author: HENDRY, Judge.

text:
    WALTER E. HELLER & COMPANY SOUTHEAST, INC., Appellant, v. Petition of B.W. WILLIAMS, Jr., Acting Tax Collector of Dade County, Florida, Appellee.
    No. 82-1271.
    District Court of Appeal of Florida, Third District.
    April 3, 1984.
    Rehearing Denied June 8, 1984.

      Britton, Cohen, Kaufman and Schantz and John L. Britton and J. Robert Olian, Miami, for appellant.
    Robert A. Ginsberg, County Atty., and Thomas Goldstein and Robert Krawcheck, Asst. County Attys., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

This is an appeal from an order of the Circuit Court in and for Dade County, Florida, denying the claim of the appellant to an interest in certain property and adjudging said property to be subject to levy and seizure by the Tax Collector for unpaid ad valorem personal property taxes which were due and owing to Dade County, as the taxing authority.

The issue presented is whether the County has a superior right to enforce the collection of unpaid personal property taxes against property allegedly owned by the delinquent taxpayer but which is subject to a creditor’s prior recorded lien or security interest. The trial court concluded the county’s right to enforce its tax was paramount. However, after thorough consideration of the issue in light of the briefs and arguments of counsel and the applicable law, we conclude otherwise. In our view the county’s lien for taxes was not, under the facts of this case, entitled to priority as against the claim of the secured creditor whose lien was first in time.

The facts, as reflected by the record, are as follows. In September, 1980, B.W. Williams, Jr., as Acting Dade County Tax Collector (Tax Collector), caused to be filed in the circuit court in accordance with section 197.086, Florida Statutes (1979), a “Petition for Order Ratifying and Confirming Issuance of Delinquent Personal Property Tax Warrants” with respect to unpaid personal property taxes for the year 1979. The petition referenced a list of delinquent taxpayers for that year, which list included an apparel manufacturer and its subsidiary, Bodin Apparel, Inc./Giamo, Inc. (Bo-din). It was recited in the petition that in April, 1980 the tax collector had advertised, pursuant to statute (§ 197.062, Fla.Stat. (1979)), the list of delinquent 1979 taxpayers and amounts of tax due and now sought to collect said taxes by the issuance of a multiple warrant providing for the levy upon and seizure of such tangible personal property as determined necessary by the tax collector, to be effected by means of a separate warrant applicable to a particular delinquent taxpayer. On October 23, 1980 the circuit court entered its order authorizing the issuance of individual warrants and levy and seizure of so much of the tangible personal property of each of the taxpayers described on the 1979 delinquent personal property tax list as was necessary to satisfy the unpaid taxes. The order further provided for retention of the court’s jurisdiction to hear such timely objections of taxpayers to the levy and seizure of their tangible personal property as might be warranted under the statutes and laws of this state and, in the event of such objection, prohibited levy and seizure of the taxpayer’s personal property without prior leave of court.

The court file below reflects that on July 10, 1981 the Tax Collector filed a motion to authorize the issuance of supplemental tax warrants for collection of delinquent ad valorem personal property taxes due from Bodin for the years 1979 and 1980, totalling some $160,213.36. Pursuant to section 197.086, Florida Statutes (1979), the warrants were sought to issue against Republic Textile Equipment Co. of South Carolina, Inc. (Republic) and against Paul and Felice Dubin and Heller based upon the following facts alleged by the Tax Collector.

In November, 1979 Bodin had collateral-ized loans from Heller with all of its personal and real property and all of its present and future accounts receivable, which accounts were at the time of the petition being received by Heller through lock boxes at Southeast First National Bank of Miami (Southeast Bank). As to said accounts receivable, the Tax Collector asserted a superior lien for payment of the delinquent taxes, pursuant to section 197.-056(1), Florida Statutes (1979). Additionally, it was alleged that on or about June 17, 1980 Bodin sold the bulk of its tangible personal property — equipment used in its clothing manufacturing business — to Republic for $1,000,000, subject to the security interest of Heller in the property, and that Republic still owed money to Bodin for same. Thus it was alleged that Republic was a debtor of Bodin subject to the issuance of a tax warrant under section 197.-086(2), Florida Statutes (1979), to the extent of the indebtedness. Finally, it was stated that on or about October 24, 1980 Bodin sold part of its real property located in Dade County to Paul and Felice Dubin and took back two promissory notes in the amounts of $100,000 and $215,000, which had been duly recorded and which obligation allegedly subjected the Dubins to the issuance of tax warrants under section 197.086(2).

On July 30, 1981 the court entered its order on the motion to issue supplemental tax warrants, declaring that a tax warrant should issue against the Dubins, as debtors of Bodin, to the extent of such indebtedness and in the mode and manner of then present payments until Bodin’s delinquent taxes were paid in full, and further providing that no warrant should then issue against Heller but that a warrant might issue against Southeast Bank with Heller free to present any challenge as to priority at such time.

By way of response, the Dubins asserted that the two promissory notes in question had been assigned by Bodin to Heller on October 24, 1980 and that an issue of priority might thus arise and therefore the Du-bins, as “garnishees” under section 197.-086(2), Florida Statutes (1979), sought a determination from the court as to whom payment should be made. Shortly thereafter, Heller filed its claim to the debt sought to be levied upon. Heller alleged that because of the assignment to it of the notes in accordance with the provisions of its recorded security interest and financing agreements with Bodin there were no monies due Bodin on said notes between the time of the service of the tax warrant on the Dubins and their response — the applicable period under the garnishment statute, section 77.06(1), Florida Statutes (1979)— and therefore “garnishment” under section 197.086(2) was improper and the debt should be paid to Heller.

A hearing was held before the court on the above objections and claim on November 23, 1981. The Assistant County Attorney representing the Tax Collector stated by way of background that the county discovered during its efforts to collect Bodin’s delinquent taxes that almost all of the equipment on which the taxes were due had been removed from Dade County and that certain equipment had been released to Republic based on a pro rata share of the taxes owed, a very small amount of money, paid by Republic to secure its release. He further stated that because it was discovered that two tax bills had been mislaid, the full amount of taxes owed by Bodin for 1979 and 1981 was some $300,000 (the affidavit on file specified the amount of such taxes as $313,768.81), not as stated initially some $160,000. The Tax Collector learned that in conjunction with a financing arrangement involving loans of some $7,000,000, Heller had acquired a security interest in all of the equipment and other personal and real property of Bodin as well as its accounts receivable. On November 1, 1979 Heller filed standard U.C.C. financing statements, which were recorded on that date, covering essentially all tangible and intangible property of Bodin, present and future accounts receivable and contract rights, and real property of Bodin. Accounts financing security agreements were executed by Bodin in favor of Heller on October 30, 1979.

The Tax Collector became aware of further dealings between Heller, Bodin and Republic in May and June, 1980. At that time, in what was described as essentially a paper transaction, Heller loaned $1,000,000 to Republic who in turn paid this sum to Bodin for its equipment which Republic was to sell, for a commission, for Heller. The proceeds to Bodin served to reduce its debt to Heller'. Based on the foregoing facts, the Tax Collector sought the supplemental tax warrants against the Dubins and Bodin’s accounts receivable being received by Heller through lock boxes at Southeast Bank.

Counsel for Heller took the position at the hearing that under section 197.086, Florida Statutes (1979) the question presented was strictly one of priorities and Heller’s claim had priority since Bodin’s assignment of the Dubin mortgage to Heller on October 24, 1980 was prior in time to the service of the supplemental tax warrant on the Dubins on July 30, 1981. The transaction was explained thusly: Heller, who previously had a mortgage on the Bo-din real property in question which secured a promissory note for about $2,000,000, executed a partial release of its mortgage in order to allow Bodin to sell the property to the Dubins and when Bodin sold the property to the Dubins, they gave a mortgage back to Bodin who simultaneously assigned the mortgage to Heller, for valuable consideration, all of this occurring in October, 1980, well before the service of this tax warrant.

