text:
    Conrad IACONO, Appellant, v. Elizabeth IACONO, Appellee.
    No. 83-643.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 10, 1984.
    Sidney L. Syna, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Allan Glaser, Miami Beach, for appellee.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Howland v. Strahan, 219 So.2d 472 (Fla. 3d DCA), cert. denied, 225 So.2d 919 (Fla.1969); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


source: Caselaw Access Project

author: DANIEL S. PEARSON, Judge.

license: Public Domain

text:
    Frances VAN HARREN, Appellant, v. Inaky MARKEVITCH and Serena Markevitch, Appellees.
    No. 83-1902.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 10, 1984.
    Spear and Hoffman and L. Joseph Hoffman, Miami, for appellant.
    Joe N. Unger, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

When these parties were first before us, we dismissed the Markevitches’ appeal in Case No. 83-549. We concluded that when on November 22, 1982, the trial court denied the Markevitches’ motion for rehearing, it lost jurisdiction to enter further orders on the motion for rehearing. Therefore, the Markevitches’ appeal taken after a second order denying rehearing entered on February 1, 1983, although timely as to that order, was untimely as to the order of November 22, 1982, and ineffective to invoke our jurisdiction. See Markevitch v. Van Harren, 429 So.2d 1255 (Fla. 3d DCA 1983). Thereafter, in July 1983, the trial court, pursuant to the Mar-kevitches’ motion for relief under Florida Rule of Civil Procedure 1.540(b), set aside its November 22, 1982, order denying rehearing. This action by the trial court had the effect of leaving the February 1, 1983, order as the only one disposing of the rehearing motion and, in turn, making the timely notice of appeal taken from that order effective to invoke our jurisdiction. Thus, upon the Markevitches’ request, we reinstated their appeal.

Van Harren now appeals from the trial court’s Rule 1.540(b) order, contending that the record does not support that the November 22, 1982, order denying rehearing was entered by mistake, error or inadvertence of the type contemplated by Rule 1.540(b). We agree with this contention, reverse the order under review, and by separate order dismiss the Markevitches’ appeal in Case No. 83-549.

The order under review states in pertinent part:

“The Court has considered the Plaintiffs’ Petition for Relief, the exhibits, including the Affidavits of former attorneys for the Plaintiffs and the court file, and concludes that the Order of November 22, 1982 was entered by mistake, error or inadvertence.
“The first Petition for Rehearing filed by attorney, Bruce Scheinberg, on behalf of the Plaintiffs on November 16, 1982, was denied by this Court’s Order of November 22,1982. When the Order of November 22, 1982 was entered, the Court was unaware of the fact that a second Petition for Rehearing had been filed by attorney, Nelan Sweet, on November 19, 1982. The Petition for Rehearing filed by attorney Sweet was not in the Court file at the time of the entry of the Order of November 22, 1982.
“Because of the wording and the particular method of setting forth the grounds in attorney Sweet’s Petition for Rehearing, the Court would not have entered the Order of November 22, 1982, had it been aware of Mr. Sweet’s Petition for Rehearing and had it read the contents thereof. As evidence of this is that when the Court became aware of the contents of the second Petition for Rehearing filed by attorney Sweet, it granted the second Petition to the extent set forth in the Court’s Order of February 1, 1983.
“Subsequent to the entry of the Order of November 22, 1982, the Court conducted a hearing on the second Petition for Rehearing on December 15, 1982, granting Petition for Rehearing, setting the matter for hearing on January 5, 1983, and at the same time cancelled the scheduled foreclosure sale of the property involved.
“The Court is aware of the fact that an appeal was attempted to be taken from the Final Judgment of Foreclosure by Plaintiffs who relied upon this Court’s action in connection with the denial of the Petition for Rehearing in part and the granting of same in part on February 1, 1983.
“The Court concludes that the Order of November 22, 1982 was entered in error and mistake, and has subsequently resulted in the denial to the Plaintiffs of the right of appeal from the Final Judgment of Mortgage Foreclosure.”

In essence, then, the trial court’s inadvertence or mistake is that it “would not have entered the Order of November 22, 1982, had it been aware of Mr. Sweet’s Petition for Rehearing and had it read the contents thereof.” Assuming, arguendo, that a trial court’s lack of awareness of a second and substantially different petition for rehearing could constitute a mistake or inadvertence entitling one to Rule 1.540(b) relief from an order denying rehearing, it is clear to us that the trial court’s lack of awareness of a second and substantially identical petition for rehearing could not. The initial petition for rehearing which the trial court denied set forth as grounds:

“That the decision in favor of the Defendant is contrary to the evidence and to law as indicated herein:
“A. The Court overlooked or failed to consider the fact that the Defendant sought equity when the Defendant did not do equity in failing to either make proper timely demand for insurance coverage from the Plaintiffs or reimbursement therefore from the Plaintiffs or to transfer the Defendant’s insurance policy on the subject hotel to the Plaintiffs upon Plaintiffs’ timely written demand to do so.
“B. The Court overlooked the fact or failed to consider the fact that documents introduced into evidence established duplicate coverage, one policy being held by the Plaintiffs and one .policy being held by the Defendants with the same insurance carrier on the same structure, during the period of time immediately preceding the cancellation of Plaintiffs’ insurance policy by its carrier. From said circumstances, the court could have and should have reasonably drawn the conclusion that before Defendant’s action in obtaining said duplicate policy with the same insurance company, Plaintiffs’ policy would not have been can-celled.
“C. As a result of the Final Judgment entered in this case, the Defendant is unjustly enriched by virtue of being permitted a double recovery to-wit: insurance proceeds and mortgage proceeds contrary to all principles of equity under the circumstances and facts at issue.
“D. That the evidence introduced by the Plaintiffs demonstrate an attempt by the Plaintiffs to be fair and equitable in their dealings with the Defendant, including but not limited to Plaintiffs’ continuing to pay the mortgage payments in excess of a year after the destruction of the property and that Florida law does not require or mandate foreclosure under these circumstances but permits the Court to deny foreclosure and reinstate the mortgage which would be the proper result in this situation.”

Sweet’s petition for rehearing, upon which the trial court looked favorably, simply says:

“1. That the judgment is contrary to the law.
“2. That the judgment is contrary to the facts.
“3. That the judgment is contrary to the law and facts.
“4. That the Court erred in denying the Plaintiff’s prayer for relief in that as a result that the insurance claim the Defendant recovered approximately the amount of the unpaid balance due on the Mortgage and that to deny the Plaintiffs their prayer to have the Mortgage can-celled in effect allows the Defendant to recover windfall profits to which he is not entitled.
“5. The Court erred in ordering the foreclosure sale of the property since the Plaintiffs acted in good faith in assuming that the Mortgage should be satisfied since the Defendant recovered the amount of the unpaid balance of her Mortgage through insurance claims and that foreclosure being an equitable proceeding it would be an inequitable [sic] to allow the Defendant to recover the total amount of the Mortgage that she held and at the same time with the property which gave rise to the Mortgage.”

Sweet’s petition merely calls to the attention of the trial court the alleged inequity of permitting the defendant to recover the insurance proceeds as well as the mortgage amounts. The earlier petition did the same and more. Thus, we are compelled to conclude that the trial court, upon further deliberation, decided that its earlier ruling denying the petition for rehearing was in error. Whether it was or not is not material here; what is material is that judicial error in disposing of a petition for rehearing can be corrected only through a timely-taken appeal, not by a Rule 1.540(b) motion. Shelby Mutual Insurance Company of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970); Fiber Crete Homes, Inc. v. Division of Administration, Department of Transportation, 315 So.2d 492 (Fla. 4th DCA 1975).

Reversed and remanded with directions to reinstate the order of November 22, 1982, and vacate all subsequent orders pertaining to the petition for rehearing.

      . The Markevitches argue that our reinstatement of the appeal necessarily determined that the trial court’s grant of relief under Rule 1.540(b) was proper and established the law of the case. While it is true that Van Harren opposed reinstatement of the Markevitches’ appeal on the very grounds urged on the present appeal, our reinstatement of the appeal was simply a determination that the November 22, 1982, order having been set aside, the appeal from the order of February 1, 1983, was thereby rendered timely. The propriety of the trial court's action in granting the Rule 1.540(b) relief was left for determination on an appeal from that action, which issue is now before us.

      . This is not a case where the trial judge intended to grant the petition for rehearing and inadvertently signed an incorrect order submitted to him. See, e.g., Marx v. Redd, 368 So.2d 101 (Fla. 4th DCA 1979). Indeed, the November 22, 1982, order in question was prepared by the trial judge himself.


author: NESBITT, Judge.

text:
    Jose Antonio HERRERO, Appellant, v. Adriana MATAS, Appellee.
    No. 83-2084.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 9, 1984.
    Starr W. Horton, Miami, for appellant.
    Cuadrado & Sosby and Manuel A. Cua-drado, Miami, for appellee.
    Before HUBBART, NESBITT, and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

Herrero appeals a nonfinal order denying his petition for writ of habeas corpus to regain custody of his daughter. We have jurisdiction. Fla.R.App.P. 9.130(a)(3) (C)(iii).

