author: ORFINGER, Chief Judge.

text:
    James Michael SNOWDEN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1740.
    District Court of Appeal of Florida, Fifth District.
    March 29, 1984.

      James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.

      . Fla.Stat. § 782.04(4) defines third degree murder as:
      The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any other arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

   ORFINGER, Chief Judge.

A jury convicted James Michael Snowden of the crimes of third degree murder and grand theft. He appeals these convictions and separate sentences, contending that he should not have been separately sentenced for both crimes and that the court erred in sentencing him as an habitual felon.

Appellant was charged in separate counts with the first degree murder and armed robbery of Bruce Cundiff, Sr. The State presented the testimony of Henry Harrell, one of the participants in the robbery, who testified that with Snowden giving directions, Harrell, Snowden, and a third man, Snipes, drove to a dirt road near the Shrimp Boat Restaurant in Titusville where, according to Harrell, defendant Snowden and Snipes left Harrell with the car and headed across U.S. 1 toward the restaurant. Harrell drove the car around for a while and then, as he returned to the dirt road, he heard one gunshot and saw Snowden, followed by Snipes, running back to the car. According to Harrell, as soon as the two men were in the car, Snipes asked Snowden “Why?” and Snowden replied, “I didn’t want to shoot him; I didn’t mean to.” The three men then returned to Snowden’s house where they removed the money from the cash box, and then headed for Moore Haven, Florida. During the drive the men split the money between them.

On November 3, 1982, the jury returned its verdict, finding Snowden guilty of third degree murder on Count I and of grand theft on Count II. Following a sentencing hearing on December 9,1982, at which time the court found Snowden to be an habitual offender, the trial court adjudicated Snow-den guilty and sentenced him to thirty years on the third degree murder conviction and ten years on the grand theft conviction with credit for time served. The court retained jurisdiction over one-third of the appellant’s murder sentence, and ordered that the two jail terms be served consecutively. Snowden now appeals arguing improper prosecutorial comment, double jeopardy, and error in the enhancement of his sentence.

Improper Prosecutorial Comment

Appellant contends that the prosecutor improperly commented on the exercise of appellant’s right to remain silent and that such comment requires reversal. During the evidence phase of the trial, the State presented testimony that Snowden, while in a holding cell in the Titusville Police Department, overheard policemen talking about confiscating Snowden’s shoes as possible evidence. The tread on the shoes was similar to the tread on a footprint found near the Shrimp Boat Restaurant, according to one of the police officers. Soon thereafter, Snowden ripped off the soles of his tennis shoes and tried to flush them down the toilet in his cell. Snowden did not testify at trial.

During closing arguments, the prosecutor, in referring to the significance of these actions by the defendant, made the following statement:

Why would a Defendant destroy his shoes if he knew there was no way any shoe impressions would be there at the scene? The answer is clearly this: he knew that the police wanted those shoes. He immediately suspected there was some kind of shoe impression. He proceeded to destroy his shoes and to render their use as evidence on one of them almost impossible, and on the second he was intercepted before he completed. And then at one of the Court appearances he told Bo Harrell, “I did it, flushed them down the toilet, tore the soles off because they had a shoe print.” He thought they had a shoe print.
Ron Sinclair [police officer] says, yes, these match, correspond, but there are no distinctive characteristics.
But it’s the reaction of the Defendant which cries in loud corroboration that Bo Harrell is telling the truth, that Margaret Wilkerson is telling the truth; because, ladies and gentlemen, there is no circumstance from which you can infer that the Defendant did this for any other reason than to conceal his guilt of the homicide of Bruce Taylor Cundiff. There is no inference.
I challenge the Defendant to present a reasonable inference to explain why the Defendant tore these soles off and flushed them down the commode at Ti-tusville Police Department. [Emphasis supplied].

Defense counsel objected on the grounds that the last mentioned sentence was a comment on the accused’s failure to testify. He then moved to strike the comments and asked for a curative instruction as well as a mistrial. The court denied these motions, finding that the prosecutor was merely commenting on the evidence and not on the defendant’s failure to testify.

On appeal, however, appellant contends that the comments were not on the evidence but on the lack of testimony from the defendant to explain the reasons for his actions. The State responds that the prosecuting attorney was arguing an inference to be taken from an undisputed fact and was simply challenging the attorney for the defense to present a better one. Therefore, because the statement was merely an interpretation of the evidence, the State contends that the comment was not one on the defendant’s failure to testify.

It is a well-established rule that comments on the accused’s failure to testify violate the fifth amendment privilege against self-incrimination, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and that such a comment requires a reversal of the conviction without regard to the harmless error rule. Harris v. State, 438 So.2d 787 (Fla.1983); David v. State, 369 So.2d 943 (Fla.1979); Trafficante v. State, 92 So.2d 811 (Fla. 1957). See also Fla.R.Crim.P. 3.250. Specifically, any comment which is “fairly susceptible” of being interpreted by the jury as referring to a criminal defendant’s failure to testify constitutes reversible error without resort to the harmless error doctrine. David, Trafficante; Brazil v. State, 429 So.2d 1339 (Fla. 4th DCA 1983); Wil son v. State, 371 So.2d 126 (Fla. 1st DCA 1978).

When viewed in the context of the complete statement, the complained of language does not appear- to us to be a comment on defendant’s silence, but a comment on the evidence. A prosecutor may comment on the general lack of defense evidence, and such comment is not improper. White v. State, 377 So.2d 1149 (Fla. 1979); Helton v. State, 424 So.2d 137 (Fla. 1st DCA 1982), pet. rev. denied, 433 So.2d 519 (Fla.1983); also see, Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980). Here, the State had opening and closing final arguments to the jury, and the comment complained of was made during the State’s opening portion of the final argument. We view the language as an invitation to the defense lawyer to come up with a better explanation than was provided by the prosecutor, a situation similar to that found in Duncan v. Stynchcombe, 704 F.2d 1213 (11th Cir.1983), where the court said:

It appears more likely that the prosecutor was attempting to point out to the jury the lack of evidence concerning Duncan’s whereabouts at the time of the robbery. A comment on the failure of the defense, as opposed to that of the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of defendant’s fifth amendment privilege.

Id. at 1215-1216. We discern no error in the denial of defendant’s motion for mistrial.

Double Jeopardy

Snowden contends that the trial court erred in convicting and sentencing him for grand theft in addition to the conviction of third degree murder, defined by statute as a felony murder. His contention appears to be well taken.

With regard to the murder charge, the jury was instructed on the various degrees of homicide from first degree premeditated murder to third degree murder and manslaughter. Then, at the request of defense counsel and with the consent of the prosecutor, the court instructed the jury that grand theft was a crime which could be considered as an underlying felony of third degree murder and the jury, clearly finding the evidence insufficient to support a higher degree murder conviction, returned a verdict of guilty on third degree murder and grand theft. The question then is whether the defendant may legally be convicted of third degree (felony) murder and also be convicted of the underlying felony on which the murder conviction is based.

In State v. Pinder, 375 So.2d 836 (Fla. 1979) the supreme court held that the State could prosecute a first degree murder charge on the theory of felony murder although premeditated murder was charged, but where the only evidence to sustain the murder conviction was furnished by proof that the killing occurred as the result of one of the felonies enumerated in Section 782.04(1), Florida Statutes, the defendant could not be convicted and punished for both the felony murder and the underlying felony. Id. at 839. In State v. Hegstrom, 401 So.2d 1343 (Fla.1981), the supreme court concluded that conviction on both the underlying felony and the felony murder on which it was based was constitutionally permissible, but that section 775.021(4), Florida Statutes proscribed punishment for the underlying felony offense, and to that extent receded from Pinder.

State v. Monroe, 406 So.2d 1115 (Fla. 1981) followed Hegstrom and approved conviction of both robbery with a firearm and possession of a firearm while committing a felony (which the district court of appeal had held to be a lesser included offense) but vacated the sentence for the possession count. In Faison v. State, 426 So.2d 963 (Fla.1983) the court approved a conviction for both burglary with an assault and sexual battery (the underlying assault in the burglary charge), relying on Hegstrom and reversing the district court of appeal which had vacated the sexual battery conviction. No sentence had been imposed on the sexual battery count by the trial court.

The questions raised by Hegstrom and its progeny appear to have been dispelled by the decision in Bell v. State, 437 So.2d 1057 (Fla.1983). In Bell, the supreme court said:

The district court’s reliance on State v. Hegstrom in affirming the convictions below is misplaced. We did not intend to hold in Hegstrom that the double jeopardy clause of amendment 5, United States Constitution, or article I, section 9, Florida Constitution, permits a defendant to be convicted of both a greater and a lesser included offense provided no sentence is imposed for the lesser included offense. As we have stated before, the explicit exclusion of lesser included offenses in section 775.021(4) makes clear that the legislature does not intend separate convictions and punishments for two or more statutorily defined offenses when in fact only one crime has been committed. Id. at 1267. We recede from State v. Monroe, 406 So.2d 1115 (Fla. 1981), to the extent it is in conflict with this conclusion.