The Tax Collector’s legal position was, and is, that under section 197.056, Florida Statutes (1979), the county is granted a superior lien for its taxes upon all of the personal property of the taxpayer, which lien may be enforced by levy and seizure upon personal property of the taxpayer, including debts owed to the taxpayer, regardless of the interests of prior creditors therein. Heller’s counsel’s response was that the county had a first lien only upon the specific property taxed and a secondary lien on other personal property of the taxpayer. Assertedly, the lien on such other personal property was established by the service of the tax warrant, which, acting with the same force as a writ of garnishment, was subject to Heller’s prior recorded security interest in Bodin’s accounts receivable and to the assignment to Heller of the Dubin notes and mortgage. Counsel for the respective parties offered to stipulate to the facts since they were essentially in agreement. However, counsel for the Tax Collector next stated that an extensive factual determination and jury trial might be necessary if the court ruled the county was not entitled to its taxes, in which event the Tax Collector would allege Heller’s assignment did not defeat its right to the taxes because Heller had not acted in good faith. At the conclusion of the hearing the court requested memoranda covering every point of law that attached to the cause of action. Memoranda and reply memoranda were presented and the case was submitted to the court for ruling on the Tax Collector’s petition. Also filed for consideration by the trial court were affidavits in support of Heller’s claim and the depositions of two Heller employees.

On April 29, 1982 the court entered its order summarily denying Heller’s claim to the debt due by the Dubins on the two promissory notes and adjudging that Dade County was entitled to the installment payments on the notes until the delinquent taxes were paid in full. Following denial of its motion for rehearing, Heller took this appeal.

At the outset of our discussion, we agree with Heller’s contention on appeal that since the proceeds of the Dubin notes were not the specific property assessed, the Tax Collector’s efforts to enforce the lien for ad valorem personal property taxes are governed by and restricted to the procedures set forth in section 197.-086. While it is clear that under section 197.056(1), liens for these taxes arose on January 1, 1979 and January 1, 1980 and attached to all the personal property of Bodin on those dates, it is additionally clear that the property, or rather the debt, in question was not subject to attachment on said dates. First, the superior lien for taxes established by section 197.056(1) is restricted to the particular class of property assessed — personal property. The source of the debt owed by the Dubins to Bodin was real property, which, although it was owned by Bodin on the dates on which the taxes accrued, was not subject to the lien for taxes because the language of section. 197.056(1) restricts the lien to personal property of the taxpayer. Second, even if the tax lien were properly established as against the Dubins’ obligation to Bodin on the notes, the nature of such a lien would be not a “superior” lien, but rather, a general lien which would be subject to prior perfected liens of creditors of the delinquent taxpayer. See cases cited, infra, p. 532. The language of section 197.056(1) establishes that the county has a “superi- or” lien for unpaid personal property taxes only upon the specific personal property assessed for taxes, which lien attaches to that property on January 1 of the tax year for taxes assessed on that date.

In reaching the conclusion that the county’s lien for unpaid taxes which it sought to enforce by the instant proceedings against debtors of the delinquent taxpayer Bodin was a general lien not entitled to priority over Heller’s prior recorded lien we have considered the facts presented by the record, the arguments of counsel, and the other applicable law, as determined by reading the provisions of the relevant statutes in pari materia and additionally, by referring to the case law, particularly from other jurisdictions where similar questions have arisen, since the precise issue is one of first impression in this state.

The cases which set forth the applicable principles of law in this area were decided in the earlier part of this century and construe the personal property tax laws of several other jurisdictions which are similar enough to our own Florida statutes to assist in our interpretation of the relevant provisions thereof. In Scottish American Mortgage Co. v. Minidoka County, 47 Idaho 33, 272 P. 498 (1928), the Idaho supreme court considered a statute which provided that a tax on migratory livestock was a lien on all other personal and real property of the person assessed. The court applied the settled rule that a construction rendering a statute of doubtful constitutionality will not be adopted if another construction is available and concluded that while the statute provided the lien of taxes was a first lien upon the personal property assessed, it was a lien only on the then existing interest of the taxpayer in any other (e.g., real) property and was not superior to an incum-brance (a mortgage which had been foreclosed) on such other property theretofore created by its owner. Restriction of freedom to contract, specifically, to mortgage one’s (real) property, was cited as a basis for the construction reached of the statute.

The issue of the priority of a tax lien as against property other than that assessed for taxes was also considered by the high courts of several other northwestern states in the 1920’s and ’30’s. In Lyman County, S.D. v. Scott, 68 N.D. 596, 281 N.W. 902 (1938); and Owens v. Oregon Livestock Loan Co., 151 Or. 63, 47 P.2d 963 (1935), cited by appellant, the courts ruled that only personal property which belonged to the tax debtor at the time of the distraint could be seized under a tax lien. The South Dakota supreme court in Scott explained that the statutory remedy of “dis-traint” “is the taking of a chattel from the possession of a wrongdoer or obligor to enforce the performance of an obligation ... It does not authorize the taking of property of one person to satisfy the debt of another.” Id. 281 N.W. at 906. In Owens, the Oregon supreme court, citing the need for a practical construction of the statute, explained that the statutory lien against other property of the tax debtor may be extended only in accordance with statutory proceedings which authorize seizure and only upon personal property of the person charged with the tax.- Such a lien was referred to as “floating and inchoate” and “effective upon such other personal property only upon a seizure or distraint [thereof].” Id. 47 P.2d at 968. The court observed that the “distraint is ineffective unless the property [seized] belongs to the tax debtor at the time of the distraint. The fact that it belonged to the tax debtor at the time the tax was levied is immaterial if it now belongs to someone else.” Id. at 967.

In Raymond v. King County, 117 Wash. 343, 201 P. 455 (1921) (en banc), the court wished to avoid an interpretation of the statute contended for, whereby the lien extended against other property of the taxpayer, if enforced against such property in the hands of another, “might cause a chattel, by mere sales and deliveries [to be] charged with a constantly increasing burden.” Id. 201 P. at 455. The rule of construction applied was stated as follows:

Manifestly, we think, had it been intended that the levy could be made upon any property the person charged with the taxes at any time owned while so charged, it would have been so stated in express terms, and the specific provisions prescribing upon what property the levy should be made would not have been so framed as to exclude the idea.

Id. at 456. An analogous case involving a state’s right to enforce collection of a tax on dividends of a railroad company under a statute providing such tax was a lien on other personal and real property of the railroad company was decided by the Second Circuit Court of Appeals in 1911. Central Trust Co. of New York v. Third Ave. R. Co., 186 F. 291, 292 (2d Cir.), cert. denied sub nom People of the State of New York v. Central Trust Co., 223 U.S. 721, 32 S.Ct. 523, 56 L.Ed. 629 (1911). Therein, the court recognized that “taxes due the state have no priority of payment out of a fund in court for distribution, unless the priority was expressly given by statute, or unless the fund has come into court impressed with a priority for the tax.”

Thus, the general rule expressed by the foregoing authorities is that the state’s right to impose and collect taxes, although derived from its authority as a sovereign, is solely statutory in expression and is limited by the terms of the statutes authorizing the tax and governing its collection. Furthermore, .statutes imposing the lien for personal property taxes as a general lien upon other property of the taxpayer have been held not to displace prior contract liens. See cases cited, supra.,

The single Florida case which has addressed this issue is City of Marianna v. Russ, 114 Fla. 624, 154 So. 317 (1934). The Florida supreme court therein considered a special act which made the city’s lien for personal property taxes a lien against real property owned by the taxpayer. The court first determined that the city’s tax lien would not, in any event, prevail over a prior mortgage lien on the taxpayer’s real property where the tax liens were established prior to enactment of the statute which extended the lien against such real property. As to the issue of priority, the court stated that

while [the statute] provides taxes on personal property shall be and constitute a lien on real estate of the owner of the [taxed] personal property, there is not attempted legislative pronouncement that such lien on real estate for the tax on personal property shall be superior to all other liens.

Id. 154 So. at 321. Thus, the decision aligns Florida with other jurisdictions which follow the rule of strict statutory construction and give “the lien of taxes priority over senior incumbrances, if at all, only upon the property itself upon which the tax was levied.” Scottish American Mortgage Co. v. Minidoka County, supra, 272 P. at 500. Our construction of the relevant Florida statutes further supports this determination.