Herrero (the father) and Matas (the mother) were married and divorced in San Juan, Puerto Rico. Their marital domicile was Puerto Rico. Their child was born in Puerto Rico. When Herrero and Matas were divorced, in 1976, Matas was awarded custody of the child. Within one year from the divorce, Matas moved to Miami with her daughter.

In 1981, Matas agreed to give Herrero temporary custody of the child. Herrero took their daughter to the Dominican Republic, where he was residing. At the end of that school year, Matas filed a motion in the Puerto Rican court to have Herrero held in contempt for his failure to return the child. Herrero countered with a petition for custody. At that time, the Puerto Rico court modified the original decree and granted split custody.

In January, 1983,, Matas once again sought to have Herrero held in contempt by the Puerto Rican court. Herrero countered with yet another petition for custody. This petition contained allegations that a modification in the custody arrangement would be in the child’s best interest because Matas’ new husband had abused the child. Herrero was temporarily awarded custody, pending a final hearing to be held upon the completion of psychiatric and social worker’s reports.

Prior to that final hearing, Matas moved the Puerto Rican court to enforce her right to have the child visit her on Mother’s Day. Herrero sent the child to Miami for a visit. Matas then kept the child and filed a petition in the Dade Circuit court to modify the Puerto Rican judgment. Subsequently, the Puerto Rican court held its final hearing and entered an order awarding custody to Herrero. The Dade Circuit court entered an order finding jurisdiction and denying Herrero’s petition for writ of habeas corpus. We reverse.

The propriety of a Florida court’s exercise of jurisdiction in this matter is governed by the Uniform Child Custody Jurisdiction Act (hereinafter ‘the Act'), codified in Florida at sections 61.1301-61.1348, Florida Statutes (1983). The purposes of the act are to avoid jurisdictional competition and conflict, promote cooperation among the states so that the state best able to protect the interests of the child renders the custody decree, and to assure that the state with the closest connection to the parties is the state where the litigation takes place. In addition, the act was designed to promote stability by discouraging continuing controversies over child custody, to deter abductions of children undertaken to facilitate changes in custody, and to promote the exchange of information and mutual assistance between courts of the various states. § 61.1304, Fla.Stat. (1981). See also Burch v. Burch, 424 So.2d 187,189 (Fla. 4th DCA 1983); Trujillo v. Trujillo, 378 So.2d 812, 814 (Fla. 3d DCA 1980).

The act provides that no Florida court shall exercise jurisdiction if, when the petition was filed in Florida, a proceeding concerning custody of the child was already pending in a court of another state exercising jurisdiction substantially in conformity with the act. § 61.1314, Fla.Stat. (1981). There are three ways in which a state may proceed in substantial conformity with the act. The first way, of course, is when the other state has also enacted the act. Alternatively, proceeding under a statute which is similar to the act will satisfy the test of substantial conformity. Finally, in the absence of any statute, the standard of substantial compliance is satisfied when the court would have had jurisdiction if the other state had enacted the act. See Hernandez v. Hernandez, 406 So.2d 513 (Fla. 3d DCA 1981) (remanding for hearing on whether Texas exercised jurisdiction in conformity with the act since Texas had not enacted the act). See also Bergstrom v. Bergstrom, 271 N.W.2d 546, 551 (N.D.1978); Priscilla S. v. Albert B., 102 Misc.2d 650, 424 N.Y.S.2d 613 (N.Y.Fam.Ct.1980).

Puerto Rico has not adopted the act and counsel informs us that there is no similar statute. However, under the facts of this case, Puerto Rico would have had jurisdiction under section 61.1308(l)(b), Florida Statutes (1981) if the act were in force there. That section provides that a court may exercise jurisdiction if one of the contestants has significant contacts with the state and it is in the child’s best interest to proceed because there is substantial evidence in the state relating to the child’s care and welfare. While the act has not abrogated the preference for continuing jurisdiction in the state which entered the original decree, see Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Family L.Q. 203 (1981), the significant connection requirement of section 61.1308(l)(b) is not met by a mere showing that the state assuming jurisdiction rendered the original decree. Findley v. Findley, 441 So.2d 1166 (Fla. 2d DCA 1983); Nelson v. Nelson, 433 So.2d 1015 (Fla. 3d DCA 1983); Matteson v. Matteson, 379 So.2d 677 (Fla. 2d DCA 1980). Rather the preference for continuing jurisdiction exists only where the state which entered the original decree continues to have jurisdiction because it has satisfied the jurisdiction prerequisites of section 61.1308.

Turning to those prerequisites, we conclude that the child and her father had a significant contact with Puerto Rico. Mat-as has filed proceedings in regard to custody three times since the original decree was entered. Thus, the Puerto Rican court has remained apprised of all the aspects of this litigation. The fact that the Puerto Rican court has remained actively involved in this custody battle is also important in determining whether a Puerto Rican proceeding would be in the best interest of the child. The Puerto Rican court already had substantial evidence concerning the child’s welfare. Indeed, the Puerto Rican court had ordered thorough reports on the current family situation. These reports were being prepared for the court when Matas filed in the Dade circuit court.

Since Puerto Rico acted in substantial conformity with the act in this case, the Dade circuit court should have declined to exercise jurisdiction. This cause is remanded with instructions to enter an order that the child be returned to the custody of Mr. Herrero and an order dismissing the proceedings to modify the Puerto Rican decree.

      . Habeas corpus is an extraordinary remedy which was not appropriate in this case. We treat the petition as a petition for change of custody. See Trujillo v. Trujillo, 378 So.2d 812, 815, n. 18 (Fla. 3d DCA 1980).

      . Furthermore, it would defeat the salutary purposes of the act for a Florida court to exercise jurisdiction when the party who filed in Florida had filed elsewhere and lost. Mondy v. Mondy, 428 So.2d 235 (Fla.1983); Detko/Roberts v. Stikelether, 370 So.2d 383 (Fla. 4th DCA 1979).


author: PER CURIAM.

text:
    Georgianna Fauntleroy REVITZ, Appellant, v. Robert REVITZ, Appellee.
    No. 83-2106.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 9, 1984.
    Ferrell & Ferrell and Milton Ferrell, Miami, for appellant.
    Cohen, Brown, Reed, Ivans & Schwartz and Allen Reed, Miami, for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Golemheski v. Golembeski, 57 So.2d 654 (Fla.1952); Alterman v. Alternan, 361 So.2d 773 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1361 (Fla.1979); Wattenmaker v. Wattenmaker, 358 So.2d 227 (Fla. 3d DCA 1978).


text:
    TROPIGAS, S.A., Appellant, v. Richard ANDERSON, et al., Appellees.
    No. 83-2854.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1984.
    Rehearing Denied April 13, 1984.
    Christian D. Keedy, Miami, for appellant.
    Daniels & Hicks and Sam Daniels and Patrice A. Talisman, Robert J. Dickman, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. § 48.081(5), Fla.Stat. (1983); Houston v. Caldwell, 359 So.2d 858 (Fla.1978); Sempe v. Coordinated Caribbean Transport, Inc., 363 So.2d 194 (Fla. 3d DCA 1978); Adams v. Seaboard Coast Line R.R., 224 So.2d 797 (Fla. 1st DCA 1969).


author: HERSEY, Judge.

text:
    O.D. PRIEST, Jr., Appellant, v. PLUS THREE, INC., et al., Appellees. PLUS THREE, INC., Appellant, v. Allen C. CLARK, Tax Collector, etc., et al., Appellees. PLUS THREE, INC., Appellant, v. O.D. PRIEST, Jr., et al., Appellees.
    Nos. 81-1483, 81-1484 and 81-2262.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearings Denied April 3, 1984.
    I.C. Smith, West Palm Beach, for O.D. Priest, Jr.

      Carl M. Collier, Lake Worth, for Plus Three, Inc.
    John C. Randolph of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellee John B. Dunkle, Clerk of the Circuit Court.
    J. Jeffrey Thistle, Delray Beach, for ap-pellees Saarinen.
    Cone, Wagner, Nugent, Johnson, Ha-zouri & Roth, and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellee Allen C. Clark, Tax Collector.
   HERSEY, Judge.

At issue in this appeal is the appropriate interpretation to be placed upon the sentence: “No tax deed sale shall be held until 30 days after the first publication of the notice” contained in Section 197.246(1), Florida Statutes (1981). We determine that all other issues either are without merit or are rendered moot by our resolution of this issue.

Because real estate taxes were not paid for the years 1975, 1976 and 1977 on real property owned by appellee, Plus Three, Inc., tax certificates were issued and ultimately a foreclosure by tax deed proceeding was commenced. Notice of tax sale was published on September 6, 13, 20 and 27, 1978, and the tax sale was held on October 6, 1978. Appellant purchased the property at the tax sale and brought suit to quiet title. The trial court voided the tax deed on the basis that the statutory notice was inadequate. The court found that “the tax sale was held less than thirty days after the first publication of the notice of sale in violation of” the statute.