The court then stated unequivocally that once it has been established that an offense, whether charged or not, and whether in single or separate proceedings, is a lesser included offense of a greater offense also charged, then the double jeopardy clause proscribes multiple convictions and sentences for both the greater and lesser included offenses.

It seems to us that in receding from Monroe which relied on Hegstrom, the court also receded from Hegstrom to the extent that the latter approved a conviction for both felony murder and the underlying felony on which the murder conviction is based. We would say this with more assurance were it not for the opinion in Hawkins v. State, 436 So.2d 44 (Fla.1983). In Hawkins, the supreme court affirmed the conviction of robbery as the underlying felony in the felony murder conviction, but vacated the sentence. We believe that Bell is the binding opinion of the supreme court on the double jeopardy issue here. Without discussing the apparent inconsistency between Hawkins and Bell, our sister court has recently relied on Bell as requiring the conclusion that a defendant cannot be convicted or sentenced for the robbery and also for the first degree felony murder for which the robbery is the underlying felony. State v. Harris, 439 So.2d 265 (Fla. 2d DCA 1983). We agree that this result is mandated by Bell.

Since the jury was instructed that grand theft would be an underlying basis for third degree murder (and grand theft was charged only in this context), clearly the jury convicted appellant of grand theft as the underlying felony of third degree murder, and on the basis of Bell, both the conviction and sentence for grand theft must be set aside.

Enhanced Sentence

Prior to sentencing on December 9, 1982, the State filed a notice of intent to seek an enhanced penalty, pursuant to Florida Statute section 775.084 (1981), relying on a prior felony conviction for aggravated battery on February 23, 1982. Appellant contends that the prior conviction relied on by the State is not a “qualifying offense” such as will activate the statute here.

The statute authorizes an enhanced penalty when, among other requirements, “the felony for which defendant is to be sentenced [the murder here] was committed within five years of the date of the conviction of the last prior felony ... [the earlier aggravated battery conviction].” The murder for which appellant was convicted here occurred on December 19, 1981. He was then convicted for aggravated battery on February 23, 1982, having committed that crime prior to committing the subject murder. Appellant contends that because he had not previously been convicted of the aggravated battery when the murder was committed, the aggravated battery is not a qualifying offense under the statute. The State contends that the language of the statute is ambivalent and that the phrase “within five years” can be read to apply to convictions even after the occurrence of the offense for which a defendant is being sentenced.

With some subsequent amendments, section 775.084 was adopted in 1971. Prior to that time provisions for enhancing penalties were found in section 775.09, Florida Statutes (1969) (second conviction of felony) and section 775.10 (fourth conviction of felony). The supreme court construed these statutes in Joyner v. State, 158 Fla. 806, 30 So.2d 304 (Fla.1947), holding that:

To constitute a second or a fourth conviction within the purview of sec. 775.09 or sec. 775.10, supra, the information or indictment must allege and the evidence must show that the offense charged in each information subsequent to the first was committed and the conviction therefore was had after the date of the then last preceding conviction. In other words, the second conviction must be alleged and proved to have been for a crime committed after the first conviction. The third conviction must be alleged and proved to have been for a crime committed after both the first and second convictions, and the fourth conviction must be alleged and proved to have been for a crime committed after each of the preceding three convictions.

Explaining its interpretation, the court said:

There are two reasons why this is true: (1) because the purpose of the statute is to protect society from habitual criminals who persist in the commission of crime after having been theretofore convicted and punished for crimes previously committed, it is contemplated that an opportunity for reformation is to be given after each conviction. (2) This construction is implicit in the statutes.

See also Guilford v. Mayo, 93 So.2d 110 (Fla.1957).

A similar result was reached under section 404.15, Florida Statutes (1971) (since repealed) which provided for enhanced penalties for second or subsequent convictions of the Drug Abuse Law. In Karz v. State, 279 So.2d 383 (Fla. 2d DCA 1973) the court said:

This rule has generally been applied to subsequent offender statutes such as Florida Statutes §§ 775.09 and 775.10, F.S.A., which, although now repealed, provided that any person who “after having been convicted of a felony” commits another felony is punishable as a second or subsequent offender. Cases dealing with those statutes required that in order to punish a person as a subsequent offender it was necessary that the offenses after the primary one were in each case committed subsequent to conviction for the preceding offense. Perry v. Mayo, Fla.1954 [Fla.] 72 So.2d 382.
The reason for enhancing a sentence for a subsequent offense is to serve as a warning to first offenders and to afford them an opportunity to reform. The reformatory object of the statute, namely to deter future crime, would be frustrated if the offender were given no opportunity to reform. See cases collected in the annotation at 24 A.L.R.2d 1247 and in State v. Johnson, 1969, 109 N.J.Super. 69, 262 A.2d 238.

Id. at 384.

Although dealing with that portion of the subject statute providing for enhanced sentencing based on multiple misdemeanor convictions, the third district has reached the same result under the current statute in Shead v. State, 367 So.2d 264 (Fla. 3d DCA 1979). Although the current statute differs somewhat in its operative language from the earlier version, we see nothing in it that expresses a purpose other than was earlier noted by the supreme court in Joyner, viz., to protect society from habitual criminals who persist in the commission of crime after having been theretofore convicted and to permit an opportunity for reform after each conviction. As did the court in Joyner, we hold therefore that for a felony conviction to serve as a qualifying offense for purposes of enhanced sentencing under 775.084, the prior felony conviction must have occurred before (and within five years of) the commission of the crime for which a defendant is being sentenced. Because this was not the case here, the court erred in enhancing Snowden’s sentence.

The trial court relied heavily on Eutsey v. State, 383 So.2d 219 (Fla.1980) as support for the enhanced sentence. The court in Eutsey upheld the constitutionality of the statute and approved the enhanced sentence in that case, but the facts there reveal that Eutsey committed a felony on January 23, 1976 for which he was convicted and was sent to prison. Within “nineteen or twenty days after Eutsey’s release from prison on the first felony for which he was sentenced” Eutsey committed the offense for which he was convicted on July 20, 1978, and for which the enhanced penalty was imposed. Eutsey does not alter the rule of law previously announced by the supreme court.

The appellant’s other points have been considered and are found to be without merit. The conviction for third degree murder is affirmed. The conviction for grand theft is reversed and the sentence for that offense is set aside. The enhanced sentence for the third degree murder conviction is set aside and the case is remanded to the trial court for resentencing on that count.

AFFIRMED in part, REVERSED in part and REMANDED.

COBB and COWART, JJ., concur.

      . The apparent inconsistency between Hawkins and Bell might be explained by concluding that the court does not consider the underlying felony in a felony murder conviction to be a lesser included offense of the felony murder. This conclusion does not hold up, however, when we consider that in Hegstrom, the basis for holding that a sentence was improper for the underlying felony was the proscription in Section 775.-021(4), Florida Statutes which precludes a separate sentence for a lesser included offense. The Hegstrom court clearly held that where a felony murder is predicated on the proof that it was committed during the course of a robbery, the underlying robbery is a lesser included offense of the felony murder. Since Bell clearly holds that multiple convictions (as well as multiple sentences) on lesser included offenses violate the double jeopardy clause, we cannot conclude other than that the court has receded from Hegstrom as well as from Monroe. Thus the apparent inconsistency between Hawkins and Bell can only be explained by assuming that Hawkins was issued in error (see Garcia v. State, 444 So.2d 969, Fla. 5th DCA 1983), or that because Bell was not final when Hawkins was issued, Bell is actually the latest pronouncement of the supreme court and that it recedes from Hawkins as well. See also, Portee v. State, 447 So.2d 219 (Fla.1984).
      We note that in Squires v. State, 450 So.2d 208 (Fla.1984), the Supreme Court, in dictum, has indicated that Hegstrom and its sentencing restriction in felony murder situations is still viable. We hope the court will clear up the confusion as to whether Hegstrom or Bell controls in this situation. The Hegstrom court held that ”[b]ecause the crime of first-degree murder committed during the course of a robbery requires, by definition, proof of the predicate robbery, the latter is necessarily an offense included within the former” [Emphasis supplied]. For the reasons previously explained, we believe Bell to be the binding precedent.