The Tax Collector has contended that under section 197.056(1), Florida Statutes (1979), the county’s tax liens attached to all of Bodin’s property as of January 1, 1979 and January 1, 1980 and the assignment after those dates of monies due and owing to the taxpayer in the future should not serve to defeat the' payment of delinquent taxes. In our view, this position ignores the clear import of the language of section 197.056(1) and the other relevant statutes, in particular, section 197.086, Florida Statutes (1979), construed as a whole and in their historical context.

The history of the enactment of sections 197.056 and 197.086 is germane in our attempt to construe these sections inasmuch as they present an ambiguity as to the nature of the tax lien created upon other personal property of the taxpayer. Section 197.056 was enacted in 1972, as Chapter 72-268, section 1, Laws of Florida. The first sentence of subsection (1), stating “All taxes shall be a first lien, superior to all other liens, on any property against which the taxes have been assessed..[,]” was derived from former section 197.011, Florida Statutes (1971), which was in turn derived from former section 192.21, Florida Statutes (1967). The latter part of the second sentence of section 197.056(1), stating, “All personal property tax liens, to the extent that the property to which the lien is applicable cannot be located in the county or to which the sale of the property is insufficient to pay all delinquent taxes, interest, fees and costs due, shall be liens against all other personal property of the taxpayer within that county [,] ” (e.s.), was derived from former section 197.015, Florida Statutes (1971), which carried forward the identical language of former section 200.02, Florida Statutes (1967). Section 197.015 and its predecessor section 200.02, in addition to providing that “[a]ll tangible personal property taxes shall be a lien on all the personal property of the taxpayer in the county in which they are assessed from January 1 of the year the property is liable for assessment[,]” continued, “The lien of tangible personal property taxes shall be superior to all other liens...” The omission from section 197.056(1) of this language suggesting a superior lien on all personal property of the taxpayer, and the addition of the qualifying language providing under what circumstances the tax liens would extend to other personal property of the taxpayer (i.e., “to the extent that the property to which the lien is applicable cannot be located in the county or to which the sale of the property is insufficient to pay all delinquent taxes... ”), are indicative of the legislative intent to restrict the superior lien for taxes to the specific property assessed.

Florida law follows the general rule that taxes can be levied, assessed and collected only in the manner ordained by statute. Maas Brothers, Inc. v. Dickinson, 195 So.2d 193 (Fla.1967); State ex rel. Seaboard A.R. Co. v. Gay, 160 Fla. 445, 35 So.2d 403 (1948); see City of Marianna v. Russ, supra; Art. VII, § 1(a), Fla. Const. Additionally, the Florida cases recognize that tax statutes which are ambiguous are to be construed most strongly against the government and liberally in favor of the taxpayer or citizen. Harbor Ventures, Inc. v. Hutches, 366 So.2d 1173 (Fla.1979); State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So.2d 381 (Fla.1958); State ex rel. Tampa Electric Co. v. Gay, 40 So.2d 225 (Fla.1949). Applying these rules of statutory construction to section 197.-056(1), in light of its prior history, strengthens our belief that this section, which alone creates and perfects the lien for unpaid taxes, Op.Atty.Gen. of Fla. 076-36 (Feb. 18, 1976), does not expressly constitute such lien as “superior” in regard to other personal property owned by the taxpayer on the date the taxes accrue and the lien arises, January 1 of the tax year.

We turn next to the “enforcement” provision of the statutes, section 197.086, and Heller’s contention that since the (proceeds of) the notes were not the specific property assessed for taxes, the Tax Collector’s efforts to enforce the tax lien against this debt allegedly owed to the taxpayer are governed by and restricted to the procedures outlined in this section. Section 197.086(1) sets forth .the procedural steps to be followed by the tax collector in the collection of delinquent personal property taxes, culminating in the issuance of an order of court “directing the tax collector or his deputy to levy upon and seize so much of the tangible personal property of the taxpayers who are listed in the petition as is necessary to satisfy the unpaid taxes[,]” with the court retaining jurisdiction “to hear such objections of taxpayers to the levy and seizure of their tangible personal property as may be warranted under the statutes and laws of this state.” In this case the Tax Collector properly followed these statutory procedures to enforce the tax, having determined, as contemplated by section 197.056(1), that “the property to which the lien is applicable [could not] be located in the county” and further, that the amount of money paid by Republic, as the purchaser of the taxed property which bore the superior tax lien was “insufficient to pay all delinquent taxes, ...” Entry of the court’s order on July 30, 1981 authorizing the issuance of the supplemental tax warrant for the 1979 and 1980 personal property taxes of Bodin as against the Dubins based on their debt owed to the delinquent taxpayer set the stage for the invocation of the procedures of section 197.086(2), referred to by the parties as a “garnishment” proceeding.

The legislative history of section 197.086 demonstrates that the procedures detailed in subsection (1) of petitioning the court for issuance of an order directing levy and seizure were added in 1975, Ch. 75-136, § 3, Laws of Fla., according to the statute, to “safeguard the constitutional rights of the taxpayer...” These procedural safeguards are a prerequisite to levy and seizure by the tax collector upon personal property of the taxpayer under subsection (1), and to levy by tax warrant “having the same force as a writ of garnishment” upon debtors or those holding personal property of the taxpayer, under subsection (2). In the instant case, the Tax Collector sought to enforce collection of Bodin’s delinquent personal property taxes by supplemental warrant issued against the Dubins, as authorized by the court’s order of July 30, 1981.

Application of the plain meaning of the language of section 197.086(2), further leads us to conclude that the Tax Collector’s attempt to enforce the lien for delinquent personal property taxes against the proceeds of the Dubins’ promissory notes must fail. It is undisputed that these notes were assigned to Heller for valuable consideration on October 24, 1980, some nine months prior to entry of the order authorizing issuance of a supplemental tax warrant against the Dubins based upon the debt evidenced by the notes. It is additionally clear from the statute that the tax lien could be established against the property or debt involved sub judice only by service of the warrant upon the third-party (debtor of the taxpayer). The warrant may reach, and the lien attach to, only such debt as was owed to the taxpayer (Bodin) by the third-party (Dubins) at the time the warrant was served. This construction is supported by the case law regarding strict construction of tax statutes previously discussed herein.

In reaching this conclusion, since the warrant is to have the “same force as a writ of garnishment,” we have additionally referred to the language of the applicable garnishment statute, section 77.-06, Florida Statutes (1979), which states:

(1) Service of the writ shall make garnishee liable for all debts due by him to defendant and for any tangible or intangible personal property of defendant in his possession or control at the time of the service of the writ or at any time between the service and the time of his answer, (e.s.)

Sub judice, it is clear that neither at the time of service of the supplemental warrant upon the Dubins on July 30, 1981, nor between said date and the time of their answer filed on July 31, 1981, were the Dubins indebted to the delinquent taxpayer, Bodin. Thus, the warrant could not properly serve to “garnish” this debt. Such a garnishment under these facts would result in the payment of delinquent taxes with funds not those of the delinquent taxpayer which result, as discussed supra, n. 6, should be avoided.

Finally, we find that there is an additional basis in the statutes and the law which refutes the Tax Collector’s claim to a superior lien upon the property or debt in question. Section 197.106, Florida Statutes (1979) provides, in pertinent part, as follows:

197.106 Sale of tangible personal property after seizure.
(3) If the property levied upon cannot be located in the county or is sold for less than the amount of taxes, delinquent charges, interest, costs and collection fees, the deficit shall be a general lien against all other personal property of the taxpayer situated in the county. * * * (e.s.)

The language of the parallel rule of the Florida Department of Revenue, set forth as Rule 12D-12.il, Fla.Admin.Code, is also instructive and may properly be considered since it accords with the statutory provision. The Rule states that “[i]f the sale of the personal property assessed is insufficient to pay all delinquent taxes, interest, fees and costs due, then the lien shall attach to other personal property of the taxpayer in the county.” (e.s.) The language of both the statute and the rule, considered together, makes clear that the lien for taxes attaches as a general lien to other property of the tax debtor upon the determination of deficiency referred to therein.

