacity. The circuit court affirmed the termination in a per curiam opinion and denied rehearing. Spicer seeks certiorari review of the circuit court’s decision.

Petitioner contends that reversal is required because the record contains no competent or substantial evidence to support his dismissal. Specifically, he maintains that (1) the admission at the administrative hearing of testimony given by a witness against him in his federal criminal trial was error, since that testimony was hearsay which did not meet the requirements of the hearsay exception for former testimony in Section 90.804(2)(a), Florida Statutes (1983), and (2) the admission of petitioner’s own criminal trial testimony was error because that testimony also constituted hearsay. We dispose of the second point as being totally without merit.

Petitioner’s first point is meritorious and requires reversal of his termination. The testimony of a witness against him in the federal criminal trial did constitute hearsay under Section 90.801(l)(c), Florida Statutes (1983), since it was “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The dispositive question is whether such testimony was admissible in the administrative hearing.

Generally, hearsay evidence is admissible in administrative hearings. § 120.58(1)(a), Fla.Stat. (1983); Jones v. City of Hialeah, 294 So.2d 686 (Fla. 3d DCA 1974); see also De Groot v. Sheffield, 95 So.2d 912 (Fla.1957). But hearsay evidence alone is not sufficient to support a finding unless it would be admissible over objection in civil actions. § 120.58(l)(a), Fla.Stat. (1983); Byer v. Florida Real Estate Commission, 380 So.2d 511 (Fla. 3d DCA 1980); McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Further, as this court has previously noted:

[Wjhile in our state technical rules of evidence clearly do not apply in the same sense before administrative tribunals as they do in courts, we do not think the hearsay rule ought to be totally discarded, particularly in cases where individuals are threatened with serious deprivations, such as the loss of a job. Jones, 294 So.2d at 688.

If, on the other hand, hearsay evidence is corroborated by otherwise competent, substantial evidence, it may support an agency determination. See Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977). But cf Calhoun v. Bailar, 626 F.2d 145, 148-49 (9th Cir.1980), cert. denied, 452 U.S. 906, 101 S.Ct. 3033, 69 L.Ed.2d 407 (1981) (rejecting any per se rule that hearsay can never constitute substantial evidence; instead it is its probative value, reliability, and the fairness of its use that are determinative).

In this case, the critical hearsay evidence was not corroborated by any other substantial evidence. The county candidly conceded this at oral argument. The sole remaining inquiry is whether the evidence would be admissible over objection in a civil trial, or, stated otherwise, whether the evidence satisfies the requirements of the hearsay exception for former testimony in Section 90.804(2)(a), Florida Statutes (1983). We hold that it does not because the county failed to prove, as required, that the declar-ant was in fact unavailable.

Section 90.804, Florida Statutes (1983) provides a list of exceptions which permit use of hearsay testimony where the declarant is unavailable. Subsection (1) of that statute defines unavailability. The pertinent provision, Section 90.804(l)(e), permits a finding of unavailability where the declarant “[i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means.” The county did proffer to the examiner that its witness was unavailable because he was in the Federal Witness Protection Program at an indisclosable location in the United States. It did not, however, discharge its burden of establishing that it had taken any reasonable steps to procure the witness’s attendance. Compare McClain v. State, 411 So.2d 316 (Fla. 3d DCA 1982) (no steps taken to procure attendance) with Outlaw v. State, 269 So.2d 403 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 80 (Fla.1973) (a diligent, though unsuccessful, effort to procure attendance was sufficient to show unavailability). Although the cited cases are criminal cases, no authority has found that the standard for unavailability in civil actions is any less stringent, or that it should be.

The termination of petitioner from his employment was based solely on uncorroborated hearsay evidence, thus constituting a departure from the essential requirements of the law. See Combs v. State, 436 So.2d 93 (Fla.1983). If the county, on remand, satisfies its burden to prove unavailability of the witness, then the former testimony, if otherwise competent and substantial, could be the sole basis for approving the dismissal.

The petition for certiorari is therefore GRANTED, the decision of the circuit court is QUASHED, and the cause is REMANDED for a new hearing.


text:
    Charles NOTI, Appellant, v. Thomas HOLIDAY, a/k/a Tom Hobday, Appellee.
    No. 84-491.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Rehearing Denied Dee. 3, 1984.
    Bender, Bender & Chandler and James Chandler, III, Coral Gables, for appellant.
    Cohen, Brown, Reed, Ivans & Schwartz and Jay D. Schwartz, Miami, for appellee.
    Before BARKDULL, NESBITT and JORGENSON, JJ.
   PER CURIAM.

We reverse the trial court’s order of final judgment entering judgment for Holiday on Noti’s complaint for eviction and imposing a resulting trust on the property in favor of Holiday. Holiday failed to prove by clear and convincing evidence, Hiestand v. Geier, 396 So.2d 744 (Fla. 3d DCA), review denied, 407 So.2d 1103 (Fla. 1981), that Koch (Holiday’s alleged predecessor in interest) had bound himself to an absolute obligation to pay off the mortgage note executed by Noti and his wife, Socarras v. Yaque, 452 So.2d 992 (Fla. 3d DCA 1984).

The case is remanded to the trial court with directions to consider the merits of Holiday’s counterclaim seeking damages and the imposition of an equitable lien on the property in question for improvements he had made thereto, such claim having been dismissed as being moot in light of the judgment rendered by the trial court on the parties’ other claims.

Reversed and remanded with directions.


text:
    Bernard BALLARD, Appellant, v. The STATE of Florida, Appellee.
    No. 84-954.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 1984.
    Rehearing Denied Dec. 3, .1984.
    Saul T. Von Zamft and Samuel E. Smith, Coral Gables, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. See Mabry v. Johnson, — U.S. -, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). Cf. State v. Borrego, 445 So.2d 666 (Fla. 3d DCA 1984) (in the absence of detrimental reliance on State’s agreement not to prosecute, defendant not entitled to specifically enforce the agreement).