      . In pertinent part, section 775.084 provides:
      (1) As used in this act:
      (a) "Habitual felony offender” means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
      1.The defendant has:
      a. Previously been convicted of a felony in this state;
      b. Twice previously been convicted of a misdemeanor of the first degree in this state or of another qualified offense for which the defendant was convicted after the defendant’s 18th birthday;
      2. The felony for which the defendant is to be sentenced was committed within 5 years of the date of the conviction of the last prior felony, misdemeanor, or other qualified offense of which he was convicted, or within 5 years of the defendant’s release, on parole or otherwise, from a prison sentence or other commitment imposed as a result of a prior conviction for a felony or other qualified offense, whichever is later;
      3. The defendant has not received a pardon for any felony or other qualified offense that is necessary for the operation of this section; and
      4. A conviction of a felony, misdemeanor, or other qualified offense necessary to the operation of this section has not been set aside in any post-conviction proceeding, [emphasis supplied].


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Karl S. PEARSON, Appellant, v. Michael J. HARRIS, d/b/a Ace Tower Company, Western World Insurance Company, Inc., Rustcraft Broadcasting Company, a wholly owned subsidiary of Rustcraft Greeting Cards, Inc., d/b/a WJKS-TV and Gencom, Inc., formerly known as Aztec Communications, Inc., Appellees.
    No. AT-68.
    District Court of Appeal of Florida, First District.
    March 30, 1984.

      V. James Facciolo, Searcy & Facciolo, Jacksonville, for appellant.
    Luke G. Galant, Dawson, Galant, Sulik, Levy & Ellis, Jacksonville, for appellee-Western World Ins. Co., Inc.
    Karen K. Cole, Boyd, Jenerette, Staas, Joos, Williams & Felton, Jacksonville, for appellee-Rust Craft Broadcasting Co.
    Peter J. Kellogg, Grissett, Humphries & Kellogg, Jacksonville, for appellee-Gencom, Inc.
   SMITH, Judge.

Pearson appeals from a summary judgment in his persona] injury action finding no liability on the part of defendants-appel-lees, Western World Insurance Co., Inc. (Western), Rustcraft Broadcasting Company (Rustcraft), and Gencom, Inc. (Gen-com). We concur in the trial court’s finding of no liability on the part of Western, which provided liability insurance coverage to Pearson’s employer, Michael J. Harris, d/b/a Ace Tower Company (Ace Tower), because the doctrines of election of remedies and estoppel bar Pearson’s claim that he was not an “employee,” within the exclusionary provisions of Western’s liability insurance policy issued to Ace Tower. As to Rustcraft and Gencom, we approve the trial court’s determination of no liability because there are no facts upon which a jury could determine that either was guilty of negligence which caused or contributed to Pearson’s injuries; and further, the theory of liability relied upon by Pearson, under which non-negligent parties employing an independent contractor for the performance of inherently dangerous operations are liable to persons injured thereby, does not apply to Rustcraft or Gencom with respect to injuries of an employee (Pearson) of the independent contractor (Ace Tower). Affirmed.

Rustcraft owned the WJKS television tower in Jacksonville. It leased space on the tower to Gencom, which provided beeper service to customers in the area. Gen-com contracted with Ace Tower, owned by Michael J. Harris, to install an antenna on the tower. Appellant Pearson was engaged by Ace Tower to perform work connected with the installation. While working on the tower at about the 600 foot level, Pearson heard what sounded to him like a gunshot and a bullet whizzing past. In response, he returned to the ladder in the middle of the tower structure, and while making his descent down the ladder fell several hundred feet within the tower before his fall was broken by part of the metal framework. He sued Ace Tower, Rustcraft, and Gencom, and joined Ace Tower’s liability insurer, Western, alleging that coverage was provided by Western’s policy for Ace Tower’s negligent conduct resulting in his injuries. In his complaint, Pearson alleged that because of the inherently dangerous nature of the work he was performing on the tower, Rustcraft owed a non-delegable. duty to provide him with a safe place to work, also the duty to insure that such work was not performed on its tower without the use of appropriate safety devices, and further, that Rustcraft had the duty to warn of hidden or non-apparent dangers, such as the danger from sniper fire. He specifically alleged that Rustcraft breached its duties by failing to warn of the danger of sniper fire directed at persons working on the tower, claiming that Rustcraft knew of the existence of that danger or the “substantial risk” of sniper fire. He further alleged that Rustcraft breached its duties by failing to provide on the tower a means of connecting safety devices such as harnesses or nets.

As to Gencom, Pearson alleged that as a contractor of the ultra-hazardous work to be performed by him, it had a non-delega-ble duty to require its contractor to undertake the work in a reasonably safe manner, and to advise its contractor of any hidden or unusual non-apparent dangers on the job. He alleged that Gencom also was negligent in failing to advise him of the danger of sniper fire.

Turning first to the merits of Pearson’s claim against Western, it is first noted that Western supported its motion for summary judgment by proving that prior to the filing of his negligence complaint, Pearson had filed a claim for workers’ compensation benefits against Ace Tower in which Pearson claimed that he occupied the status of “employee” so as to be entitled to the benefits of the workers’ compensation law. A final hearing was held and an order was entered, prior to the filing of the negligence complaint, in which the deputy commissioner determined that Pearson was an employee, and that Ace Tower was liable for the payment of workers’ compensation benefits as his employer. By stipulation of the parties, the employee-employer relationship was the sole issue presented to and ruled upon by the deputy commissioner, with all claims for specific benefits and entitlements being reserved for further determination. Ace Tower took the position in the workers’ compensation proceeding, as it did in the circuit court suit, that Pearson was, indeed, an independent contractor, not an employee of Ace Tower.

We have carefully examined the evidence of record tending to show that Pearson was an employee of Ace Tower. We find there was ample support for the deputy commissioner’s finding that Pearson was an employee, but the purpose of our review here is to determine whether summary judgment could properly be entered on this issue in the circuit court litigation. In brief, there is no evidence that Pearson had done work for any employer other than Ace Tower near the time of injury. It was his normal custom to report directly to the home of Mr. Harris, Ace Tower’s owner, on a daily basis, or on occasion to have Mr. Harris pick him up at his (Pearson’s) residence. Pearson’s work assignments were dictated by the needs of Ace Tower from day to day. In short, the evidence strongly indicates that Pearson was told where to go, what to do, and how to do it. Most of the tools used by Pearson in the performance of his duties were provided by Ace Tower, and he did not have the authority to hire additional labor. Pearson was paid at the conclusion of each job, but his pay was not pre-negotiated on a job-by-job basis. Although Pearson argues that there is a difference between an “employee” under the workers’ compensation law, Section 440.02(2)(a), Florida Statutes, and an “employee” for the purposes of determining coverage under a liability insurance policy, we conclude that any discussion of such differences as might be pointed out with respect to specific categories of employment would be largely academic. In general, the criteria for determining whether the relationship is one of employer-employee, or contractee-indepen-dent contractor, under both the workers’ compensation law and under the common law, are virtually identical. See, Florida Industrial Commission v. Schoenberg, 117 So.2d 538 (Fla.1960). As we said in Brewer v. Cueto, 379 So.2d 1322, 1323 (Fla. 1st DCA 1980), cert. den. 388 So.2d 1111 (Fla. 1980), whether or not an individual is an independent contractor “ultimately turns on the power to control.” See, also, Orcutt v. Environmental Technologists, 432 So.2d 701 (Fla. 1st DCA 1983). This court noted recently, in Saudi Arabian Airlines Corporation v. Dunn, 438 So.2d 116 (Fla. 1st DCA 1983), that at common law, the four elements considered in making a determination of whether a master and servant relationship exists are (1) the selection and engagement of the servant, (2) the payment of wages, (3) the power of dismissal, and (4) the control of the servant’s conduct, and further, “... the essential element being the right of control and the right to direct the manner in which the work shall be done, the payment of wages being the least important factor.” Id. at 120. Applying these criteria, we think there is little question that Ace Tower maintained full control of Pearson’s work, although Mr. Harris’ testimony to the contrary cannot be completely disregarded. Furthermore, the payment of wages criterion is not fully satisfied under the facts of the case before us, since Pearson was paid on a per-job basis, and his employer did not deduct withholding and social security taxes. A fact-finding tribunal could easily conclude, nevertheless, that any ambiguity with respect to the method of compensation would not be sufficient to overcome the existence of an employer-employee relationship based on the other, and more significant, criteria. In an abundance of caution, however, and in order to preserve the principle, reiterated in Saudi Arabian Airlines, supra (438 So.2d at 119), that the existence of an employer-employee relationship is normally one for the jury, we decline to hold that the record evidence compels a finding, as a matter of law, that Pearson was acting as an employee when injured. Instead, we base our decision on other grounds urged by Western.