The well-established rule governing priority of lien interests is “the first in time is the first in right.” United States v. City of New Britain, 347 U.S. 81, 85, 74 S.Ct. 367, 370, 98 L.Ed. 520, 525-526 (1954); United States v. Atlantic Municipal Corp., 212 F.2d 709 (5th Cir.1954); United States v. First Federal Savings & Loan Ass’n, 155 So.2d 192 (Fla. 2d DCA 1963); Richardson Tractor Co. v. Square Deal Machinery & Supply Co., 149 So.2d 388 (Fla. 2d DCA 1963). Cf. Department of Revenue v. Potamkin Dodge, Inc., 442 So.2d 287 (Fla. 3d DCA 1983) (because Dept, failed to perfect, by warrant, its lien for sales taxes, it was a general creditor, with no prior claim on funds deposited in court registry); Sun First National Bank of Orlando v. Miller, 397 So.2d 943 (Fla. 1st DCA 1981) (Dept. of Revenue, which became lien creditor of debtor before bank perfected its security interest in two vehicles of debtor, took priority under § 679.-310, Fla.Stat. (1977)). Furthermore, as for a lien created by state law, its priority depends “on the time it attached to the property in question and became choate.” United States v. City of New Britain, supra, 347 U.S. at 86, 74 S.Ct. at 370, 98 L.Ed. at 526. The federal rule is that state tax liens are perfected in the sense that there is nothing more to be done to have a choate lien when the identity of the lienor, the property subject to the lien, and the amount of the lien are established. United States v. Pioneer American Insurance Co., 374 U.S. 84, 83 S.Ct. 1651, 10 L.Ed.2d 770 (1963). Under these principles, Heller’s lien, having attached on or about November 1, 1979 (the date of filing of its U.C.C. financing statement), to all property, accounts receivable and other financial obligations owed to Bodin, must prevail since it was prior in time to the Tax Collector’s general lien which attached to the property in question upon service of the supplemental warrant on July 30, 1981.

In conclusion, it should be noted that the Tax Collector has framed its arguments on appeal so as to raise the issue of fraud on the part of Heller relative to the removal from the county of Bodin’s equipment which was subject to the lien for taxes. Heller has responded that the issue goes outside of the pleadings in the trial court. We find that the issue was properly before the trial court as it was raised in the parties’ arguments and memoranda of law, as well as in the proofs submitted, particularly the depositions of the two Heller employees. However, it is not possible to determine from the trial court’s summary ruling adverse to Heller’s claim whether or not the court decided if Heller’s actions somehow constituted fraud so as to bar its right to assert its lien interest on the property in question. We have carefully considered this issue, as presented in the briefs and the record before the trial court, and have concluded that the record fails to establish fraud on the part of Heller.

In accordance with the foregoing reasons and authorities, the trial court’s order denying Heller’s claim to the property in question is reversed.

Reversed.

      . 197.086 Delinquent personal property taxes; warrants; court order for levy and seizure of personal property; seizure; fees of tax collectors.—
      (1) Prior to May 1 of each year immediately following the year of assessment, the tax collector shall prepare a list of the unpaid personal property taxes containing the names and addresses of the taxpayers and the property subject to the tax, as the same appear on the tax roll. Prior to April 30 of the next year, the tax collector shall prepare warrants against the delinquent taxpayers providing for the levy upon, and seizure of, tangible personal property. Within 30 days from the date such warrants are prepared, the tax collector shall cause the filing of a petition in the circuit court for the county in which the tax collector serves, which petition shall briefly describe the levies and nonpayment of taxes, the issuance of warrants, and proof of the publication of notice as provided for in s. 197.062, and shall list the names and addresses of the taxpayers who failed to pay taxes and the personal property taxed, as the same appear on the assessment roll. Said petition shall pray for an order ratifying and confirming the issuance of said warrants and directing the tax collector or his deputy to levy upon and seize the tangible personal property of each delinquent taxpayer to satisfy the unpaid taxes set forth in the petition... Immediately upon the filing of said petition, the tax collector, through his attorney, shall request the earliest possible time for hearing before the circuit court on said petition, at which hearing the tax roll shall be presented and the tax collector or one of his deputies shall appear to testify under oath as to the nonpayment of the personal property taxes listed in the petition. Upon the filing of said petition, the clerk of the court shall notify each delinquent taxpayer who is included within the petition that a petition has been filed and that upon ratification and confirmation of the petition the tax collector shall be authorized to issue warrants and levy upon, seize, and sell so much of the personal property as to satisfy the delinquent taxes, plus cost, interest, attorney’s fees, and other charges. Said notice shall be by certified mail, return receipt requested. If it shall appear to the circuit court that the taxes as appear on the tax roll are unpaid, the court shall issue its order directing the tax collector or his deputy to levy upon and seize so much of the tangible personal property of the taxpayers who are listed in the petition as is necessary to satisfy the unpaid taxes. The Department of Revenue shall provide reasonable rules and regulations to guide the tax collector in the collection and enforcement of taxes which are delinquent or which may become delinquent. This proceeding is specifically provided to safeguard the constitutional rights of the taxpayers in relation to their tangible personal property and to allow the tax collector sufficient time to collect said delinquent personal property taxes before the filing of petitions in the circuit court as provided and shall be conducted with these objectives in mind. The court shall retain jurisdiction over the matters raised in the petition to hear such objections of taxpayers to the levy and seizure of their tangible personal property as may be warranted under the statutes and laws of the state.
      (2) A tax warrant issued by the tax collector for'the collection of tangible personal property taxes shall, after the court has issued its order as set forth in subsection (1), have the same force as a writ of garnishment when levied by the tax collector upon any person, firm, or corporation who has any goods, moneys, chattels, or effects of the delinquent taxpayer in his hands, possession, or control or who is indebted to such delinquent taxpayer. When any tax warrant is levied upon any debtor or person holding property of the taxpayer, the debtor or person shall pay the debt or deliver the property of the tax delinquent to the tax collector levying the warrant, and the receipt of the tax collector shall be complete discharge to that extent of the debtor or person holding the property. The tax collector shall make note of the levy upon the tax warrant.

      (emphasis supplied)

      . 197.056 Lien of Taxes.—
      (1) All taxes imposed pursuant to the Constitution and laws of this state shall be a first lien, superior to all other liens, on any property against which the taxes have been assessed, and shall continue in full force from January 1 of the year the taxes were levied until discharged by payment or until barred by chapter 95. All personal property tax liens, to the extent that the property to which the lien is applicable cannot be located in the county or to which the sale of the property is insufficient to pay all delinquent taxes, interest, fees, and costs due, shall be liens against all other personal property of the taxpayer within that county... All owners of property shall be held to know that taxes are due and payable annually and are charged with the duty of ascertaining the amount of current and delinquent taxes and paying them before April 1 of the year following the year in which taxes are assessed. * * * (emphasis supplied).
      This section was transferred by Ch. 82-226, § 31, Laws of Florida, and renumbered as section 197.0151 (Supp.1982).

      . This discrepancy is not significant, however, in light of the pertinent language of section 197.056(1), Fla.Stat. (1979), providing that
      any acts of omission or commission may be corrected at any time by the officer or party responsible for them in like manner as provided by law for performing acts in the first place, and when so corrected they shall be construed as valid ab initio and shall in no way affect any process by law for the enforcement of the collection of the tax....

      . City of St. Petersburg v. Fiore, 160 Fla. 106, 33 So.2d 852 (1948) (intention to create a tax lien or to extend it to any particular species of property must clearly appear in statute, since tax lien is solely a creature of statute); Op.Atty.Gen. of Florida 065-125 (Nov. 4, 1965) (construing predecessor section 192.21, Florida Statutes (1965) (“These statutory liens do not appear to encumber real property of the taxpayer.")

      . Cf. cases cited in n. 6, infra.