As in all these cases involving the computation of periods of time, the question is whether or not to count the first and last (or terminal) days or either of them. The answer lies in the particular language used to measure the period: in our case “until 30 days after.” We find no precedent dealing with this specific language. The general rule is said to be that expressions dealing with time are interpreted to include the terminal day and to exclude the first day. (Application of that rule here would render notice sufficient and require reversal.) This rule has been applied where the formula is expressed: “until ten days before” a known future date. Annot., 98 A.L.R.2d 1331, 1371 (1964). Where posting was required “for not less than four weeks” before the sale the general rule was applied in Pelton v. Muntzing, 24 Colo.App. 1, 131 P. 281 (1913). Service of a citation which was required to be served “at least twenty-five days previous to the first day of the term” was adequate when measured according to the general rule in Crawford v. Feder, 27 Fla. 523, 8 So. 642 (1891). See also Annot. 98 A.L.R.2d 1331, 1343 (1964).

Appellees, Saarinen, bring to our attention a case in which both first and terminal days are excluded from the computation. In Blanton v. State ex rel. Miller, 156 Fla. 694, 24 So.2d 232 (1945), the statute provided that “no marriage license shall be issued ... until after the expiration of three days from the date [of] application.” Clearly the language indicates an intention to count only “full” days as it specifies “after the expiration of three days ....” No such intention is manifested by the statute under consideration here.

It is a well established rule that statutory language should be accorded its common everyday meaning. The phrase to be interpreted “until 30 days after ... publication” contains a condition subsequent. Once the condition is fulfilled the act (sale) is permissible. The statute does not say a sale is prohibited until after 30 days after publication nor does it otherwise specify that only “full” or “clear” days count. Thus, the most reasonable interpretation of the statute is “until the thirtieth day after publication”; that is, the first day of publication is excluded and the day of the sale is included. The condition subsequent to a valid sale is thirty days after the first publication. If the first publication is September 6, and thirty days after September 6 is October 6, then the sale could validly be held on October 6. Since this interpretation also accords with the general rule and analogous precedents we apply it here and reverse the judgment of the trial court which found the notice of sale in violation of Section 197.246(1), Florida Statutes. The order on costs also appealed, of necessity, falls with the judgment.

REVERSED AND REMANDED.

LETTS and BERANEK, JJ., concur.

BY ORDER OF THE COURT:

We grant Appellee, Allen C. Clark and Appellee, John B. Dunkle’s Motions for Clarification and confirm that our opinion was intended as an affirmance of that portion of the final judgment pertaining to these appellees. In all other respects we deny rehearing and clarification.

We deny the Motion for Rehearing and Clarification filed by Plus Three, Inc.


text:
    Leo Lee ARENA, Appellant, v. STATE of Florida, Appellee.
    No. 82-1763.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a conviction and sentence for burglary. We affirm.

We believe there is competent substantial evidence in the record to support the trial court’s denial of appellant’s motion to suppress concerning the seizure of evidence from appellant at the scene of the burglary. Specifically the evidence would support a finding that the police officer who seized the evidence had probable cause to arrest and search the appellant at the time. This probable cause could have been predicated both on the officer’s knowledge of the burglary that had just taken place and the appellant’s bizarre behavior at the scene. Cf. State v. Williams, 34 Wash.App. 662, 663 P.2d 1368 (1983) and Commonwealth v. Williams, — Pa.Super. —, 464 A.2d 411 (1983). We also find no error in the trial court’s refusal to invalidate the warrantless search of an automobile which, according to the evidence, appeared at the time to be owned by appellant’s girlfriend who opened the automobile for the police, fully consented to a search thereof, and then drove off in the same vehicle. Although ownership of the automobile was later disputed, there was evidence presented that the vehicle was registered in the girlfriend’s name.

ANSTEAD, C.J., and BERANEK and GLICKSTEIN, JJ., concur.


author: GLICKSTEIN, Judge. WALDEN, Judge,

text:
    In the Interest of R.W.H., a Caucasian child, born March 4, 1972.
    No. 82-2013.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 11, 1984.
    Karen O’Brien Steger of McManus, Stewart & Ferraro, P.A., Stuart, for appellant.
    Jane L. Cornett of Wackeen & DeBerard, P.A., Stuart, for appellee.
   GLICKSTEIN, Judge.

The question here is as old as that posed to Solomon; namely, what is to become of the child. While none of us as reviewing judges may be possessed of that sage’s wisdom, we have the benefit of a carefully considered judgment entered by the acting circuit judge, who determined that the ten year old boy whose future is our concern should be permanently committed to HRS, based upon the following findings and conclusions:

1. That the child ... has been abused and neglected by his natural mother ... in that she failed to provide proper supervision, maintenance and care, and that she did allow him to be exposed to drug usage.
2. That [the child] is, at this time, in need of a stable home environment to prevent further physical, mental and emotional health impairment.
3. That the mother ... has failed to rehabilitate and is unable to provide proper home environment, parental supervision, maintenance and care of said child; that the mother ... has further failed to complete the requirements of the Performance Agreement entered into with the Department of Health and Rehabilitative Services on February 5, 1981.
And the Court FURTHER FINDING that it is manifestly in the best interest of said child to permanently commit said child to the agency hereinafter named for subsequent adoption, said agency being authorized under the laws of the State of Florida to receive permanent commitment of said child and place said child in an adoptive home to consent to the adoption of said child, and that said agency is willing to receive said child; that no legal custodian has been appointed by any Court for said child. (Emphasis added)
IT IS, THEREFORE, ORDERED that said child is hereby adjudged to be a dependent child; that said child is hereby permanently committed to the Florida Department of Health & Rehabilitative Services for subsequent ADOPTION.

Those involved in child advocacy have labored long and hard to make the judicial, executive and legislative leaders throughout our nation aware of the specific needs of children. The battle for conscious awareness has been waged with all of the energy, labor and determination characteristic of an uphill climb. As the late President John F. Kennedy reminded us, it is better to light a candle than to curse the darkness. Candles are being lit to eliminate a dark way, and as they illumine the nurturing of children, the slope appears less steep. At the national level, the Adoption Assistance and Child Welfare Act of 1980, the Senate Caucus and the House Select Committee illustrate the attention children are finally getting so that each child can have the opportunity to grow and live. In Florida, the Governor has created his Constituency for Children; the legislature continues to refine and improve statutory recognition and awareness; and the judiciary contributes sensitive opinions as in In the Interest of W.D.N., II, C.N. and C.N., 443 So.2d 493 (Fla.2d DCA 1984); and Carnrike v. Department of Health & Rehabilitative Services, 442 So.2d 1093 (Fla. 5th DCA 1983). The effort to provide each child with roots and wings grows and gathers sensitive support.

In the present case, the two-pronged judgment determined that this unfortunate mother is unable to provide the proper environment for her child and had not completed the requirements of the performance agreement into which she had entered with HRS. The record before us supports the trial judge’s determination; and there is no legitimate basis for us to substitute our judgment for his; which statement may be no more than rhetoric. What is not rhetorical, however, is that when we read this record we come away with the feeling that while life may have shortchanged the mother for the last several years, causing her two children respectively to be placed in an abysmal environment, the trial judge’s judgment permits this child an environment the mother cannot provide.

Our closing thought is an observation about the split decision of our companion court in In the Interest of A.B., 444 So.2d 981 (Fla. 1st DCA 1983) and of its author, Judge Robert Smith, whose leaving the bench at the end of 1983 we view as most unfortunate and a great loss to the people of Florida. The court in that case recognized, as this court did in In the Interest of J.L.P., 416 So.2d 1250 (Fla. 4th DCA 1982) that either neglect or abuse may be proved prospectively. However, we feel our companion court viewed parental performance agreements provided by Section 409.168, Florida Statutes (1981) as only two dimensional; i.e. if the parent performed, the child is to be returned; and if not, the child is to be committed for adoption. The interest of a child, however, like the Hope Diamond, is multidimensional, and other alternatives, such as long term foster care or independent living must be a consideration. Children are not cards to be placed in slots. Their needs require imaginative flexibility, not slavish categorization. We simply cannot engage in tunnel vision when a child’s welfare is at stake; every reasonable option must be available. In the case before this court, the parent did not perform, so we are not faced with consideration of alternatives. Let us hypothesize, however, that notwithstanding complete performance by the parent, objective investigation still revealed substantial reasons not to return the child to the parent. We need not be prisoners of our self-constructed intellectual walls, nor can we be, when a child is involved, just because “a deal’s a deal.” The child never signs the performance agreement and the court never sees it until review is sought. An agreement so executed by adults can not fetter the court, whose primary concern must be the child.

HURLEY, J., concurs.

WALDEN, J., dissents with opinion.

WALDEN, Judge,

dissenting:

The mother of R.W.H. appeals from a final judgment permanently committing her son, R.W.H. (born in 1972), to the Florida Department of Health and Rehabilitative Services (HRS) for subsequent adoption.

I would reverse because, in my opinion, the evidence before the trial court was not clear and convincing. In addition, I feel that the mother should not be permanently deprived of the custody of her son without at least a psychiatric evaluation, which evaluation was contemplated by the agreement between HRS and the mother. Finally, while the mother did not exactly complete the performance agreement, I feel that her efforts, under the circumstances, were sufficient to merit at least one more opportunity to comply. Hopefully, HRS would affirmatively aid and encourage the mother in that direction.

I would reverse and remand with instructions to extend the compliance date of the Performance Agreement for a reasonable period, with further instructions that HRS provide for a psychiatric evaluation of both the mother and R.W.H.


text:
    TOLEDO PARK HOMES and H.D.V. Construction Corp., Appellants, v. John A. GRANT, Jr., Appellee.
    No. 82-2607.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 4, 1984.