We agree with Western’s contention that by maintaining the workers’ compensation proceeding and obtaining an adjudication that he was an employee of Ace Tower, Pearson made an election of remedies that Western may assert as a bar to Pearson’s present civil action in which he now alleges that he was not an employee, but an independent contractor. Although in Williams v. Duggan, 153 So.2d 726 (Fla.1963), the court determined that no election had been made where the plaintiff first filed a workers’ compensation claim, then withdrew it and filed a common law action, language in the opinion indicates a different result where, as here, the workers’ compensation litigation has resulted in the rendition of an order on the merits advantageous,- or potentially so, to the claimant. More recently, this court in Hume v. Thomason, 440 So.2d 441 (Fla. 1st DCA 1983), held that the doctrine of election of remedies was properly applied to bar a workers’ compensation claim where the claimant had previously maintained a civil action in circuit court against his putative employer. Of particular significance here is the court’s resolution of the issue of whether the civil action had “matured” to the point necessary to bar the worker’s compensation claim, since Hume had actually suffered an adverse judgment in the civil action. The court said:

It is held that an election is matured ‘when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,’ and ‘[i]t is generally conceded that to be conclusive it must be efficacious to some extent.’ Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Williams v. Duggan, 153 So.2d 726 (Fla.1963). In the instant case, the summary judgment rendered in the circuit court was obviously efficacious from the Thomasons’ point of view, as it worked to their advantage and to Hume’s disadvantage. Thus, Hume’s election matured when judgment was entered finally adjudicating the rights of the parties. He was precluded thereafter from pursuing his worker’s compensation claim.

See also, Matthews v. G.S.P. Corp., 354 So.2d 1243, 1244 (Fla. 1st DCA 1978), in which we held that the provisions of the act “may not be accepted and then repudiated by the employee.” We conclude that since Western’s liability to Pearson, to the extent of the coverage provided by the insurance policy insuring Ace Tower, is coextensive with the negligence liability of Ace Tower in the present action, Western should be accorded the benefit of any defenses available to its insured, Ace Tower.

We are of the further opinion that ordinary principles of estoppel would bar Pearson from maintaining a position in his civil action which is inconsistent with the position he successfully maintained in his workers’ compensation proceeding. See, Grauer v. Occidental Life Insurance Company of California, 363 So.2d 583 (Fla. 1st DCA 1978), cert. den. 372 So.2d 468 (Fla.1979); Federated Mutual Implement and Hardware Insurance Company v. Griffin, 237 So.2d 38 (Fla. 1st DCA 1970). Having determined that the present suit against Western is barred under the principles above stated, we find it unnecessary to rule upon and therefore do not discuss Western’s contention that the action is also barred under principles of res judicata, or estoppel by judgment.

That Rustcraft and Gencom were also entitled to summary judgment of no liability is clear. There is not a scintilla of evidence of any prior incident involving sniper fire around the tower, therefore no basis for the allegation that Rustcraft and Gencom knew or should of known of such danger, and should have warned Pearson. Further, there is no evidence that the tower was defective or unsafe in any respect, nor that Pearson’s injury was causally related to any breach of duty on the part of Rustcraft or Gencom. The uneontrovered testimony of Mr. Harris, owner of Ace Tower, was that the ladder within the tower was equipped with a safety cable and a “deadman’s switch,” a device which, when properly attached to a climber’s safety belt, will catch and lock onto the cable and prevent a fall in event the climber loses his footing or hold on the ladder. It is uncon-troverted that Pearson was not attached to the safety cable or any part of the tower structure at the time of his fall, although he was wearing a safety belt, equipped with a safety line.

The record further reflects uncontrovert-ed evidence that neither Rustcraft nor Gen-com exercised any supervision or control over the work being performed by the independent contractor, Ace Tower, and that neither assisted in the attachment of the antenna or gave directions as to the manner and means whereby the antenna was to be hoisted into position and bolted to the tower framework. Gencom furnished only the tower, its mounting brackets, and the coaxial cable (which was already on the tower), and designated the elevation at which the antenna was to be attached. Ace Tower was solely responsible for affixing the antenna, using its own personnel, methods and equipment, and for positioning the antenna so as to provide maximum performance.

Certain principles of law governing the relationships of owners, contractors, independent contractors and their employees control the disposition of Pearson’s complaints against Rustcraft and Gencom. First, there is no common law duty on the part of an owner to provide a safe place to work for employees of contractors engaged in the performance of work on the owner’s premises. Goodman v. Kendall Gate-Invest. Co., Inc., 395 So.2d 240 (Fla. 3rd DCA 1981); Cuyahoga Wrecking Corp. v. Mastres, 368 So.2d 380 (Fla. 3rd DCA 1979); Van Ness v. Independent Construction Company, 392 So.2d 1017 (Fla. 5th DCA 1981). Secondly, contrary to the position urged by Pearson here, the rule is that the owner is not vicariously liable under the inherently dangerous operations or hazardous work doctrine for injuries suffered by employees of an independent contractor in the performance of such work. Florida Power and Light Co. v. Price, 170 So.2d 293 (Fla.1964); Horton v. Gulf Power Company, 401 So.2d 1384 (Fla. 1st DCA 1981); Christy v. Florida Power Corporation, 232 So.2d 744 (Fla. 1st DCA 1970). See, also, Scofi v. McKeon Construction Company, 666 F.2d 170 (5th Cir.1982), applying Florida law. In our view, the above principles apply alike to Rustcraft and Gen-com. Rustcraft, the owner of the tower, did not participate in any manner in the contract for or placement of the antenna. Gencom, a lessee contracting with an independent contractor for the placement of an antenna on tower space leased from Rust-craft, occupied a position similar to that of an owner, and had no active participation in the performance of the work of the independent contractor.

We recognize that under the inherently dangerous doctrine the rule of non-liability of the non-participating owner does not apply with respect to injuries to third parties, Florida Power and Light v. Price, supra, and Scofi v. McKeon Construction Company, supra, nor does it apply with respect to injuries to an employee of an independent contractor where the owner is also the general contractor, or otherwise actively engages in or supervises the work. Atlantic Coast Development Corporation v. Napoleon Steel, 385 So.2d 676 (Fla. 3rd DCA 1980); General Portland Land Development v. Stevens, 395 So.2d 1296 (Fla. 4th DCA 1981). See, also, the discussion in Padilla v. Gulf Power Company, 401 So.2d 1375, 1378-1379 (Fla. 1st DCA 1981), pointing out (in explanation of the Florida Power case, supra) that the rule of non-liability of an owner/contractee further presupposes the absence of a showing of negligence or omission of duty or proper care on the part of the owner/contractee. No such showing against either Rustcraft or Gen-com has been made here. As pointed out above, there was no defect in or absence of safety devices on the tower, and no showing of any prior instance of sniper fire of which Rustcraft or Gencom should have been aware, and of which Ace Tower or Pearson should have been warned. Additionally, Pearson’s attempt to predicate liability upon allegations concerning the failure of Rustcraft or Gencom to provide him with other safety devices (lifelines, grab-dogs, harnesses, and safety nets) and to require him to use them (see footnotes 2 and 3) were properly stricken by the trial court. There is no duty, under any of the authorities cited by Pearson or discovered in our research, upon parties in the position of Rustcraft or Gencom to provide these additional safety devices or to require their use by persons working for an independent contractor. Had they undertaken to provide such assistance, and did so negligently, causing Pearson’s injuries, then liability could attach. See, Padillo, supra.

For the above reasons, the final judgment appealed from is AFFIRMED.

WIGGINTON and NIMMONS, JJ., concur.

      . Michael J. Harris, d/b/a Ace Tower Company, is not a party to this appeal.

      . He also complained of Rustcraft’s failure to require the use of safety devices such as lifelines, harnesses, or grab-dogs which would effectively prevent or reduce the risk of injury from falling, and by failing to require the use of a safety net, but these provisions were stricken by order of the trial court.

      . As was the case with respect to the count against Rustcraft, Pearson alleged that Gencom also was negligent in failing to require the use of safety devices or safety nets, that it failed to provide a safety net, and failed to give reasonable instructions to Pearson regarding the use of a safety line while moving or working within the tower. These latter allegations were also stricken by order of the trial court.


author: JORGENSON, Judge.

text:
    Clarence H. JOHNSON and Dana Johnson, his wife, Appellants/Cross-Appellees, v. Morton DAVIS and Esther Davis, his wife, Appellees/Cross-Appellants.
    No. 83-1574.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Rehearing Denied May 9, 1984.

      Smith & Mandler and Mitchell W. Man-dler, Miami, for appellants/cross-appellees.
    Stanley M. Newmark, Miami, Joseph G. Abromovitz, Boston, Mass., for appel-lees/cross-appellants.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   JORGENSON, Judge.