      . We note, however, that other courts have taken a broader view of the state’s authority in this area. E.g., In Re Ever Krisp Food Products Co., 307 Mich. 182, 11 N.W.2d 852, 861 (1943) (statute stating personal property tax was specific and perfected lien against all personal property of person assessed without regard to whether it continued in the hands of tax debtor constituted such taxes "a first lien superior to all other claims, encumbrances and liens whether prior or not.’’); State of Minnesota v. Central Trust Co. of New York, 94 F. 244, 249 (8th Cir.), cert. denied, 174 U.S. 803, 19 S.Ct. 883, 43 L.Ed. 1188 (1899) (“The state has an undoubted power to create a lien for a personal tax on other property of the tax debtor than that which was assessed for the tax, and to make the same superi- or to all other liens.”). See also Union Central Life Ins. Co. v. Black, 67 Utah 268, 247 P. 486 (1926) (Legislature has power to make taxes a lien on all property of owner of taxed property prior to all other liens; superior lien was inferred from general provisions of statute under rule adopted in state favoring construction giving tax liens priority over liens created by private contract.) For a discussion of these positions and other considerations involved when taxes are sought to be levied against property of the tax debtor in the hands of another see Note, "Tax Liens and the Rights of Third Persons,” 54 Harv.L.R. 112 (1940). One major consideration pointed out by the author was that
      [a]side from their constitutionality, the desirability of statutes giving a first lien on property other than that taxed is doubtful. They may in effect use one man’s property to pay another man’s debt... The possibility of such an occurrence is a serious drag on loan transactions. A recording system protects a mortgagee against liens in existence; it cannot protect him against future liens to which his claim will be subordinated. Nor can a mortgagee protect himself by a provision in the mortgage allowing foreclosure when the mortgagor defaults on any tax the non-payment of which would constitute it a prior lien on the mortgaged property; the delinquency which constitutes the default also subordinates the mortgagee’s claim to that of the state.
      Id. at 116-117.

      . See n. 2, supra, for substantially complete quotation of § 197.086(1).

      . With regard to this determination of insufficiency, we briefly dispose of Heller’s contention that the record is unclear as to what collections were made by the Tax Collector. We note that section 197.096, Florida Statutes (1979), provides, as follows:
      The tax collector shall keep a record [known as the ‘tangible personal property tax warrant register’] of all warrants and levies made under this chapter and shall note on such record the date of payment, the amount of money, if any, received, and the disposition thereof made by him.
      Thus, the tax warrant register may be referred to in any case presenting an alleged evidentiary deficiency in this respect.

      .See n. 2, supra, for substantially complete quotation of § 197.086(2).

      . We mention, in passing, that the provision of section 197.086(2), that the warrant "shall have the same force as a writ of garnishment” plainly means just that; not that the tax collection proceeding becomes a full-fledged garnishment proceeding with concomitant rights, e.g., to a jury trial.


source: Caselaw Access Project

author: GOLDMAN, MURRAY, Associate Judge. PER CURIAM. GLICKSTEIN, Judge,

license: Public Domain

text:
    DIVERSIFIED COMMERCIAL DEVELOPERS, INC., Ramblewood Plaza, William A. Joyner, Joel Bowie and Fidelity & Deposit Company of Maryland, Appellants, v. FORMRITE, INC., et al., Appellees.
    No. 82-1735.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1984.
    Rehearing Denied June 13, 1984.

      Nancy Little Hoffmann of Hoffmann & Burris, P.A., Fort Lauderdale, for appellants.
    Jesse S. Faerber of Fenster & Faerber, Plantation, for appellee.
   GOLDMAN, MURRAY, Associate Judge.

This is an appeal from an amended final judgment entered in favor of the Plaintiff below after a non-jury trial. Plaintiff sought damages from all Defendants for breach of contract, open account, unjust enrichment and imposition of an equitable lien. The trial court found that the contract had been breached and that Plaintiff was entitled to an equitable lien on the surety bond posted by Defendant Diversified. A judgment in the amount of $41,-347.00 was entered against all Defendants, together with prejudgment interest.

Defendants have raised four points on appeal. First, Defendants urge that there was no basis to support the imposition of an equitable lien; Second, that there was no proper proof of damages, and third, that it was error to award prejudgment interest.

IMPOSITION OF EQUITABLE LIEN

Plaintiff sought the imposition of an equitable lien based upon alleged material misrepresentations which caused Plaintiff to forego its statutory lien rights. There seems little dispute that such a lien arises only upon proof of misrepresentation, fraud or other affirmative deception. Largo Hospital Owners Ltd. v. International Glass & Manufacturing Co., 410 So.2d 518 (Fla. 2d D.C.A.1981); Rinker Materials Corp. v. Palmer First National Bank and Trust Company of Sarasota, 361 So.2d 156 (Fla.1978).

It is axiomatic that we are not to substitute our judgment for that of the trial judge as long as there is sufficient competent evidence to support his decision. The record discloses such evidence, and accordingly the trial court’s imposition of an equitable lien is affirmed.

DAMAGES

Defendants urge that the trial court erred in entering judgment for breach of contract since there was no proper proof of damages based on a breach of contract. We agree.

Plaintiff’s testimony was that the value of the contract work completed was $90,-720.00 plus $7,996.00 in extra work, making a total of $98,716.00. From this, Plaintiff deducted $5,821.00 as an allowance for work Defendants had to complete on the project. This left a balance of $41,347.00 which is the sum the trial court awarded as damages.

The measure of damages for a breach of a construction contract was addressed in First Atlantic Building Corporation v. Neubauer Construction Co., 352 So.2d 103 (Fla. 4th D.C.A.1977), wherein this Court stated:

“Neubauer attempted to prove its damages for breach of the contract by having its president give testimony estimating the percentage of completion of each of the buildings involved in the contract. The president testified he then added those sums together and subtracted that sum from the contract price, less the amount First Atlantic had already paid, to arrive at the sum Neubauer claimed was due it. However, such testimony is not competent evidence to prove damages for breach of a construction contract. Proper proof to support a claim for damages by a contractor against an owner for breach of contract is the contractors lost profit together with the reasonable cost of labor and materials incurred in good faith in partial performance of the contract. Poinsettia Dairy Products Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306, 104 A.L.R. 216 (1936); Ballard v. Krause, 248 So.2d 233, (Fla. 4th D.C.A.1971); 94 Fla.Jur., Damages, § 83.”

This rule was again noted by this Court in Fidelity & Deposit Company of Maryland v. Accel, Inc., 354 So.2d 424 (Fla. 4th D.C.A.1978). The proof at trial in the latter case was virtually identical to the proof presented to the trial judge below, and in reversing the damage award, this Court noted:

“The rule has been frequently stated in this jurisdiction that the measure of damages in a suit by a contractor against an owner for breach of contract when the contract has not been fully completed is either quantum meruit or the contractors lost profit together with the reasonable cost of labor and materials incurred in good faith in the partial performance of the contract.”

This rule has been adopted by our sister courts. See D.D. Jackson v. Riley, 427 So.2d 255 (Fla. 5th D.C.A.1983); Perry v. O.S.B. Construction Inc. 430 So.2d 985 (Fla. 3rd D.C.A.1983).

The evidence presented in this case failed to establish Plaintiff’s lost profits or the reasonable cost of labor and materials incurred in partial performance of the contract, and therefore the judgment must be reversed and remanded for a new trial on the issue of damages.

PREJUDGMENT INTEREST

Since this case must be retried on the issue of damages, it is necessary to address Defendants last point on appeal.

The trial judge awarded prejudgment interest from the date of default. This decision is well founded in the law of this state. In Nationwide Mutual Insurance Company v. Griffin, 222 So.2d 754 (Fla. 4th D.C.A.1969) this Court held that an award of prejudgment interest was proper even though Defendant in good faith disputed both the amount of the debt and its obligation to pay.

In Parker v. Brinson Construction Company, 78 So.2d 873 (Fla.1955) the Supreme Court noted: “This Court has long recognized that in actions ex contractu it is proper to allow interest at the legal rate from the date the debt was due... The fact that there is an honest and bona-fide dispute as to whether the debt is actually due has no bearing on the question.”

The same result " was reached by this Court in Tech Corporation v. Permutit Company, 321 So.2d 562 (Fla. 4th D.C.A.1975) and English and American Insurance Company v. Swain Groves Inc., 218 So.2d 453 (Fla. 4th DCA 1969). In the Swain case, it was stated:

“In actions ex contractu it is proper to allow interest at the legal rate from the date the debt was due. The fact that there is an honest and bona fide dispute as to whether the debt is actually due has no bearing on the question. If it is finally determined that the debt was due, the person to whom it was due is entitled not only to the payment of the principal of the debt but also to the interest at the lawful rate from the date-due thereof... Whenever a verdict liquidates a claim and fixes it as of a prior date, interest should follow from that date.”