      Ephraim Collins, Margate, for appellants.
    Peters, Pickle, Flynn, Niemoeller & Downs, Miami, and Jeanne Heyward, Miami, for appellee.
   HERSEY, Judge.

This matter began as an action for breach of contract and professional malpractice. Pursuant to contract entered into and performed in 1977, appellee, a registered land surveyor, prepared various plats and surveys for appellees. One such sketch of survey failed to disclose an encroachment by easement on a particular lot. After sale of that lot its purchaser filed suit and recovered damages from ap-pellee occasioned by the undisclosed easement. In response to the complaint initiating the present litigation appellee interposed a motion to dismiss. One basis for the motion was that the statute of limitations applicable to professional malpractice, Section 95.11(4), Florida Statutes (1981), barred the action.

The trial court granted the motion and subsequently entered a final judgment finding that it was the intent of the legislature to remove claims involving professional malpractice arising out of contractual relationships based on a written instrument from the five (5) year statute of limitations set forth in Section 95.11(2), Florida Statutes, such causes of action being governed instead by the two (2) year statute of limitations provided for in Section 95.11(4), Florida Statutes.

Appellant argues that the two year statute of limitations for professional malpractice does not apply, relying on Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA), cert. denied, 360 So.2d 1247 (Fla.1978). We agree with this proposition and reject appellee’s hypothesis that every activity subject to the jurisdiction of the Department of Professional Regulation constitutes a “profession” within the scope of the malpractice statute of limitations, Section 95.11(4), Florida Statutes (1981). To hold otherwise would bring activities such as embalming and cosmetology within the professional malpractice statute of limitations. We are confident the legislature had no such intention. Accordingly, we hold that the four year statute of limitations in Section 95.11(3), Florida Statutes (1981) (actually its predecessor) applies here. Accord: School Board of Seminole County v. GAF Cory., 413 So.2d 1208 (Fla. 5th DCA 1982), rev’d. sub. nom. on other grounds, Kelley v. School Bd. Seminole County, 435 So.2d 804, 805 n. 2 (Fla.1983). For contrary dicta see Lisbon Contractors, Inc. v. Miami-Dade Water & Sewer Authority, 537 F.Supp. 175 (S.D.Fla.1982).

Reversal of the final judgment is required, however, not because the wrong statute of limitation period was applied but for another reason. The defense of the statute of limitations may be raised by motion to dismiss only where its violation appears on the face of the complaint or its exhibits. Estate of James v. Martin Memorial Hospital, 422 So.2d 1043, 1045 (Fla. 4th DCA 1982). In that case we also pointed out that the period of limitations begins to run from the time the cause of action was discovered or with the exercise of due care, should have been discovered. The cause of action accrues when the last element constituting the cause of action occurs. Lund, 354 So.2d at 942. Thus even if appellant’s claim that “the last element was the finding of the jury that there were damages which were attributable to the appellants as a result of the improper survey” were correct, and it is not, appellant loses because the complaint contains no indication as to when this event occurred. In short the only time frame referred to in the complaint is the date of contract and the date of delivery of the offending sketch of survey. There is no way to tell when the alleged error was or should have been discovered. Accordingly we reverse and remand for further proceedings.

REVERSED and REMANDED.

LETTS and BERANEK, JJ., concur.


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES OF the STATE OF FLORIDA, Appellant, v. Myron WEINSTEIN, Appellee.
    No. 83-1337.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied April 5, 1984.
    Jim Smith, Atty. Gen., and Vicki Gordon Kaufman, Asst. Atty. Gen., Tallahassee, for appellant.
    Gus Efthimiou, Jr., Miami, for appellee.
   PER CURIAM.

The Department of Health and Rehabilitative Services appeals the issuance of a mandatory injunction ordering it to reinstate the plaintiff, Myron Weinstein, in a specific job with its agency at a specific location.

A mandatory injunction is proper where a clear legal right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law. Gulf Power Company v. Glass, 355 So.2d 147 (Fla. 1st DCA 1978), and Dania Jai Alai International, Inc. v. Murua, 375 So.2d 57 (Fla. 4th DCA 1979). We have reviewed the record on appeal and find that the requirements necessary for the issuance of an injunction were not met. There has been no violation of a clear legal right demonstrated, and the personal and family problems of the plaintiff do not constitute a basis for the injunction issued. The injunction is therefore reversed and the matter remanded for further proceedings which shall include a rehearing and ruling on proper venue.

REVERSED AND REMANDED.

BERANEK, DELL, and WALDEN, JJ., concur.


author: PER CURIAM HURLEY, Judge,

text:
    David GOUDY, Appellant, v. STATE of Florida, Appellee.
    No. 82-959.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 1984.
    Rehearing Denied March 28, 1984.
    Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM

AFFIRMED.

ANSTEAD, C.J., and WESSEL, JOHN D., Associate Judge, concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting:

The trial court ruled that a warrantless search of the defendant’s hotel room was illegal. Consequently, the court suppressed some — but not all — of the evidence found in the hotel room. In my view, the trial court erred when it ruled that the defendant lacked standing to contest the seizure of money found under a mattress in the hotel room. Furthermore, I cannot agree with my colleagues’ assessment that the subsequent admission of this money into evidence was harmless error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Therefore, I respectfully dissent.


text:
    John MARSHALL and Marion County, Florida, Petitioners, v. The Honorable Carven D. ANGEL, as Circuit Judge of the Fifth Judicial Circuit of the State of Florida; Freeman Keyes; Ocala Stud, Inc.; Leonard H. Lavin and his wife, Berniece E. Lavin; and Red Oak Farm, Inc., Respondents.
    No. 83-1745.
    District Court of Appeal of Florida, Fifth District.
    March 1, 1984.
    Rehearing Denied March 26, 1984.
    Michael Milbrath, County Atty., and John P. McKeever of Pattillo & McKeever, P.A., Ocala, for petitioners.
    Willard Ayres of Ayres, Cluster, Curry, McCall & Briggs, P.A., Ocala, for respondents Ocala Stud, Inc., Leonard H. Lavin and his wife Berniece E. Lavin.
    James A. Cornelius of O’Neill, Cornelius & Cohen, P.A., Ocala, for respondent Freeman Keyes.
    Irwin J. Weiner, Ocala, for respondent. Red Oak Farm, Inc.
   PER CURIAM.

Petitioners, Marion County and John Marshall, seek a writ of prohibition. Because we find that the trial court had jurisdiction over the subject matter of the cause below, we deem prohibition to be an improper remedy. See Moore v. Leisure Pool Service, Inc., 412 So.2d 392 (Fla. 5th DCA 1982); School Board of Marion County v. Angel, 404 So.2d 359 (Fla. 5th DCA 1981).

Certiorari review pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(A), which might otherwise have been available, is precluded here due to petitioners’ failure to comply with the thirty-day requirement of Florida Rule of Appellate Procedure 9.100(c).

Accordingly, the Petition for Writ of Prohibition is

DENIED.

DAUKSCH, COBB and COWART, JJ., concur.


author: SMITH, Judge.

text:
    Robert L. CROSBY and Bernice O. Crosby, Appellants, v. FLEMING & SONS, INC., a corporation, Benjamin Johnson and Safeco Insurance Company, a corporation, Appellees.
    No. AO-98.
    District Court of Appeal of Florida, First District.
    March 2, 1984.
    Rehearing Denied April 4, 1984.

      Christine Rieger Milton of Mahoney, Hadlow & Adams, Jacksonville, for appellants.
    William M. Howell of Howell, Liles, Braddock & Milton, Jacksonville, for appel-lees.
   SMITH, Judge.

The Crosbys appeal from the trial court’s order directing a remittitur of $105,000.00 of the $350,000.00 in damages awarded by the jury to Robert Crosby and $20,000 of the $50,000.00 awarded his wife, Bernice, or, if they do not agree to the remittitur, granting defendants’ motion for a new trial. Appellees cross-appeal the trial court’s denial of their motion for continuance. We strike that portion of the order directing the remittitur, find no abuse of discretion in the granting of a new trial, and, in light of our affirmance of the new trial order, see no need to address appellees’ contention on cross-appeal.

The gravamen of this appeal is the extent of the damages suffered by Robert L. Crosby on December 14, 1979, when the vehicle he was operating was struck from the rear by a truck being operated by Benjamin Johnson, an employee of Fleming & Sons, Inc. He claimed $9,100.00 for past medical bills, $1,000.00 for future medical tests, $43,691.36 for past lost wages, $160,-300.77 for future lost wages, and $150,-562.50 for pain and suffering, the sum total being $364,654.63. His wife, too, sought $50,000.00 for loss of consortium. The trial was had before a jury, which awarded Robert $350,000.00 and his spouse $50,-000.00. Liability, although disputed in the trial court, is not contested by appellees in this appeal.

The genesis of the events leading to the new trial occurred on July 2, 1982, or ten days before the trial’s commencement, when appellees took a deposition of Robert Crosby’s primary treating physician, Dr. Hocker, in an effort to further prepare for trial. Later that day, they moved for a continuance based upon the unexpected testimony of the doctor to the effect that Crosby’s condition had worsened and that further tests, such as a myelogram, and possibly further surgical procedures would be required. The motion came up for hearing the morning of the trial and was denied; however, the trial court ruled that Dr. Hocker would not be permitted to speculate as to what further tests might show or what further procedures might be required.