The Johnsons, the- defendants in an action to rescind a real estate sales contract, appeal a final judgment that returned to the Davises $26,000 of the Davises’ $31,000 deposit. The Davises cross-appeal the trial court’s award of $5,000 of the deposit to the Johnsons and the trial court’s failure to award the Davises costs and fees. For the reasons which follow we affirm the trial court’s return of the majority of the deposit to the Davises but reverse those portions of the final judgment which awarded $5,000 of the deposit to the Johnsons and failed to award the Davises costs and fees. Accordingly, we remand with directions to return to the Davises the balance of their deposit, with interest, and to award them costs and fees. The remainder of the issues on appeal are without merit and the remainder of the trial court’s final judgment is, therefore, affirmed.

I

In early May of 1982, “a season of calm weather,” the Davises first saw and within two days entered into a contract to buy for $810,000 the Johnsons’ home, which at the time was three years old. The form contract, which was provided by the Johnsons’ broker, required a $5,000 deposit payment, an additional $26,000 deposit payment within five days and a closing by June 21, 1982. The contract provided for payment to the “prevailing party” of all costs and reasonable fees in any contract litigation and:

F. Roof Inspection: Prior to closing at Buyer’s expense, Buyer shall have the right to obtain a written report from a licensed roofer stating that the roof is in a watertight condition. In the event repairs are required either to correct leaks or to replace damage to facia [sic] or soffit, Seller shall pay for said repairs which shall be performed by a licensed roofing contractor.

Before the Davises made the additional $26,000 deposit payment, Mrs. Davis noticed some buckling and peeling plaster around the corner of a window frame in the family room and stains on the ceilings in the family room and kitchen of the home. Upon inquiring, Mrs. Davis was told by Mr. Johnson that the window had had a minor problem that had long since been corrected and that the stains were wallpaper glue and the result of ceiling beams being moved. There is disagreement among the parties as to whether Mr. Johnson also told Mrs. Davis at this time that there had never been any problems with the roof or ceilings. The Davises thereafter paid the remainder of their deposit and the John-sons vacated the home and moved to their new residence in Chicago. Several days later, following a heavy rain, Mrs. Davis entered the home and discovered water “gushing” in from around the window frame and from the ceiling of the family room and from the light fixtures, from around the glass doors and from above the stove in the kitchen. Domestics employed by the Johnsons’ broker were scurrying about trying to contain the water with rags and buckets. Two roofers hired by the Johnsons’ broker concluded that for under $1,000 they could “fix” certain leaks in the roof and by doing so make the roof “watertight.” Three roofers hired by the Davises found that the roof was inherently defective, that any repairs would be temporary as the roof was “slipping,” that only a new $15,000 roof could be “watertight” and that certain repairs to the walls, at an additional cost of $10,000, would be necessitated by damage attributable to the defective roof. Because the existing roof could not be made “watertight” the Davises demanded, on June 18, 1982, the return of their deposit. The Johnsons offered to “fix” the leaks in the existing roof.

The Davises filed a complaint alleging breach of contract and fraud and misrepresentation and seeking rescission of the contract and the return of their deposit. The Johnsons counterclaimed seeking the deposit as liquidated damages. The Davises argued, during the course of the proceedings, that paragraph F of the contract required the roof to be “watertight” but provided for only “minor” repairs and that, therefore, because the roof required other than “minor” repairs their only contractual remedy was rescission of the contract and the return of their deposit. During direct examination by the Davises’ counsel, Mr. Johnson denied having told Mrs. Davis, on the day that she had inquired about the ceiling stains and peeling plaster, that there had never been any problems with the roof or ceilings. He claimed, rather, admitting that a leak had developed in the roof over the kitchen two years earlier, when the house was less than a year old, to have told Mrs. Davis of the roof problem, for the first time, on the day of her inquiry. Without findings of fact, the trial court entered its final judgment returning to the Davises $26,000 of their deposit plus interest, awarding the Johnsons $5,000 of the Davises’ deposit plus interest, and awarding neither party costs or fees.

II

Because the trial court included no findings of fact in its order, we can but speculate as to the trial courts reasoning in returning only $26,000 of their deposit to the Davises. A trial court’s reasoning, of coürse, is not the controlling factor in determining whether an appellate court will affirm the trial court’s decision, the fundamental question in an appeal being whether the result reached by the trial court is correct, for whatever reason. E.g., In re Estate of Yohn, 238 So.2d 290 (Fla.1970). But in finding, under the only theory the trial court could logically have used- in returning only part of their deposit to the Davises, that the trial court was correct in returning that portion of the deposit, we must conclude that the trial court erred in not returning to the Davises the remainder of their deposit.

It is apparent from the record that the trial court did not accept the Davises’ characterization of paragraph F of the contract, for if the trial court had found there to be a breach of paragraph F, the trial court would have ordered the return of the Da-vises’ entire deposit: there is no logical way to distinguish, under the breach of contract theory, the two deposit payments. Because of our holding we need not reach the issue of whether the trial court erred in this respect.

Under the fraud theory, however, the trial court could logically have made just such a distinction. The evidence before the trial court supports a finding that after receiving the $5,000 deposit payment the Johnsons affirmatively represented to the Davises that there were no problems with the roof, and thereafter received the additional $26,000 deposit payment. The trial court’s ruling, insofar as it ordered the return of the $26,000 deposit payment, is therefore supported by the supreme court’s decision in Besett v. Basnett, 389 So.2d 995 (Fla.1980), wherein it was held “that a recipient may rely on the truth of a representation, even though its falsity could have been ascertained had he made an investigation, unless he knows the representation to be false or its falsity is obvious to him,” id. at 998. Accordingly, upon that authority, we affirm the trial court’s return of their $26,000 deposit payment to the Davises. See Gold v. Wolkowitz, 430 So.2d 556 (Fla. 3d DCA), review denied mem., 437 So.2d 677 (Fla.1983).

In contradistinction to the circumstances of the $26,000 deposit payment, there was no evidence before the trial court that before receiving the $5,000 deposit payment the Johnsons affirmatively represented to the Davises that the roof was without defect. The trial court, therefore, logically could have found that this key factual distinction necessitated a conclusion that although the $26,000 deposit payment was induced by an affirmative misrepresentation, and should therefore be returned, the $5,000 deposit payment was not, and therefore need not be returned. On the record before us, we can find no other way logically to explain the nature of the trial court’s final judgment.

Indeed, there is authority for such a distinction. In Banks v. Salina, 413 So.2d 851 (Fla. 4th DCA 1982), a case involving the sale of a used home with a leaky roof and defective swimming pool, the district court summarily reversed that part of the trial court’s order that awarded the buyers damages for repairs not provided for in the contract of sale. The reversal was founded upon the district court’s determination that, although the sellers had sold a defective home to the buyers without disclosing the presence of defects, of which the sellers evidently were aware, “[i]n Florida, there is no duty to disclose when parties are dealing at arms length,” id. at 852. In support of this proposition the court in Banks cited Ramel v. Chasebrook Construction Co., 135 So.2d 876 (Fla. 2d DCA 1961), wherein there is dictum that “[i]n the absence of a fiduciary relationship, mere nondisclosure of all material facts in an arm’s length transaction is ordinarily not actionable misrepresentation unless some artifice or trick has been employed to prevent the represen-tee from making further independent inquiry,” id. at 882.

However, having acknowledged this authority, by which we are not bound and which we feel represents an offensive view of societal duties and fails to embody the ideals which the law should always strive to reflect, we choose not to follow it.

Ill

A

In Florida, the elements necessary to establish the existence of a fraudulent misrepresentation are that (1) the defendant knew of the falsity of the representation, (2) the plaintiff was meant to rely upon the misrepresentation, (3) the plaintiff in fact relied upon the misrepresentation and (4) the plaintiff was thereby damaged. See American International Land Corp. v. Hanna, 323 So.2d 567 (Fla.1975); Mizell v. Upchurch, 46 Fla. 443, 35 So. 9 (1903).

It has commonly been stated, particularly in older cases, that the misrepresentation must be affirmative and that a passive failure to disclose facts of which the defendant was aware will not support an action premised upon fraud and deceit. See W. Prosser, Law of Torts § 106 (4th ed. 1971). “This rule of course reflected the dubious business ethics of the bargaining transactions with which deceit was at first concerned, together with a touch of the old tort notion that there can be no liability for nonfeasance, or merely doing nothing [citation omitted],” id.; and it has been said that this rule may properly be applied where the undisclosed fact is patent or the plaintiff has equal opportunity of obtaining information which he may be expected to make use of or where the defendant has no reason to think that the plaintiff is acting under any misapprehension, see id.