The matter of prejudgment interest was also considered by our sister court in Posner v. Flink, 393 So.2d 1140 (Fla. 3rd D.C.A.1981), wherein it was held that in actions ex contractu, prejudgment interest is appropriately added to unliquidated damages where the trier of fact chooses to assess it.

In the action herein the date of breach is clearly ascertainable as is the amount of damage upon proper proof. The award of prejudgment interest is proper once the trial judge, upon rehearing, determines the proper amount of damages due to the plaintiff.

Accordingly, this cause is affirmed in part, reversed in part, and remanded for a new trial on the issue of damages only.

GLICKSTEIN and WALDEN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Motion for rehearing is denied.

WALDEN, J., and GOLDMAN, MURRAY, Associate Judge, concur.

GLICKSTEIN, J., concurs in part and dissents in part with opinion.

GLICKSTEIN, Judge,

concurring in part and dissenting in part.

I agree our affirmance of the trial court’s judgment was correct, but with one exception. Upon further reflection, I do not believe the date of default — September 27, 1978 — is also the correct due date for the damages.

In the original opinion we quoted English and American Insurance Company v. Swain Groves, Inc., 218 So.2d 453, 457 (Fla. 4th DCA 1969). The quoted excerpt approves assessment of prejudgment interest from the date a debt was due. I submit the date of breach and due date of damages are not automatically the same.

In a time-honored case, the Florida Supreme Court has said prejudgment interest is allowable after a demand of payment of an unsettled claim, for goods supplied or services rendered, from the time of the demand; and where the demand sued for is a money debt, from the time the debt became legally due and payable. Brite v. Orange Belt Securities Company, 133 Fla. 266, 275-76, 182 So. 892, 896 (1938).

In the instant case it cannot be said the oral contract called for all payments to fall due immediately on default. Appellee requested, by letter, following the breach, that the previously unrequisitioned balance, which it simultaneously itemized, be paid by October 10, 1978, and the retainage be paid by November 10, 1978. I would instruct the court to make prejudgment interest retroactive to November 10, 1978, on any damages up to the amount of the retainage, and to October 10, 1978, on any additional amount of damages.

      . Defendants do not contest this issue. Further, the trial court did not rule or enter judgment on the claims for open account or unjust enrichment.

      . Defendants did not argue and we find no merit in point III, that the trial court erred in entering judgment against Defendants, Bowie and Joyner, individually.


author: PER CURIAM.

text:
    UNITED OF OMAHA LIFE INSURANCE COMPANY and Tower Mortgage Corp., Appellants, v. NOB HILL ASSOCIATES, Joel F. Bowie, Williams A. Joyner and DCA Land Corporation, Appellees.
    Nos. 83-418, 83-468.
    District Court of Appeal of Florida, Third District.
    April 10, 1984.
    Rehearing Denied June 8, 1984.

      Daniels & Hicks and Sam Daniels, Fowler, White, Burnett, Hurley, Banick & Strickroot, Rosenberg, Reisman & Glass and James Glass and Michele R. Benven-isty, Miami, for appellants.
    Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin and Joel D. Eaton, Miami, for appellees.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   PER CURIAM.

Nob Hill was a joint venture which decided to develop a shopping center. It sought a permanent loan through Tower, a mortgage brokerage institution. Tower obtained a commitment from United, an institutional lender, whereby United agreed to purchase a proposed loan to be made by Tower to Nob Hill. United charged Tower a commitment fee of $50,000. With this commitment from United, Tower agreed to loan Nob Hill a maximum of $2,500,000. Nob Hill provided a $50,000 letter of credit as a good faith deposit. Nob Hill then procured a construction loan from Southeast Bank and began construction.

As the time approached for closing on the construction loan, it became apparent to Nob Hill that it would require an extension of the permanent loan commitment. An extension was granted by all parties until February 28, 1980.

Thereafter, Nob Hill requested a further extension of six months from Tower. Tower sought the extension from United who agreed, but required as consideration an increase in the interest rate, a construction report indicating that construction problems had been corrected and an extension of the $50,000 letter of credit. Tower made this parallel offer to Nob Hill. Nob Hill expressed concern over the 30-day requirement for the correction of defects and requested that a “P.S.” be inserted in the agreement allowing Nob Hill a reasonable time to solve these construction problems. This was allegedly verbally agreed to by United on February 5th and was made part of the agreement between Tower and Nob Hill. However, when Tower executed and returned United’s parallel extension offer, it failed to include the “P.S.” condition. United took the position that there had been some misunderstanding concerning the February 5th offer and therefore claimed that the commitment expired without extension on February 28, 1980.

Notwithstanding this dispute, United wrote letters to Tower on March 7th and March 27th in which it offered to extend the time for the construction problems to be remedied. The final letter stated that the time could be extended to May 23,1980. On May 22, 1980, Tower wrote United that it had not received documents certifying that the corrections were made. On May 24, 1980, United wrote Tower stating that its commitment had expired and directed Tower to cash the letter of credit.'

In November 1980, Nob Hill instituted suit against Tower for breach of contract and against United for tortious interference with a contract and tortious interference with a business relationship. Tower answered and asserted a cross-claim against United for indemnification. United cross-claimed against Tower for breach of contract to recover the $50,000. United’s motions for judgment on the pleadings and summary judgment were denied and the case proceeded to trial. The jury found: (1) United was liable to Nob Hill for tor-tious interference in the amount of $1,750,-000 compensatory and $750,000 punitive damages; (2) Tower was liable to Nob Hill for breach of contract in the amount of $1,800,000; (3) Tower was entitled to indemnification from United in the amount of $1,750,000 (the difference was the $50,000 held by Tower); and (4) Tower was not liable to United for breach of contract.

United appeals the compensatory and punitive damages award in favor of Nob Hill as well as the indemnity judgment in favor of Tower. Tower appeals the judgment in favor of Nob Hill for breach of contract.

First, United argues that it was a party to the contract between Nob Hill and Tower and therefore could not be found liable for tortious interference. Under Florida law, a cause of action for tortious interference does not exist against one who is himself a party to the contract allegedly interfered with. Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), pet. for review denied, 392 So.2d 1371 (Fla.), cert. denied, 452 U.S. 955, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). Tower’s commitment letter to Nob Hill stated:

Subject to acceptance by United Benefit Life Insurance Company (ultimate investor) of the parallel commitment by them. We will so inform you of their acceptance.

In our view, this negates any argument by Nob Hill that the contracts were separate and distinct. Accordingly, the compensatory and punitive damage award in favor of Nob Hill against United for tortious interference must be reversed with directions to enter judgment for United on this claim.

We next examine United’s claim that Tower was not entitled to indemnification. This must be considered in conjunction with Tower’s claim that there was insufficient evidence to support a breach of contract on its part.

In essence, Tower argues that it was in the position of arranging a loan between United and Nob Hill and that its commitment to Nob Hill was entirely dependent on the commitment from United. We agree and find that Tower’s liability to Nob Hill was solely derivative from an alleged breach of contract on the part of United. The law is well settled that a party may recover under an indemnity theory where its liability, if any, would be solely vicarious, constructive, derivative or technical and based upon the actual wrongdoing or breach of contract of the indemnitor. Houdaille Industries v. Edwards, 374 So.2d 490 (Fla.1979); Olnick v. Robert Myers Painting, Inc., 384 So.2d 54 (Fla. 4th DCA 1980).

The question then is whether the evidence supports the jury’s determination that United breached its contract. United argues that there was a dispute as to the terms of the extension and that no agreement was entered into. In the absence of an extension, United’s position is that its offer expired on February 28, 1980. However, the record shows that United entered into an extension agreement with Tower, on February 22, 1980. The issue with respect to the breach of contract is created by the purported oral modification wherein United allegedly agreed that it would allow Nob Hill a reasonable time to prepare construction reports. We agree with United that there can be no oral modification of an agreement which was required to be in writing by the statute of frauds, Affordable Homes, Inc. v. Devil’s Run, Ltd., 408 So.2d 679 (Fla. 1st DCA 1982); 11 Fla. Jur.2d Contracts § 160 (1979). However, this does not relieve United from liability. On the record before us, it is clear that United has waived its right to utilize the statute of frauds as a defense. In reliance upon United’s oral agreement with Tower that it would allow Nob Hill a reasonable time to comply with the conditions precedent to the loan, Tower entered into a binding written contract with Nob Hill.