On direct examination, and despite appel-lees’ counsel’s repeated objections and the trial court’s repeated admonitions to the doctor to confine his opinion to his previous examinations and diagnostic tests, Dr. Hocker engaged in continued speculation, couched in terms of possibilities, not probabilities, as to what Crosby’s future condition and medical needs might be. For example, when asked when he last saw Crosby, Hocker non-responsively answered in part: “I think he has a problem in his lower back there. I certainly hope that it is not a disc rupture, or something causing a nerve root problem underneath the part that I fused.... ” On another occasion, when discussing a refusion of Crosby’s spine Dr. Hocker opined what a “terrible operation” a refusion would be and even ventured that he had recently done one that was “an awful operation.”

The Crosbys now contend that the new trial order is erroneous because the trial court failed to set forth factual findings justifying the grant of new trial and because the statements set forth in the trial court’s order, such as those previously mentioned, were merely cumulative of other testimony admitted without objection. They misconceive, however, the appropriate standard for appellate review of an order granting a new trial:

We have stated and restated the appropriate standard for district courts upon review of a trial court’s motion granting a new trial. The test is whether the trial court abused its “broad discretion.” If reasonable men could differ as to the propriety of the action taken by the trial court, then there is no abuse of discretion.

Ford Motor Company v. Kikis, 401 So.2d 1341, 1342 (Fla.1981). And while the trial court must give express reasons justifying its order, Wackenhut v. Canty, 359 So.2d 430 (Fla.1978), we find that the reasons advanced by the trial judge are sufficient, both legally and factually, to justify the order granting a new trial. The order itself sets forth in sufficient detail Dr. Hock-er’s voluntary, speculative, and non-responsive answers, all given in spite of the trial court’s express admonition that Hocker confine himself to his actual findings. Indeed, Dr. Hocker’s opinion as to Crosby’s future difficulties was merely couched in terms of “possibilities,” which are simply not probative of his future damages. See Florida Standard Jury Instructions (Civil) 6.1(b) and (c). Therefore, in view of the trial judge’s “direct and superior vantage point,” Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980), we can find no abuse of discretion in the finding of prejudice and the resultant new trial order.

We do, however, find that the remit-titur was erroneously ordered. Liability is not now contested, and the record contains substantial competent evidence of Robert Crosby’s past and future medical expenses and past and future wage loss. Further, in view of the not insubstantial evidence as to the extent and kind of Robert Crosby’s various injuries and surgical interventions and the impact of his past and present condition upon the parties’ marital relationship, we do not find the awards of loss of consortium and pain and suffering to be so grossly excessive as to shock the judicial conscience.

Accordingly, the trial court’s order is affirmed, but for the reasons stated, and this case is remanded for further proceedings consistent with this opinion.

JOANOS and NIMMONS, JJ., concur.


author: CAMPBELL, Judge.

text:
    Gregory R. BURR, Appellant, v. FLORIDA PATIENT’S COMPENSATION FUND, and Bayfront Medical Center, Inc., Appellees.
    No. 83-1359.
    District Court of Appeal of Florida, Second District.
    March 2, 1984.
    Rehearing Denied March 28, 1984.

      John W. Williams and Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., and David B. Kesler, St. Pe-tersburg, for appellant.
    Thomas Saieva of Woodworth, Carlson, Meissner & Webb, St. Petersburg, for ap-pellee/Florida Patient’s Compensation Fund.
   CAMPBELL, Judge.

Appellant, Gregory R. Burr, seeks reversal of the trial court’s order dismissing his cause of action against the Florida Patient’s Compensation Fund (Fund). The trial court ruled that appellant’s cause of action appeared, on the face of his amended complaint, to be barred by the limitations period provided in section 95.11(4)(b), Florida Statutes (1981). We affirm.

On December 22, 1979, appellant allegedly suffered injuries as a result of medical malpractice while a patient at Bayfront Medical Center (Bayfront). Apparently, appellant filed his complaint against Bay-front within the two-year limitations period of section 95.11(4)(b), although this information is not provided in the parties’ briefs, nor in the record on appeal.

On March 10, 1983, more than two years after the incident giving rise to appellant’s alleged injury, appellant amended his complaint to add, for the first time, the Fund as a party defendant. Joinder of the Fund, as a party defendant, was required by section 768.53(3)(e)l, Florida Statutes (1981), if appellant sought to recover his claimed damages from the Fund. In Owens v. Florida Patient’s Compensation Fund, 428 So.2d 708, 710 (Fla. 1st DCA 1983), the court expressly held that for the purposes of complying with section 95.11(4)(b), when a complaint against a health care provider is amended to add the Fund as a new party defendant, such amendment does not relate back to the filing date of the original complaint. Therefore, as to-the Fund, the action is not commenced until the amended complaint is filed. See also Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980). We agree with that holding and find that, as to the Fund, this action was not timely filed.

Appellant urges, however, that Owens is not applicable, so that it matters not that the amended complaint does not relate back to the filing date of the original complaint. Appellant argues instead that the amendment was filed within the limitations provisions of section 95.11(3)(f) or (p), Florida Statutes (1981), which he claims are the sections applicable to the joinder of the Fund, rather than section 95.11(4)(b).

Appellant’s assertion that section 95.-11(3) applies, rather than section 95.11(4), is based on the argument that the Fund is not a health care provider as contemplated by section 95.11(4), relying on Durden v. American Hospital Supply Corporation, 375 So.2d 1096 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 633 (Fla.1980). Durden is not applicable here. The Durden court ruled section 95.11(4)(b) inapplicable because there, Durden’s claim for damages against American Hospital Supply Corporation, who operated a blood donor center, arose from an injury allegedly received as a result of a vendor-vendee relationship from sales of blood. Section 95.11(4)(b), in contrast, requires an injury resulting from a relationship arising out of medical, dental or surgical diagnosis, treatment or care. Here, appellant’s claims for damages clearly arise from alleged injuries occurring while undergoing medical, dental or surgical diagnosis, treatment or care at Bay-front.

Appellant also argues that because the Fund is not a health care provider rendering such services, and because the Fund was not in privity with appellant, the provisions of section 95.11(4)(b) are still inapplicable. For this position, appellant relies on Gonzales v. Jacksonville General Hospi tal, Inc., 365 So.2d 800 (Fla. 1st DCA 1978), quashed on other grounds, 400 So.2d 965 (Fla.1981). We agree that the Fund is not a health care provider, and that the Fund was not in privity with appellant. However, we do not agree that section 95.-ll(4)(b) is inapplicable, and in doing so, reject the reasoning and holding of the district court in Gonzales on the question of privity. The Florida Supreme Court, in quashing the decision of the district court in Gonzales, expressly refrained from reaching the privity issue. Section 95.-ll(4)(b) provides that the limitation of actions in that subsection is “limited to the health care provider and persons in privity with the provider of health care.” In Gonzales, the district court construed that language to require privity between the claimant and the health care provider, as well as privity between the claimant and any other persons the claimant alleges to be liable. We reject that construction. It is clear to us that section 95.11(4)(b) applies when there is privity not only between the claimant and the health care provider, but also when anyone connected with the incident against whom the claimant alleges damages is in a privity relationship with the health care provider. We note that while both cases are from the same court, the Owens opinion does not address Gonzales.

An argument could be made that any action against the Fund is founded on a statutory liability, and that section 95.-ll(3)(f) should be applicable. However, it is clear to us from the overall legislative intent, as we perceive it, that section 95.-ll(4)(b) is applicable.

In construing legislative intent to make section 95.11(4)(b) applicable, we observe several facts. Section 768.54, which creates the Fund and its liability, is found within part II of chapter 768, Florida Statutes (1981). Part II is titled “Medical Malpractice and Related Matters.” Section 768.54(3), in creating the Fund, states it is for the purpose of paying portions of claims arising out of “rendering or failure to render medical care or services.” The Fund is liable for claims only against health care providers who participate in the Fund. The Fund is not obligated to pay any claim unless the Fund is named as a defendant in the suit against the health care provider. That requirement alone would make it seem illogical for the legislature to have intended a longer and different limitations provision to apply to the Fund than is applied to the health care provider for whom it may be obligated.

Appellant has cited to us, as supplemental authority, Florida Medical Center, Inc. v. Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983). While that case may have a profound effect on portions of the statutes concerning the Florida Patient’s Compensation Fund, it has no effect on the applicable statute of limitations to any action against the Fund.

Accordingly, we affirm the trial court in its dismissal of the action against the Flori-' da Patient’s Compensation Fund.

. GRIMES, A.C.J., and SCHOONOVER, J„ concur.

      . Analogously, a wrongful death action, an action created by statute, is governed by the more specific limitations provision of section 95.-ll(4)(d), and not 95.1 l(3)(f).


text:
    CONSOLIDATED GAS COMPANY OF FLORIDA, a Florida corporation, Appellant, v. CITY GAS COMPANY OF FLORIDA, a Florida corporation, Appellee.
    No. 82-2676.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Rehearing Denied April 11, 1984.