In Kitchen v. Long, 67 Fla. 72, 64 So. 429 (1914), however, the supreme court observed that

“[s]ome cases carry the doctrine of caveat emptor so far as to hold that the seller is under no obligation to communicate the existence of defects in the thing sold not discoverable by examination .... But it is generally held in this country that the intentional non-disclosure of a latent defect by the seller, when he knows that it is unknown to the buyer, is fraudulent ...,”

Id. at 75, 64 So. at 430 (quoting 35 Cyclopedia of Law & Procedure [Sales] 69 (1910)), and “ ‘if he intentionally withholds information of the existence of defects, which are not equally within the ken of the buyer ... it is undoubtedly a fraud,’ ” 67 Fla. at 76, 64 So. at 430 (quoting C. Tiedeman, Sales § 167 (18-)).

Still, there exist

occasional modern cases which have held that so long as one adversary does not actively mislead another, he is perfectly free to take advantage, no matter how unfair, of ignorance; and that the owner of a dwelling which he knows to be riddled with termites can unload it with impunity upon a buyer unaware, and go on his way rejoicing [citation omitted],

W. Prosser, supra. Thus, in Swinton v. Whitinsville Savings Bank, 311 Mass. 677, 42 N.E.2d 808 (1942), the court acknowledged that the buyer of a termite-infested home possessed “a certain appeal to the moral sense,” id. at 679, 42 N.E.2d at 809, but concluded that, it having been asserted by the plaintiff that the seller knew of the termites and was under a duty to disclose their presence, the law had not yet “reached the point of imposing upon the frailties of human nature a standard so idealistic,” id. at 678-79, 42 N.E.2d at 808-09.

Because these “occasional” cases “are surely singularly unappetizing cases,” W. Prosser, supra, courts have developed a number of exceptions to the “human frailties” approach, see id., and

[b]eyond this ... a rather amorphous tendency ... to find a duty of disclosure in cases where the defendant has special knowledge, or means of knowledge, not open to the plaintiff, and is aware that the plaintiff is acting under a misapprehension as to facts which would be of importance to him, and would probably affect his decision,

id.

B

This tendency has crystallized in a recent line of cases addressing the sale of used homes which have latent material defects of which the seller is aware but which he has not disclosed to the buyer.

In Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68 (1974), the buyers, after entering into a contract of sale for a six-year-old home which they had previously seen only while it was illuminated, visited the home at night and, turning on the lights, were “ ‘astonished to see roaches literally running in all directions, up the walls, drapes, etc.,’ ” id. at 447, 317 A.2d at 70. As here, the buyers sought rescission and the return of their deposit. See id. Although the contract provided that the buyers had inspected the property and were fully satisfied with its physical condition, that no representations had been made and that no responsibility for the condition of the property was assumed by the seller, id. at 447, 317 A.2d at 69-70, the New Jersey court rejected the seller’s caveat emptor argument, which had relied heavily on Swinton, see Weintraub, 64 N.J. at 456, 317 A.2d at 74, and reversed the trial court’s summary judgment award of the deposit to the seller, see id. at 457, 317 A.2d at 75. In doing so, the New Jersey court conducted an extensive survey of the modern trend toward abrogation of the caveat emptor doctrine and concluded that

[o]ur courts have come a long way since the days when the judicial emphasis was on formal rules and’ ancient precedents rather than on modern concepts of justice and fair dealing. While admittedly our law has progressed more slowly in the real property field than in other fields, there have been notable stirrings even there. [Citations omitted.] ... our law should be based on current notions of what is “right and just.” [Citation omitted,]

id. at 456, 317 A.2d at 74-75.

The court in Posner v. Davis, 76 Ill. App.3d 638, 32 Ill.Dec. 186, 395 N.E.2d 133 (1979), was confronted with facts similar to those before us. The buyers, who had taken possession of the home, sought damages from the sellers after discovering leaks in the roof and basement flooding and after the home suffered wall and ceiling damage which Was caused by the leaking roof. The sellers testified that the basement had always flooded after a heavy rain and that approximately one year to eighteen months prior to selling the home they had experienced roof leakage which had caused damage to the wall. Id. at 640-41, 32 Ill.Dec. at 188, 395 N.E.2d at 135.

Plaintiffs testified that the only statement either defendant made to them concerning any of the defects in the house took place on June 13, 1973, when Sander Davis allegedly told Harry Posner that defendants had never had a basement flooding problem. Defendants maintain that this alleged statement by Sander Davis, which at trial he denied having made, was plaintiffs’ only evidence of fraud and that plaintiffs could not have relied on it when they entered into a real estate sales contract on June 8, 1973, because plaintiffs concede the statement was not made until five days later.

Id. at 641, 32 Ill.Dec. at 188, 395 N.E.2d at 135. Observing that “the modern trend in the law regarding the sale of a home is away from strict adherence to the doctrine of caveat emptor,” id. at 644, 32 Ill.Dec. at 190, 395 N.E.2d at 137, and that the buyers had testified that they would not have bought the home if they had known about the flooding or leakage, the court concluded that “the evidence clearly shows defendants knew of and failed to disclose,” id., latent material defects. The court, therefore, affirmed the trial court’s finding of fraud on the part of the sellers, see id. at 644, 32 Ill.Dec. at 191, 395 N.E.2d at 138.

We agree with the reasoning and results in Weintraub, Posner and the cases cited in accordance below and hold that where the seller of a used home knows of facts materially affecting the value or desirability of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. Accord Reed v. King, 145 Cal.App.3d 261, 193 Cal.Rptr. 130 (1983) (home the site of multiple murder); Schnell v. Gustafson, 638 P.2d 850 (Colo.Ct.App.1981) (uranium tailings under home); Flakus v. Schug, 213 Neb. 491, 329 N.W.2d 859 (1983) (flooding in basement); Thacker v. Tyree, 297 S.E.2d 885 (W.Va. 1982) (cracked walls and foundation problems); see Lingsch v. Savage, 213 Cal. App.2d 729, 29 Cal.Rptr. 201 (1963) (stating rule as applicable to real property in general).

C

As we have stated, the only interpretation of the trial court’s final judgment logical in light of the record before us is that the $5,000 deposit payment was not returned to the Davises because it was not induced by an affirmative misrepresentation. It is obvious, however, because of Mr. Johnson’s admission during his testimony, that the Johnsons were aware of roof problems prior to entering into the contract of sale and receiving the $5,000 deposit payment. Although the testimony was certainly meant to dispel any belief that the Johnsons affirmatively misrepresented the condition of the home, the trial court apparently chose not to so interpret the facts. All that can now be made of Mr. Johnson’s testimony is that it is an unre-butted admission that the Johnsons knew of roof problems but did not disclose their existence to the Davises, if at all, until after receiving the $5,000 deposit payment. Mr. Johnson was, quite simply, if none too originally, hoisted with his own petard.

Affirmed in part, reversed in part and remanded with directions.

BASKIN, J., concurs in result only.

      . Although our holding is limited by the facts before us to the sellers of used homes, we realize that this duty is equally applicable to real estate brokers and to all forms of real property, new and used. See, e.g., Saporta v. Barbagelata, 220 Cal.App.2d 463, 33 Cal.Rptr. 661 (1963) (real estate broker); Lingsch (commercial property); Cohen v. Vivian, 141 Colo. 443, 349 P.2d 366 (1960) (builder); Griffith v. Byers Construction Co. of Kansas, 212 Kan. 65, 510 P.2d 198 (1973) (developer); Jenkins v. McCormick, 184 Kan. 842, 339 P.2d 8 (1959) (builder); Lynn v. Taylor, 7 Kan.App.2d 369, 642 P.2d 131 (1982) (real estate broker); Smith v. National Resort Communities, Inc., 585 S.W.2d 655 (Tex.1979) (developer).


author: ERVIN, Chief Judge.

text:
    FLORIDA AVIATION ACADEMY, DEWKAT AVIATION, INC., a Florida corporation, Dewkat, II, Inc., Dewey G. Oliver, and Katherine L. Oliver, Appellants, v. CHARTER AIR CENTER, INC., A Florida corporation, Appellee.
    No. AT-477.
    District Court of Appeal of Florida, First District.
    April 3, 1984.
    Rehearing Denied May 17, 1984.

      Milton H. Baxley, II, Gainesville, for appellants.
    Robert E. Roundtree, Jr. of Clayton, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellee.
   ERVIN, Chief Judge.

Appellants seek review of (1) the trial court’s order denying their motion to set aside a default and final judgment entered, it was alleged, as a result of the inadvertence and excusable neglect of their attorney, and (2) the trial court’s later order declining to rule on their motion to set aside the default and final judgment, caused by the fraud and misrepresentation of the opposing party. We reverse as to point one and decline to address point two.