Because Tower has changed its position in reliance upon United’s consent to the new time, United is estopped from claiming that it did not agree to a longer period of time for compliance. See Young v. Pottinger, 340 So.2d 518 (Fla. 2d DCA 1976); Affordable Homes, Inc. Whether or not it was a breach of that agreement for United to refuse to fund the loan in May of 1980 was a question for the jury. It is apparent from the jury verdict in favor of Tower on the indemnity claim that they found that United wrongfully declined to fund the loan. This finding is supported by competent substantial evidence and we therefore affirm.

Finally, we consider whether the judgment against Tower for $1,800,000 (and thus the judgment against United for $1,750,000 on the indemnity claim) is excessive. The measure of damages for failure to make a loan is the added cost of a substitute loan over its term, reduced to present value. Financial Federal Savings and Loan Ass’n of Dade County v. Continental Enterprises, Inc., 338 So.2d 907 (Fla. 3d DCA 1976).

According to one of Nob Hill’s own experts, the amount of damages using this standard was a maximum of $834,619. The second expert, upon whom Nob Hill places reliance, merely projected what the cost of a substituted loan would be, using a range of discount rates. Ultimately, however, these figures were not correlated to the actual rate which would apply and the jury was left to “select” whichever of the rates they chose. As such, we conclude that the jury verdict which apparently utilized these “projections” did not comport with the standard of damages. It is clear that $1,800,000 in damages for failure to fund a loan of $2,500,000 is excessive. Accordingly, we direct that Tower is entitled to a new trial on damages.

In conclusion, the compensatory and punitive damage award against United is reversed and the judgment against Tower is reversed for a new trial on damages only. United’s liability to Tower is affirmed, but the award of damages must be reversed and remanded for entry of a judgment in accordance with the new trial on damages.

Affirmed in part, reversed in part and remanded.

      . The liability of the defendants to the plaintiff was determined to be joint and several to the extent of $1,750,000.


author: RYDER, Judge.

text:
    BURROUGHS CORPORATION and Employers Insurance of Wausau, Appellants, v. AMERICAN DRUGGISTS’ INSURANCE COMPANY, Iowa National Mutual Insurance Company, Hartford Accident & Indemnity Company, State Farm Mutual Automobile Insurance Company, Auto-Owners Insurance Company and Marjorie L. Jackson, Appellees. BURROUGHS CORPORATION, Employers Insurance of Wausau and Marjorie L. Jackson, Appellants, v. AMERICAN DRUGGISTS’ INSURANCE COMPANY, Iowa National Mutual Insurance Company, Hartford Accident & Indemnity Company, State Farm Mutual Automobile Insurance Company and Auto-Owners Insurance Company, Appellees. BURROUGHS CORPORATION and Employers Insurance of Wausau, Appellants, v. AMERICAN DRUGGISTS’ INSURANCE COMPANY, Iowa National Mutual Insurance Company, Hartford Accident & Indemnity Company, State Farm Mutual Automobile Insurance Company, Auto-Owners Insurance Company and Marjorie L. Jackson, Appellees.
    Nos. 83-309, 83-310, 83-1227.
    District Court of Appeal of Florida, Second District.
    April 11, 1984.
    Rehearing Denied May 29, 1984.

      Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellants Burroughs and Employers.
    Bart A. Riley of Law Offices of Riley & Proly, Port Richey, for appellant Marjorie L. Jackson.
    Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee American Druggists.
    Maureen Emmet-Miller and Larry D. Goldstein of Riden, Watson & Goldstein, P.A., St. Petersburg, for appellee Iowa National.
    William E. Hennen of Marlow, Shofi, Ort-mayer, Smith, Connell & Valerius, P.A., Tampa, for appellee Hartford.
    Richard E. Wolverton of Lyle & Skipper, P.A., St. Petersburg, for appellee Auto-Owners.
    No appearance by State Farm.
    No appearance by Patricia Elaine Paulette.
   RYDER, Judge.

The principal arguments presented in this appeal revolve around the issue of whether Patricia Elaine Paulette was within the scope of her employment with appellant Burroughs Corporation at the time of Paulette’s automobile accident with the decedent, Bradley Jackson. In case no. 83-309, the trial court granted a partial summary judgment in favor of Marjorie Jackson, personal representative of the estate of Bradley Jackson, holding as a matter of law that Paulette was acting within the scope and course of her employment with Burroughs, and a respondeat superior relationship existed between Burroughs and Paulette at the time of the accident. The partial summary judgment did not resolve with particularity the issue of liability in favor of a party seeking affirmative relief.

In case no. 83-310, the trial court granted a final summary judgment to various uninsured motorist (UM) carriers finding that the carriers were not liable for UM benefits pursuant to coverage on Paulette as Paulette was within the scope of her employment with Burroughs.

The appeal in case no. 83-1227 arises from an order of the trial court granting a partial summary judgment on the issue of liability in favor of Jackson and against Burroughs and Employers Insurance of Wausau. All issues of liability concerning Burroughs and Employers Insurance were resolved by this order. The order referred to the earlier summary judgment on the issue of respondeat superior (the order appealed from in no. 83-309).

Initially, we hold that the order appealed from in case no. 83-309 was technically nonappealable under Florida Rule of Appellate Procedure 9.130. On that basis, we dismiss appeal no. 83-309. All parties will note, however, that case no. 83-1227 is properly before this court as an interlocutory appeal of the partial summary judgment in favor of Jackson, and brings before this court issues which might have been raised in no. 83-309. Fla.R.App.P. 9.130(a)(3)(C)(iv). The UM insurance companies had filed a motion to dismiss no. 83-1227. This court has denied that motion and will not reconsider it a second time despite the appellee insurance company’s insistence that we do so. We will note that cross-claims, findings of the trial court, and actions by the parties indicate to us the propriety of the appeal in that case. Additionally, case no. 83-310 is properly before this court as an appeal from a final summary judgment. Fla.R.App.P. 9.110(a); Fla.R. App.P. 9.030(b)(1)(A).

Focusing on the issues now before this court, we hold that the partial summary judgment in no. 83-1227 and the final summary judgment in no. 83-310 were erroneously granted by the trial court. The issue of scope of employment, under the circumstances involved herein, is an issue best left to the trier of fact; the issue was not ripe for summary judgment.

At all relevant times, Paulette was employed by Burroughs as a “field engineer.” Specifically, she would examine and repair the computer equipment of Burroughs’ customers. Paulette used her own automobile while in the field, and carried equipment, parts and tools in the vehicle. She would receive compensation for mileage and travel time, as well as an automobile allowance.

Burroughs had established procedures concerning travel time for its employees. The employees had “check points” with which to establish their travel time. A “check point” is a reference point, not a required stop for the employee. Paulette’s check point was located in Tampa, as was her “home base” and home.

Burroughs had a rule which prohibited the use of intoxicants by employees during work hours. Paulette was aware of this rule.

There was testimony indicating that an employee should obtain prior approval from a supervisor before working overtime. Without such approval, travel time was supposed to occur during the work hours of 8:00 a.m. to 5:00 p.m. Paulette stated, however, that if an employee could finish a job within a short period after normal working hours, the employee could do so without getting special approval for overtime. Otherwise, the employee was to return home and complete the assignment on the following workday. Paulette had obtained prior overtime approval for about one-half of the occasions on which she applied for overtime compensation. One supervisor stated in deposition that if an employee finishes field work at 5:30 p.m., then stops and eats dinner before returning to Tampa, and thereafter returns to Tampa, the employee would not be on company time during dinner but would be on company time for purposes of pay and expenses during the period spent in driving to Tampa. We note that for the day of the accident, Paulette was paid for an eight-hour workday, her automobile allowance, and mileage from Brooksville to Tampa. A supervisor completed Paulette’s time sheet for the day in question.

On January 28, 1981, Paulette had worked in Tampa and Dade City. In the afternoon of that day, she went to Brooks-ville to perform a service call for one of Burroughs’ customers. The job was finished at approximately 5:00 p.m. Shortly thereafter, Paulette met a co-worker at a Brooksville lounge where she remained until approximately 9:20 p.m.

While in the lounge, Paulette consumed four or five beers. It was indicated, however, that she could not recall with certainty how many beers she had drunk.