      Mershon, Sawyer, Johnston, Dunwody & Cole and William J. Dunaj and Philip A. Allen, III, Miami, for appellant.
    Steel, Hector & Davis and Arthur J. England, Jr. and Nancy E. Swerdlow, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the judgment under review entered in favor of City Gas Company of-Florida upon holdings that (1) the agreement between the developer and Consolidated Gas Company of Florida, which (a) gave to Consolidated “an exclusive franchise” to “install and maintain gas tanks, gas lines, appliances and appurtenances” in the developed subdivision did not create an easement or property right in the land enforceable by Consolidated against City Gas Company, see Colen v. Sunhaven Homes, Inc., 98 So.2d 501 (Fla.1957); Leonard v. Baylen Street Wharf Co., 59 Fla. 547, 52 So. 718 (1910); St. Joe Natural Gas Co. v. City of Ward Ridge, 265 So.2d 714 (Fla. 1st DCA 1972); North Dade Water Co. v. Florida State Turnpike Authority, 114 So.2d 458 (Fla. 3d DCA 1959); G.W. Thompson, Thompson On Real Property § 295 at 644 (1980 replacement); see generally Loxahatchee Recreation, Inc. v. Harrison, 367 So.2d 237 (Fla. 4th DCA 1979), and (b) gave to Consolidated a “perpetual right-of-way easement” did not create an “exclusive right-of-way easement,” see Holbrook v. Telesio, 225 Cal.App. 152, 37 Cal.Rptr. 153 (1964) (the grant of an exclusive easement must be clearly stated); see also Jabour v. Toppino, 293 So.2d 123 (Fla. 3d DCA 1974); Claughton Hotels, Inc. v. City of Miami, 140 So.2d 608 (Fla. 3d DCA 1962); and (2) in the absence of an easement specifically and clearly stated to be exclusive, City Gas Company of Florida, a public utility granted statutory easement rights, is privileged to use the servient land in any manner not inconsistent with the limited use vested in the easement owner, cf. City of Pasadena v. California-Michigan Light & Water Co., 17 Cal.2d 576, 110 P.2d 983 (1941) (grant to city of non-exclusive easement for the installation of water pipes did not preclude grant to another water company of similar rights in easement).

Affirmed.


text:
    Dolores CECILIO, Appellant, v. Richard CECILIO, Appellee.
    No. 83-1992.
    District Court of Appeal of Florida, Third District.
    March 6, 1984.
    Rehearing Denied April 10, 1984.
    Elizabeth S. Baker, Coconut Grove, for appellant.
    George L. Cardet, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

Finding that the trial court abused its discretion in failing to reconsider child support obligations, we reverse that portion of the order denying modification of child support. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In light of the parties’ disparate economic circumstances, the trial court erred in denying the wife reasonable attorneys’ fees. Locke v. Locke, 413 So.2d 431 (Fla. 3d DCA 1982).

Appellant’s other points are without merit.

Reversed and remanded.


text:
    Robert L. FOUNTAIN and Jo Ann Fountain, his wife, Appellants, v. CITY OF JACKSONVILLE, Appellee.
    No. AQ-317.
    District Court of Appeal of Florida, First District.
    March 8, 1984.

      David W. Foerster of David W. Foerster, P.A., Jacksonville, for appellants.
    Dawson A. McQuaig, Gen. Counsel, William Lee Allen, Asst. Counsel, City of Jacksonville, for appellee.
   SMITH, Judge.

Appellants urge that the City of Jacksonville’s Air Installation Compatible Use Zone ordinance (“AICUZ”), Ordinance 78-256-271, should be found invalid for the following three reasons: (1) the City of Jacksonville did not strictly adhere to the special notice and hearing requirements for rezoning of land, as required by Section 166.041, Florida Statutes; (2) the land use restrictions imposed by the AICUZ ordinance are applied only to land surrounding military air installations in the Jacksonville area and not to any land in the vicinity of Jacksonville’s municipal airports, as required by the ordinance, thus resulting in unequal treatment of property owners situated in the same zoning classifications; and (3) the AICUZ ordinance is an improper exercise of the police power since, in creating a benefit solely for the US Navy, it unconstitutionally takes or restricts property rights that may only be purchased through the government’s exercise of the power of eminent domain. We agree with appellants’ contention ((1) above) that the procedural prerequisites of Section 166.041 were not followed by the City of Jacksonville and, disposing of the case on this issue, find no need to reach the other constitutional arguments advanced. Reversed.

A threshhold question concerns appellants’ right to appellate review. The judgment appealed from actually granted relief favorable to appellants by declaring the ordinance invalid as applied to appellants. However, appellants sought a ruling below and they contend here that the ordinance is fundamentally invalid. The question is whether appellants must be content with “half a loaf.” We answer in the negative.

Under the declaratory judgment statute, the right of review is governed by the same principles as govern other actions, and an appeal may be prosecuted only from a decree adverse to the appellant. North Shore Bank v. Town of Surfside, 72 So.2d 659 (Fla.1954). A party may, however, appeal when he is “aggrieved by the judgment,” even though it is in his favor. 3 Fla.Jur.2d, Appellate Review, § 19; and see State Road Department v. Zetrover, 105 Fla. 650, 142 So. 217, 218 (1932) (where judgment “void or otherwise in such condition that it is unjust or injurious to the party securing it.”) See, also Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927); Credit Industrial Company v. ReMark Chemical Co., 67 So.2d 540 (Fla.1953). Although the judgment below enjoined enforcement of the ordinance as to the plaintiff-appellants, it did not eliminate the burden of the ordinance as an impediment to the use and enjoyment of the property by appellants’ successors in interest. So long as the ordinance remains in effect, appellants’ will suffer a deprivation, to some degree, in their rights with respect to their property. We conclude that appellants under these circumstances are sufficiently aggrieved to be entitled to appeal.

Appellants’ cause of action grew out of the City’s denial of their application for a variance under the AICUZ ordinance to place a mobile home on their property located in the vicinity of Cecil Field, a naval air installation in Jacksonville, without modifications to provide a noise level reduction within the structure. The property is zoned open rural (OR), which ordinarily permits residential use of one single-family dwelling unit per one and one-half acres of land with no other applicable restrictions. The AICUZ ordinance, however, imposes further restrictions upon the use of lands within the districts impacted by the ordinance by means of an “overlay zone.” Our concern, however, in determining whether the ordinance is a zoning ordinance, is not with semantics but rather with what practical impact these “overlay zones” have on appellants and others’ lands situated within those zones.

The City concedes that if the ordinance is a zoning ordinance notice was inadequate under Chapter 166 but contends that the ordinance is more akin to a building code, for which the same notice requirements are not imposed. We disagree and find that the ordinance was intended to control development and land use in the vicinity of airports and not merely to impose standards for the construction of buildings otherwise permitted under the existing zoning classifications. The ordinance itself is included in the City’s zoning code and its very title (quoted below in part) indicates that it is something more than a building code:

ORDINANCE 78-256-271
AN ORDINANCE RELATING TO LAND USE REGULATIONS AND PARTICULARLY TO LAND USE COMPAT-ABILITY IN THE VICINITY OF AIRPORTS: ... AMENDING PART 11 OF CHAPTER 708 (ZONING CODE) OF THE ORDINANCE CODE OF THE CITY OF JACKSONVILLE BY PROVIDING ADDITIONAL DEFINITIONS, ESTABLISHING REGULATIONS APPLICABLE TO ESTABLISHED NOISE AND ACCIDENT POTENTIAL ZONES AND ESTABLISHING REGULATIONS APPLICABLE TO ESTABLISHED AIRPORT HEIGHT ZONES....

Further, although an AICUZ district is termed an “overlay zone,” it nevertheless imposes restrictions upon the land overlaid that are not contemplated by the underlying zoning, which remains unchanged. As appellants point out, a substantial portion of the land in such areas is zoned “open rural,” and this classification permits, among other things, a single-family dwelling on one and one-half acres of land, as is appellants' parcel. The AICUZ overlay zones, however, generally prohibit single-family dwellings and in several of the zones such dwellings are permitted only if they meet certain sound reduction standards. Thus, the AICUZ overlay prohibits a use which is otherwise permitted by the underlying zoning, and the mere fact that it has or may have an incidental effect on construction codes does not alter its fundamental nature as an amendatory zoning ordinance. And since this ordinance does, in fact, constitute an amendatory zoning ordinance, see, e.g., City of Sanibel v. Buntrock, 409 So.2d 1073 (Fla. 2nd DCA 1981), the ACIUZ ordinance must be deemed null and void because of the City’s failure to comply with the procedural requirements of Section 166.041.

REVERSED.

WENTWORTH and JOANOS, JJ., concur.

      . Section 166.041(3)(c), Florida Statutes (1978), provides for a notice and hearing procedure before adoption of an ordinance rezoning specific parcels of private real property, and paragraph 2. of subsection (c) provides for more stringent procedures when the proposed ordinance deals with more than 5 percent of the total land area of the municipality, as does the ordinance under consideration here. These procedures were not followed.