Charter, the plaintiff below, filed an action on March 9, 1983, for money owed by appellants on goods and services delivered to them by Charter. On April 8, 1983, Charter filed a motion for an entry of default against appellants due to their failure to file or serve any pleading in the cause, resulting in the clerk’s entering a default on the same date against all appellants. A final hearing was held on May six, unattended by appellants, which resulted in the entry of a final judgment on May 10, 1983, awarding to Charter the principal amount of $88,844.75, plus interest of $3,388.36 and court costs of $106.50.

On May 24, 1983, appellants filed a motion seeking relief from the default and final judgment on grounds of the inadvertence or excusable neglect of their attorney pursuant to Florida Rule of Civil Procedure 1.540(b), and attached to it an affidavit, explaining that service of process had been made on appellants through the Union County Sheriffs office on March 11, 1983, and that appellant, Dewey Oliver, on March 14, delivered the summons and complaint to his attorney, who in turn gave the complaint to his secretary, who erroneously filed it without ascertaining the deadline for filing an answer to the complaint. Consequently, the attorney remained unaware that any responsive pleading was due until after Oliver advised him on May 11 that he had received a copy of the final judgment in favor of Charter, whereupon he immediately contacted Charter’s attorney to explain the secretarial error, as well as the fact that the firm had undergone a complete change of secretaries between March nine and May six. The motion further asserted that Charter’s attorney was aware, due to continuances arranged in other cases pending between the parties, that Oliver was scheduled for major surgery on May one. Also attached to the motion was a proposed answer which listed six affirmative defenses.

Charter’s attorney responded that appellants were provided with ample notice and opportunity to respond in that process was duly served through the sheriff’s office; default was thereafter entered as a result of appellants’ failure to furnish any answer, and that notice was reasonably provided to them of the May sixth final hearing, which they failed to attend.

As stated, the Rule 1.540(b) motion for relief from judgment caused by the inadvertence and excusable neglect of defense counsel was denied by the trial court. Appellants filed a second motion pursuant to Rule 1.540(b)(3) to set aside the default on grounds of fraud and misrepresentation, which the court declined to address, finding that the motiqn was barred by the doctrine of res judicata. We are of the view that the first motion and affidavit establish excusable neglect and therefore reverse the court’s denial of the motion for relief.

The trial court may properly grant a motion to vacate a default judgment if the movant establishes both a legal excuse for failure to comply with the Florida Rules of Civil Procedure and a meritorious defense. See L.B.T. Corporation v. Camacho, 429 So.2d 88 (Fla. 5th DCA 1983); Abray Construction Company, Inc. v. Star Swimming Pools, Inc., 426 So.2d 1046 (Fla. 2d DCA 1983). Some cases have imposed the additional requirement that the movant demonstrate due diligence in seeking relief from the default. Lacore v. Giralda Bakeshop, Inc., 407 So.2d 275 (Fla. 3d DCA 1982); County National Bank of North Miami Beach v. Sheridan, Inc., 403 So.2d 502 (Fla. 4th DCA 1981).

Although the trial court is vested with broad discretionary power in determining whether or not the facts constitute excusable neglect justifying the vacating of a default, the courts generally have adopted a policy of liberality toward the vacation of defaults in order to enable the parties to reach the merits of the cause. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Westinghouse Elevator Company v. DFS Construction Company, 438 So.2d 125 (Fla. 2d DCA 1983). Given these competing considerations, the appellate courts occupy a precarious position when reviewing rulings on motions to vacate default judgments:

In the first instance trial courts are advised that they should follow a policy of liberality in exercising their discretion to vacate default judgments. On the other hand appellate courts are advised that they must find a gross abuse of discretion by the trial court before disturbing its ruling on a motion to vacate.

County National Bank of North Miami Beach v. Sheridan, at 503 (e.s.); see e.g., North Shore Hospital, Inc. v. Barber.

. Notwithstanding the different appellate courts’ approaches to such issues, we prefer to follow that line of cases recognizing an avenue of relief is available to the defaulted party in those instances in which clerical or secretarial error has been demonstrated, and the presence of substantial prejudice to the opposing party is lacking. See e.g., Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983) (excusable neglect found upon a showing that responsive pleading was not timely filed because the summons and complaint had been inadvertently clipped to the back of another file and replaced in the file cabinet); County National Bank of North Miami Beach v. Sheridan (excusable neglect established on facts demonstrating that the attorney’s secretary failed to set up a file and calendar the garnishment proceeding for proper response because she was ill).

The error, existing in the case below, was caused by the inexperienced secretary’s failure to calendar the time for filing an answer to the complaint, contrary to established office policy and procedure. As such, it was an unintentional mistake which we hold, pursuant to the above authorities, constitutes excusable neglect. The proposed answer sufficiently sets forth meritorious defenses for the purpose of deciding whether a default judgment should be set aside. See North Shore Hospital, Inc. v. Barber. That Charter may ultimately be deprived of recovering the entire amount sought, for which judgment was entered, is not by itself substantial prejudice to Charter that precludes setting aside the default and final judgment on the grounds of inadvertence or excusable neglect, see, e.g., County National Bank of North Miami Beach v. Sheridan. Neither does the record reveal any other substantial prejudice that would result to Charter.

Rule 1.540(b) is a rule providing for equitable relief which should be liberally construed. We therefore conclude that under the circumstances presented, the trial court erred in failing to set aside the default and final judgment, entered as a result of inadvertence or excusable neglect, and we therefore reverse as to point one.

In view of our disposition of the first point, we need not address the issue raised in point two.

Reversed and remanded for further proceedings consistent with this opinion.

BOOTH and ZEHMER, JJ., concur.

      . Fla.R.Civ.P. 1.500(a) provides:
      Rule 1.500. Defaults and Final Judgments Thereon
      (a) By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.

      . Fla.R.Civ.P. 1.540(b) provides, in pertinent part:

        (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the’ court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or degree for fraud upon the court.

      . The following affirmative defenses were set forth in the proposed answer:
      (1) The complaint failed to state a cause of action against any of the defendants;
      (2) The alleged agreement violates the statute of frauds;
      (3) Debts allegedly owed incurred prior to March 9, 1979 are barred by the four-year statute of limitations on the collection of a debt;
      (4) All bills incurred by defendants have been paid and satisfied;
      (5) Some or all of the bills prepared by Charter are false and fraudulent for labor never performed by Charter; and
      (6) From May 29, 1981 until January 1, 1983, Charter has had complete control of defendant corporations Dewkat Aviation, Inc., and Dewkat II, Inc. by virtue of a May 29, 1981 stock option and proxy agreement.

      . See note 2, supra.


author: PER CURIAM.

text:
    Charles E. McGUIRE and Jayne W. McGuire, his wife, Appellants, v. Richard Karl GOETHEL and the Law Firm of Goethel and Garcia-Vidal, P.A., Appellees.
    No. 83-1583.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 23, 1984.
    Gars, Dixon & Shapiro and M. Jeffrey Speno, Miami, for appellants.
    Goethel and Garcia-Vidal, Coral Gables, for appellees.
    Before HENDRY, BARKDULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Knabb v. Mabry, 137 Fla. 530, 188 So. 586 (1939).


author: FERGUSON, Judge.

text:
    C.W.B. ENTERPRISES, INC., Appellant, v. K.A.T. EQUIPMENT CORPORATION, Appellee.
    No. 83-1653.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied May 18, 1984.
    Rosen, Rosen & Associates and Edward Paul Kreiling, Miramar, for appellant.
    Mark V. Silverio, Miami, for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant-bailee was not liable for the damages to bailed property caused by the negligence of a third party. See Buccaneer Line, Inc. v. Owens-Illinois Inter America Corp., 258 So.2d 826 (Fla. 1st DCA 1972). However, the bailee is liable for the salvage value of the damaged property based on its failure to return the bailed property even in its damaged condition. See D & D Associates, Inc. v. Sierra Plastics, Inc., 570 S.W.2d 205, 206 (Tex. Civ.App.1978) (every bailment contract contemplates return of the property bailed, either in the same or altered form); see also Empire Tool Company v. Wells, 227 So.2d 76 (Fla. 4th DCA 1969) (constructive bailee has duty to preserve, restore, and account for bailed property).

With respect to damages, the trial court believed that the property had at least some salvage value, and therefore rejected appellant’s uncorroborated testimony that the property was a total loss. Since no one could determine the extent of damage, or salvage value, because bailee failed to return the property, and further, since bailee made no showing that it was impossible or impractical to return the goods, assessment of damages equal to the market value of the property on the date of loss was appropriate. McDonald Air Conditioning, Inc. v. John Brown, Inc., 285 So.2d 697 (Fla. 4th DCA 1973) (proper measure of damages for loss of personal property is its market value on the date of loss and not its replacement value); see also John Hancock Mutual Life Insurance Co. v. Mark-A, Inc., 324 So.2d 674 (Fla. 2d DCA 1975) (where damages cannot be precisely and mathematically determined the trial judge has reasonable discretion in making award).

The bailed property, an eighteen-year old boat trailer, was valued at $8,000-$10,000. The award of $15,000, based on the replacement value of the trailer, was erroneous.

We affirm in part, reverse in part, and remand with instructions to enter judgment for $10,000.


author: WIGGINTON, Judge.

text:
    STATE of Florida, Appellant, v. Bryan KERWIN, Appellee.
    No. AT-90.
    District Court of Appeal of Florida, First District.
    April 11, 1984.
    Rehearing Denied May 17, 1984.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellant.
    Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellee.

      . Fla.R.Crim.P. 3.191(d)(3):
      Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this Rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered under (d)(2) and that extension has not expired, or (ii) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel, or (iii) the accused was unavailable for trial under section (e), or (iv) the demand referred to in section (c) is invalid. If the court finds that discharge is not appropriate for the reasons under (d)(3)(h), (iii), or (iv), the pending motion for discharge shall be denied provided however, trial shall be scheduled and commenced within 90 days of a written or recorded order of denial.

   ON MOTION FOR REHEARING

WIGGINTON, Judge.

Having considered the state’s motion for rehearing, we grant the motion and withdraw the opinion previously filed in this cause, substituting the following decision and opinion in lieu thereof.

The state appeals an order discharging Kerwin for the state’s violation of the speedy trial rule. We reverse.

Relevant to Kerwin’s case is rule 3.191(g), the provisions of which necessitated the state’s bringing Kerwin to trial within ninety days from September 13, 1982, the date on which the trial court received this Court’s mandate subsequent to an interlocutory appeal taken by the state. Durrance v. Rudd, 398 So.2d 1012 (Fla. 1st DCA 1981); Jenkins v. State, 446 So.2d 146 (Fla. 5th DCA 1983).

Trial was set for October 13, 1982, in Wakulla County. In the meantime, Ker-win’s whereabouts being unknown, defense counsel was instructed by the court on September 27 to advise Kerwin to turn himself in to Duval County authorities by the following Friday, as a warrant had been issued in that county for Kerwin’s arrest on related charges. Kerwin complied, but not until the morning of the trial. Although his counsel requested a continuance, the court denied the motion and ordered the case reset on the November docket.

By March, 1983, Kerwin had still not been brought to trial. On March 23, he moved for a discharge pursuant to rule 3.191(d)(3), on the basis that he had not been brought to trial within the ninety days provided by rule 3.191(g). The state argued that Kerwin had waived speedy trial by being both unavailable and unprepared for trial on October 13. The court granted Kerwin’s motion, without stating specifically its reason.

Clearly, March was outside the ninety days for speedy trial under rule 3.191(g), which period, as previously noted, began to run on September 13, 1982. However, we agree with the state that Kerwin waived his right to a speedy trial by being unavailable for trial on October 13. Despite the prosecutor’s repeated efforts to determine whether Kerwin was in the Duval County jail, both he and the trial court were unaware of Kerwin’s whereabouts until the day of the trial. See Singleton v. Gross, 436 So.2d 132 (Fla. 3d DCA 1983).

Consequently, the trial court’s order discharging Kerwin is REVERSED, and the cause REMANDED for further proceedings under Rule 3.191.

SMITH and SHIVERS, JJ.( concur.

      . Fla.R.Crim.P. 3.191(g):
      A person who is to be tried again or whose trial has been delayed by an appeal by the State or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial for the defendant, whichever is later in time.
      See also State v. Jenkins, 389 So.2d 971, 976 (Fla. 1980).

      . See State v. Chamblin, et al., 418 So.2d 1152 (Fla. 1st DCA 1982), wherein this Court reversed the trial court’s order granting a defense motion for disclosure of the identity of a confidential informant.

      .Fla.R.Crim.P. 3.191(e):
      A person is unavailable for trial if (1) the person or his counsel fails to attend a proceeding where their presence is required by these Rules, or (2) the person or his counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for herein is not entitled to be discharged. No presumption of non-availability attaches, but if the State objects to discharge and presents any evidence tending to show non-availability, the accused then must by competent proof establish availability during the term.


author: CAMPBELL, Judge.

text:
    REYNOLDS ALUMINUM AND MASONRY CONTRACTORS, INC. and Merle F. Rydesky, Appellants, v. Steven L. ALEXANDER, Appellee.
    No. 82-2411.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.
    Rehearing Denied May 9, 1984.
    John Patterson of Livingston, Patterson & Strickland, P.A., Sarasota, for appellants.
    Theodore E. Eastmoore of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellee.
   CAMPBELL, Judge.

Appellants, Reynolds Aluminum and Masonry Contractors, Inc. and Merle F. Ryde-sky, seek review of a final judgment against them on a counterclaim for acceleration of a promissory note and foreclosure under a security agreement held by appel-lee, Steven L. Alexander. We reverse.

Appellants raised five points on appeal. We find it necessary to discuss only two of the issues presented. First, was the January 1, 1981 monthly interest payment tendered within the grace period? Second, was there a sufficient basis for acceleration and foreclosure?

The relevant terms of the note held by appellee provided:

Interest only shall be payable monthly commencing April 1, 1980, and on the same day of each month thereafter to and including January 1,1981. On January 2, 1981, the sum of $9,892.91 shall be immediately due and payable.

The note also stated:

If any installment is not fully paid within 30 days after it is due, the entire principal sum and its accrued interest then remaining unpaid thereon shall immediately become due and payable without notice at the option of the holder.

Appellants consistently made the monthly interest payments after the first of the month, but before the end of the grace period. Appellee asked appellants to make the monthly interest payments on the first of each month and warned that failure to do so would be considered a violation of the terms of the note. Appellants continued to pay after the first of the month.

Appellants failed to pay the monthly interest payment due on January 1, 1981, although by check dated January 7, 1981, they did pay the additional lump sum of $9,892.91, which was due on January 2, 1981.

On February 2, 1981, appellee delivered a letter to appellants stating that the January 1, 1981 monthly interest payment had not been paid within the thirty-day grace period, and that appellee planned to accelerate the note. The same day appellants offered to pay, explaining that their failure to pay the January monthly interest was due to oversight. Appellee rejected their offer. Nonetheless, appellants mailed the payment to appellee. Appellee subsequently filed this action for acceleration of the note and foreclosure under the security agreement. Later, appellee returned appellants’ check for the January 1, 1981 monthly interest payment.

The trial court found appellants were in default and ordered acceleration and foreclosure based on the following findings of fact:

Many of the monthly payments due under the promissory note pertinent to this action from February 29, 1980 to January 1, 1981 were made after the due date, but during the grace period. This payment history of consistently slow payments created a basis for Defendant’s insecurity. In addition, the interest payment due on January 1, 1981 was not made on the due date or within the grace period.

As to the January 1, 1981 interest payment, appellants claim the last day of the grace period fell on Saturday, January 31, 1981, a nonbusiness day for both the parties. Appellants argue that under section 673.503(3), they had until the following business day, Monday, February 2, 1981 to tender payment. We agree. Section 673.-503(3), entitled “Time of Presentment” provides:

Where any presentment is due on a day which is not a full business day for either the person making presentment or the party to pay or accept, presentment is due on the next following day which is a full business day for both parties.

Appellee argues that the section deals with presentment of negotiable instruments for payment, and that it does not apply to appellants who were tendering payment on the note. Appellee claims, in effect, that section 673.503(3) operates in favor of the holder of the note, and not the obligor under the note.

Although section' 673.503 is somewhat unclear as to its application to tender of payment, we find it is only reasonable to apply the statutory extension for due dates falling on nonbusiness days to both parties. Further, we find that the legislative history of section 673.503 indicates that the benefit of the additional time should be extended to both the maker and holder of the note. (See sections 674.01 and 675.03, Florida Statutes (1965), which were effectually superseded by section 673.503.) For these reasons, we find that the payment tendered on Monday, February 2, 1981, was timely under section 673.503.

Without default on the January 1, 1981 interest payment, the only remaining basis for acceleration and foreclosure in the final judgment is the consistent slowness of the payments. We find that payments made within the contractually provided for grace period cannot be the basis for acceleration and foreclosure. See La Boutique of Beauty Academy, Inc. v. Meloy, 436 So.2d 396 (Fla. 2d DCA 1983); Campbell v. Werner, 232 So.2d 252 (Fla. 3d DCA 1970). We note that appellee alleges that there were many other reasons for the finding that he was insecure under the note; however, we can consider only those findings of fact made by the trial judge. Accordingly, we find that appellants were not in default and reverse the trial court’s order of acceleration of the note and foreclosure under the security agreement.

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