      . As to whether the failure to follow statutory notice requirements renders an ordinance invalid, the rule is summarized in 96 ALR2d 449 annotation, "Zoning Ordinance — Notice Requirements,” at 455-456:
      Regardless of the type of notice called for by the statute, the basic requirement that notice be given is uniformly held to impose upon the zoning authority a mandatory duty to give it, in default of which jurisdiction to pass valid zoning measures is lacking. The rule that compliance with the statute is mandatory and jurisdictional has been announced in scores of cases and appears to prevail in every jurisdiction where the question has been presented....
      Florida follows the majority view, under which measures passed in contravention of notice requirements are invalid. Ellison v. City of Fort Lauderdale, 183 So.2d 193 (Fla.1966); Malley v. Clay County Zoning Commission, 225 So.2d 555 (Fla. 1st DCA 1969); City of Gainesville v. GNV Investments, Inc., 413 So.2d 770 (Fla. 1st DCA 1982); City of Sanibel v. Buntrock, 409 So.2d 1073 (Fla. 2nd DCA 1981).

      . The city’s brief suggests, without fully developing an argument on the point, that since the evidence shows only that the ordinance affects appellants' property in the same way as would a building code provision, appellants have failed to establish a rezoning of their property. Whether or not this may be true, we do not view this as a basis upon which to deny appellants right to have the ordinance declared void, on due process grounds, because it was enacted without compliance with statutory requirements. Since appellants are injuriously affected by a portion of the ordinance, the rule applied in Hardage v. City of Jacksonville Beach, 399 So.2d 1077, 1079 (Fla. 1st DCA 1981) (to have standing to challenge portion of an ordinance, party must be affected by that portion he seeks to attack), cited by the city, is inapplicable.


text:
    STATE of Florida, Appellant, v. Willie Joe WILLIAMS, Appellee.
    No. AR-445.
    District Court of Appeal of Florida, First District.
    March 8, 1984.
    Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellant.

      P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellee.
   SMITH, Judge.

The State appeals from a trial court order entered pursuant to appellee-Williams’ Rule 3.850 motion for post-conviction relief setting aside judgment of conviction on two counts of burglary of a dwelling (pursuant to negotiated plea of nolo contendere), and granting a new trial. The State contends that the trial court erred in determining that a finding of competency to stand trial cannot be made retrospectively when raised by motion under Rule 3.850, Florida Rules of Criminal Procedure. We agree, under the circumstances of this case, that the court erred in failing to conduct an evidentiary hearing to determine appellee’s competency at the time he entered his plea, nunc pro tunc. Reversed.

Appellee’s Rule 3.850 motion alleged several grounds for relief. The only ground that concerns us on this appeal is that alleging incompetency at the time appellee entered his plea. Upon appellee’s appeal to this court from the trial court’s denial of his motion, this court reversed and remanded, directing the lower court to “either hold an evidentiary hearing, or attach to its order of denial ‘a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief ...’ see Rule 3.850, Fla.R.Crim.P.” Order, September 24, 1982, Case No. AL-360.

At the conclusion of several non-eviden-tiary hearings, the trial court entered its order finding that the record clearly refuted all grounds asserted in the motion excepting the one regarding competency at the time of the plea. The record discloses, as recited in the trial court’s order, that a motion for psychiatric evaluation was filed by appellee’s attorney on February 6, 1981, and upon agreement of the State the court entered an order for psychiatric evaluation on February 6, 1981. No action was taken until this order was amended on June 16, 1981, at which time the court appointed Drs. Jean S. Spruill, Ph.D., and Dr. Robert A. Wray, M.D., to perform psychiatric evaluations. The evaluations were subsequently made and the reports of the examiners were filed with the court, both indicating that appellant was competent at the time of the offense, and competent to stand trial. No hearing on the question of competency was held, nor was a specific finding of competency made by the court. Subsequently, on December 14, 1981, pursuant to negotiated plea, appellee entered a plea of no contest to two counts of burglary of a dwelling, at which time other charges pending against appellee were nolle prossed, or dismissed. On February 22, 1982, appellee was sentenced to concurrent fifteen year prison terms on each count.

Based upon the foregoing circumstances, the trial court ruled that when the issue of competency is raised Rule 3.210, et seq., Florida Rules of Criminal Procedure, mandates a hearing on the question of competency; that the defendant did not waive either directly or indirectly his right to a hearing by entering a plea after negotiations; and that a finding of competency cannot be made retrospectively when raised by a Rule 3.850 motion.

The trial court was undoubtedly persuaded by cases setting aside the judgment of conviction and ordering a new trial where before or during trial the trial court had reasonable ground to believe that the defendant was incompetent. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Lane v. State, 388 So.2d 1022 (Fla.1980); McCants v. State, 395 So.2d 278 (Fla. 1st DCA 1981). In the Drope case the court found there was sufficient indicia of incompetency to require the trial court to suspend trial pending a psychiatric examination, and ruled that the defendant’s due process rights could not be adequately protected by merely remanding for a nunc pro tunc determination of whether defendant was in fact competent at the time of his trial approximately six and one-half years earlier. The court stated: “Given the inherent difficulties of such a nunc pro tunc determination under the most favorable circumstances, ... we cannot conclude that such a procedure would be adequate here_ [citations omitted].”

We conclude that neither Drope v, Missouri nor decisions from the Florida courts support a per se rule requiring a new trial for failure to hold a competency hearing, regardless of the circumstances. The above quoted language from Drope has been interpreted as “not meant to be a per se rule, .... ” United States ex rel. McGough v. Hewitt, 528 F.2d 339, 343 (3rd Cir.1975). In this respect we agree with the analysis of the court in the Hewitt case, supra; and although we note the differing jurisdictional and procedural setting, in that Hewitt involved federal court review of state court action, the underlying issue — due process — is the same. In fact, we find certain of the circumstances present here quite similar to those in Hewitt. Although both Dr. Spruill and Dr. Wray found appellee sane at the time of the offense, and competent to stand trial, the report of Dr. Spruill discloses appellee’s claim that he had been hospitalized several times for psychiatric reasons, and the doctor found that at the time of the examination appellee was functioning in the borderline to mild range of mental retardation, and that his intellectual ability was further lowered by depression and thought disorder. Alcohol and drug abuse apparently contributed greatly to his problems. Nevertheless, both doctors concluded that appellee was competent to stand trial upon analysis using the factors set forth in Rule 3.211, Florida Rules of Criminal Procedure. Similarly, in Hewitt, the state trial court at defendant’s post-conviction hearing had before it a psychiatric report indicating the defendant was competent to stand trial. However, there were indications of mental disorder, a history of prior hospitalization, and a court-ordered commitment for sixty days for evaluation and study preceding the trial court’s acceptance of the defendant’s guilty plea. In comparison, the evidence raising the question of possible incompetency, therefore the need for an evi-dentiary hearing, was considerably stronger in Hewitt than in this case. Significantly, here as in the Hewitt case, it appears that both of the examining doctors will be present for their testimony and cross-examination at a competency hearing, since they were both present for testimony at a motion hearing before the trial court pursuant to our remand, and we would assume their continued availability, absent some suggestion to the contrary.

The facts in McCants and Lane differ so drastically from the present case that we do not feel they mandate application of the same remedy. In McCants, the defendant exhibited such bizarre behavior at the trial itself as to cast “considerable doubt” (3-95 So.2d at 278) concerning his competency at the time of trial. In Lane, the trial court denied a continuance notwithstanding the fact that none of three medical experts who testified at the continuance hearing was able to say that appellant was competent to stand trial. Lane had been found competent by only one examining physician, and that was approximately nine months previously. The Supreme Court rejected the state’s contention that this finding of competency was sufficient to support the trial judge’s ruling. “The finding of competency to stand trial made nine months prior to the hearing does not control in view of the evidence of possible incompetency presented by the experts at the hearing on the motion for continuance.” 388 So.2d 1025 (emphasis supplied). A new trial was ordered in Lane, as in McCants.

In Fowler v. State, 255 So.2d 513 (Fla.1971), the court ordered a nunc pro tunc competency hearing. The Lane opinion cites Fowler for the proposition that it is obligatory on the trial court to hold a hearing if there are reasonable grounds to believe the defendant is not competent to stand trial. 388 So.2d at 1025. The matter of whether there may be a retrospective competency determination, as ordered in Fowler, was not discussed in the Lane opinion.- This aspect of Fowler has not been overruled, modified or explained by the Florida Supreme Court, to our knowledge. We observe, however, that the state does not rely upon or even cite Fowler in its briefs in this case (although it was cited in argument below), very likely because the facts in Fowler are such that its application here is doubtful. In Fowler, the trial judge failed to order a plenary hearing, but simply entered an order of competency (in the presence of counsel for both sides), based upon his evaluation of conflicting medical reports as to the defendant’s competency to stand trial. While no conclusion may need to be drawn as to Fowler’s continued viability, we nevertheless find it significant that in the face of Fowler the Florida Supreme Court has not specifically adopted a per se rule disallowing a retrospective competency determination.

Although we agree with the trial court’s findings that the issue of competency was sufficiently raised to invoke the rule requiring a hearing, Rule 3.210, Florida Rules of Criminal Procedure, there is nothing in the record at this point, in the light of the authorities above discussed, demonstrating that the failure of the court to hold a competency hearing before accepting appellant’s plea necessarily mandates setting aside his conviction and granting a new trial. There is no evidence of conduct by appellant contemporaneously with the time of trial, nor any other evidence, suggesting incompetency at the time of trial. The two doctors’ reports, prepared and filed less than six months preceding appellant’s plea, both contained findings of competency to stand trial. These circumstances distinguish the case from McCants and Lane.

Our holding is a narrow one. We simply reject the trial court’s conclusion that a determination of competency to stand trial can never be made retrospectively when the issue is raised in a 3.850 motion. Whether appellant’s pre-conviction competency can be determined retrospectively in this case has not been determined. Upon our review of the entire circumstances as they appear from the record before the trial court, we find that it does not appear as a matter of law that a retrospective determination cannot be made. The trial court should proceed with an eviden-tiary hearing, which should include the testimony of Drs. Wray and Spruill, and such other evidence as the state or defense may produce. Should the evidence presented to the trial court convince the court that a retrospective determination of appellant’s competency cannot be made with sufficient certainty to vindicate appellant’s due process rights, then the court should so rule, set aside the conviction, and grant a new trial. On the other hand, should the court decide the issue adversely to appellant, the court should so rule and deny the motion for new trial. The party aggrieved by the trial court’s ruling may seek review in this court by the appropriate means.

REVERSED and REMANDED.

WIGGINTON and NIMMONS, JJ„ concur.


text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, ex rel., M.H., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. AV-237.
    District Court of Appeal of Florida, First District.
    March 8, 1984.

      Maureen L. McGill, Dist. Legal Counsel, Dept, of Health and Rehabilitative Services, Pensacola, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

The Department appeals a commitment order adjudicating M.H. delinquent for violating the probation terms of a previous order under which M.H. had been found in contempt, and in which adjudication of delinquency had been withheld. The act of contempt occurred when M.H. violated the provisions of a dependency order which required her to attend school and abide by a curfew. The Department contends that M.H. may not be committed to the Department and placed in a residential facility based upon an adjudication of delinquency founded upon a finding of contempt for violation of a court order adjudicating a child dependent. We find that under our prior case law the Department’s contention is correct. We therefore reverse.

Because of her truant and runaway behavior, the court determined M.H. to be a dependent child, placed her under the supervision of the Department, and required her to attend school and abide by a curfew. M.H. subsequently ran away from home and missed several days of school. Upon motion of the Assistant State Attorney, pursuant to Section 39.412, Florida Statutes (1981), the court found M.H. in contempt, withholding adjudication of delinquency, and placing her in community control with the requirement that she attend school and abide by a curfew. When M.H. failed to abide by a curfew and absconded, the trial court entered an order revoking community control, adjudicating M.H. delinquent, and committing her to the Department for an undetermined time.

The State contends that this case is controlled by A.O. v. State, 433 So.2d 22, 23 (Fla. 3rd DCA 1983), review pending, No. 63,974 (Fla. July 18, 1983), in which the Third District Court of Appeal held that a juvenile may be adjudicated delinquent based upon a finding of contempt for violating a condition of a previous order adjudicating him dependent and requiring him to attend school. However, A.O. v. State conflicts with an earlier decision of this court in J.M.J. v. State, 389 So.2d 1208 (Fla. 1st DCA 1980), in which this court held that since certain acts (such as those committed by M.H.) are specifically designated as acts of dependency under Florida’s Juvenile Justice Act (Section 39.01(9)), they should be consistently treated as acts of dependency, not delinquency, the provisions of Section 39.01(8) notwithstanding.

In J.M.J., this court did not reach the question of the trial court’s inherent power to punish a juvenile for contempt outside the ambit of the juvenile statutes. Subsequently, in R.M.P. v. Jones, 392 So.2d 301 (Fla. 1st DCA 1980), affd 419 So.2d 618 (Fla.1982), this court held that a dependent child could be held in indirect criminal contempt for failure to abide by the trial court’s order prohibiting associations with certain children and runaway behavior. Notably, though R.M.P. was found guilty of indirect criminal contempt and placed in a detention facility for forty days, she was not adjudicated delinquent.

Although the result in R.M.P. seems on first impression to be at odds with our decision in J.M.J., the two cases are distinguishable. On appeal, R.M.P. contended that the act committed by her (running away) which led to the contempt finding was an act of dependency under the provisions of Chapter 39 and could not support a finding of criminal contempt, citing J.M.J. The Supreme Court disagreed, finding that in J.M.J., it was clear the trial court had used “Chapter 39 mechanisms” to deal with J.M.J.’s behavior, whereas R.M.P. had been sentenced not for being a runaway but for being a criminal contemnor. Since R.M.P. had not been found in contempt under Chapter 39, the court observed, the punishment options available to the trial court were not limited by those in Chapter 39. R.M.P., 419 So.2d at 620.

The Supreme Court’s decision in R.M.P. leaves intact the holding of J.M.J. that persistent runaway and truant behavior shall be treated as acts of dependency, rather than delinquent behavior based upon a finding of contempt for failure to abide by a previous order prohibiting runaway and truant behavior.

Following the principles of stare decisis, we decline to recede from J.M.J., and for that reason must reject the holding of the Third District Court of Appeal in A.O. v. State.

Accordingly, the trial court’s order adjudicating M.H. delinquent is REVERSED.

WIGGINTON and NIMMONS, JJ., concur.

      . Section 39.413, Florida Statutes (1981), permits the Department, as legal custodian of M.H., to pursue this appeal of the trial court’s order.

      . Section 39.412, Florida Statutes (1981), provides as follows:
      The court may punish for contempt any person interfering with the administration of or violating any provision of this part or order of the court relative thereto.

      .An adjudication of delinquency may be predicated upon a finding of contempt of court. Section 39.01(8), Florida Statutes (1981).

      . The trial court declined to adjudicate R.M.P. delinquent, citing this court’s decision in J.M.J.


author: BARFIELD, Judge.

text:
    DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Florida Association of Home Health Agencies, Inc., and Gulf Coast Home Health Services, Inc., Appellants, v. JOHNSON AND JOHNSON HOME HEALTH CARE, INC., Appellee.
    No. AV-441.
    District Court of Appeal of Florida, First District.
    March 8, 1984.

      James M. Barclay, Tallahassee, for appellant-HRS.
    Leonard A. Carson and Michael M. Parrish of Carson & Linn, Tallahassee, for appellant-Florida Ass’n and Gulf Coast.
    John Radey and Elizabeth W. McArthur of Holland & Knight, Tallahassee, for ap-pellee.
   BARFIELD, Judge.

The issue on this appeal from an administrative order is the validity of Rule 10-5.-ll(14)(a) and (b) which prescribes a threshold requirement for issuance of a certificate of need (CON) to a home health care provider that each existing provider within the service area must be seeing an average of 300 patients per day according to the census of the last calendar quarter. Two exceptions to this requirement are provided when existing agencies are unable to provide service or when the new agency would foster cost containment for all providers in the health service area.

The hearing officer declared the rule invalid, finding that it was arbitrary, inconsistent with statutory criteria (section 381.-494(6)(c), Florida Statutes) for evaluating certificate of need (CON) applications, and was adopted without compliance with the notice and filing requirements of section 120.54, Florida Statutes. We affirm on the bases of arbitrariness and statutory inconsistency.

Johnson and Johnson Home Health Care, Inc. (Johnson) filed an application with the Department of Health and Rehabilitative Services (HRS) for a certificate of need to establish and operate a new home health agency in Hillsborough, Manatee, Pasco and Pinellas Counties. HRS denied the application because all home health agencies in the proposed service area had not reached a daily census average of 300 patients for the immediately preceding calendar quarter and neither exception to the rule of 300 had been met by Johnson.

The predicate for initially adopting the rule was the explanation from the existing providers in the industry that an agency operates with optimum administrative efficiency up to a patient level of 300. This rule does not measure quality of service or whether need is being met. The exception that existing agencies are unable to provide service does not allow for a situation where existing agencies are able but unwilling to provide services of a particular type or for a particular class of patients. It may be that HRS has interpreted “unable” to mean “unwilling”; however, it remains arbitrary if HRS has a choice. The exception for fostering cost containment for all providers is not supported by any data before HRS when it considered the rule and is uncertain in its meaning as to what providers are included. The stated purpose of the rule was to halt the proliferation of home health agencies. The record before the hearing officer showed that the rule of 300 was designed to protect' the existing industry from competition. There is no reasonable relationship shown between the prohibition of the rule and the health, morals, safety or welfare of the public. The rule is arbitrary and capricious and cannot stand. Agrico Chemical Company v. State of Florida Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978).

Section 381.494(6)(c), Florida Statutes (1983), sets out criteria for evaluating CON applications, including the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization, and adequacy of like and existing health care services; probable economies and improvements in service that may be derived from operation of joint, cooperative, or shared health care resources; the need for special equipment and services; availability of resources; the financial feasibility of the proposal; and the probable impact of the proposed project on the costs of providing health services. The hearing officer correctly concluded that the rule of 300 precluded a balanced consideration of all the statutory criteria. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981), cert. den., 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981). The rule allows HRS to ignore some statutory criteria and emphasize others, contrary to the legislative purpose it is supposed to implement. The rule exceeds delegated legislative authority. Farmworker Rights Organization, Inc. v. State of Florida Department of Health and Rehabilitative Services, 430 So.2d 1 (Fla. 1st DCA 1983).

It is not necessary for us to consider other issues raised on the appeal.

AFFIRMED.

MILLS and WENTWORTH, JJ„ concur.