After leaving the lounge, Paulette drove her automobile towards Tampa and home. Around 10:00 p.m., Paulette’s vehicle was involved in a collision with the vehicle in which Bradley Jackson was a passenger. Jackson died from injuries suffered during the collision.

There is an indication in the record that Paulette was legally intoxicated when a blood alcohol level test was performed after the accident. Paulette was charged with vehicular homicide and manslaughter, pleaded nolo contendere, and was placed on ten years probation.

A civil suit was instituted by Marjorie Jackson against various parties. The trial court ultimately held that there was no genuine issue as to any material fact, and that Paulette was acting within the course and scope of her employment for Burroughs Corporation at the time of the accident. The court concluded the liability aspect of this case by holding Burroughs liable, under the theory of respondeat superior, to the plaintiff below and holding the various insurance companies (not including Employers Insurance of Wausau) not legally liable for the payment of UM benefits. It is from these orders that the present appeals come before this court.

A summary judgment may be entered when it is shown that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c). The movant has the burden to establish that there remains no genuine issue concerning a material fact. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). If there is even the slightest doubt as to the existence or nonexistence of a genuine issue of material fact, that doubt must be resolved against the movant. Booth v. Mary Carter Paint Co., 182 So.2d 292, 297 (Fla. 2d DCA 1966).

It is especially important to note the well-settled principle that on a motion for summary judgment, the trial court may not try or weigh facts. Jones v. Stoutenburgh, 91 So.2d 299, 302 (Fla.1956); Booth, supra. Furthermore, where conflicting inferences may reasonably be adduced from the evidence, even where the evidence itself is not in conflict, the motion for summary judgment should be denied. Booth, 182 So.2d at 297.

Concerning scope of employment, only where the facts are completely settled and the inferences to be drawn from the facts lead to but one conclusion can it be said that the issue is one which may be decided by the court as a matter of law. Where there are varying inferences to be made and conclusions to be drawn, the matter is one which should be submitted to a jury. Gonpere Corp. v. Rebull, 440 So.2d 1307 (Fla. 3d DCA 1983); Lay v. Roux Laboratories, Inc., 379 So.2d 451 (Fla. 1st DCA 1980); Tuberville v. Concrete Construction Co., 270 So.2d 431 (Fla. 1st DCA 1972); Whetzel v. Metropolitan Life Insurance Co., 266 So.2d 89 (Fla. 4th DCA 1972); Columbia By The Sea, Inc. v. Petty, 157 So.2d 190 (Fla. 2d DCA 1963).

Relevant facts and inferences concerning scope of employment may deal with the type of work for which the employee is employed; whether the specific action is performed substantially within the time and space limits of the employment; whether the action was, to some degree, activated by a purpose to serve the master; did the employee step aside from his employment to perform an act which the employer did not authorize or expect the employee to perform; was there a slight deviation or departure from the employment; did the employee altogether abandon the employer’s business; was there a departure or clear cut deviation from the employer’s business to perform a nonessential, purely personal errand; was there a return to the employer’s business after the deviation and before the act at issue was committed; and could the employer have expected or foreseen the employee’s conduct. Gonpere Corp., supra; Johnson v. Gulf Life Insurance Co., 429 So.2d 744 (Fla. 3d DCA 1983); Galahad Associates v. Rose, 392 So.2d 44 (Fla. 4th DCA 1980); Lay, supra; Morrison Motor Co. v. Manheim Services Corp., 346 So.2d 102 (Fla. 2d DCA 1977), cert. denied, 354 So.2d 983 (Fla.1978); Whetzel, supra; Columbia By The Sea, supra; Thurston v. Morrison, 141 So.2d 291 (Fla. 2d DCA 1962); N & L Auto Parts Co. v. Doman, 111 So.2d 270 (Fla. 1st DCA 1959).

We do not intend the above enunciated factual or inferential questions to be an all inclusive list. Other facts or inferences may be relevant to a particular case, and it may be crucial to determining whether the case should be submitted to the trier of fact. It is our holding that summary judgment was not appropriate under the circumstances involved in this case. At the very least, the facts involved were not completely without dispute, and varying inferences could reasonably be drawn from the facts presented. Several issues, including foreseeability of Paulette’s conduct, deviation or abandonment of Burroughs’ business, return from the deviation, overtime rules, and the inferences to be drawn after factual resolution of these issues are matters which could not properly be determined on the motions for summary judgment presented to the lower tribunal.

As the burden on the motions for summary judgment was not met, and as summary judgment is not a substitute for trial, we reverse the orders below and remand for further proceedings.

REVERSED and REMANDED.

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


author: SCHWARTZ, Chief Judge. DANIEL S. PEARSON, Judge,

text:
    Levi WHITEHEAD, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1946.
    District Court of Appeal of Florida, Third District.
    April 24, 1984.
    Rehearing Denied June 8, 1984.
    Arthur B. Calvin, Miami, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., DANIEL S. PEARSON, J., and ROBERT C. SCOTT, Associate Judge.
   SCHWARTZ, Chief Judge.

Rejecting the defendant’s primary contention on appeal from his conviction for second degree murder with a firearm over his claim of self-defense, we find no error and, even more certainly, no harm in the exclusion of the testimony of the persons involved in the incidents that the decedent had previously committed several violent acts, given the defendant’s own undisputed testimony that these attacks had in fact occurred and that he was aware of them when he shot the victim. Palm v. State, 135 Fla. 258, 184 So. 881 (1938); Smith v. State, 410 So.2d 579 (Fla. 4th DCA 1982), rev. denied, 419 So.2d 1200 (Fla.1982); Henry v. State, 290 So.2d 73 (Fla. 2d DCA 1974), and cases cited. The other points have no merit and require no discussion.

The defendant was sentenced to fifteen years subject to a three-year mandatory minimum term, pursuant to Sec. 775.087(2), Fla.Stat. (1981). By cross-appeal, the state contends that, since a firearm was involved, the second degree murder conviction is reclassified by Sec. 775.-087(l)(a), Fla.Stat. (1981), from a first degree felony, Sec. 782.04(2), Fla.Stat. (1981), to a life felony, punishable by no less than thirty years. Sec. 775.082(3)(a), Fla.Stat. (1981). We disagree. While it is correctly argued that the use of a firearm is not an “essential element” of second degree murder per se, see Pedrera v. State, 401 So.2d 823 (Fla. 3d DCA 1981) (third degree murder), such a determination is required to invoke the application of Sec. 775.087(2). Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983) (jury finding that firearm involved required to impose three year minimum mandatory under Sec. 115.081(2)), following Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982) (jury finding that weapon involved required to enhance penalty under Sec. 775.087(1)). Since the prosecution below secured a jury verdict and a consequent three-year minimum sentence on this basis, we conclude that, under these circumstances, a “double” enhancement is not statutorily warranted.

Affirmed.

DANIEL S. PEARSON, Judge,

concurring in part; dissenting in part.

I disagree only with the majority’s disposition of the State’s cross-appeal. In my view, the jury’s finding that the defendant committed the crime of second-degree murder with a firearm obligated the trial court to effectuate both prongs of Section 775.-087, not, as the majority suggests, choose one or the other. Under subsection (1) of Section 775.087, the jury’s finding required that the felony be reclassified from a felony of the first degree to a life felony and that the defendant be sentenced to no less than thirty years in prison; under subsection (2) of Section 775.087, the jury’s finding required that the defendant be made ineligible for parole for three years of the sentence imposed. I see nothing in this statute evincing an intent on the part of the Legislature to make its independent provisions mutually exclusive. The reclassification provision makes every felony in which a weapon or firearm is used (except those in which such use is an essential element) a one-step higher crime, subject to greater punishment; the three-year minimum mandatory provision simply insures that in the case of certain described felonies — murder being one — in which a firearm is possessed, the person convicted shall serve at least three years of his sentence before becoming eligible for parole, even if the overall sentence is greater because of the reclassification of the crime.

Accordingly, I would reverse the fifteen-year sentence and remand this cause to the trial court for the imposition of a sentence of either life imprisonment or a term of years not less than thirty, with the additional requirement that the defendant must serve three years of whichever sentence is imposed before becoming eligible for parole.

      . There was also extensive testimony from these witnesses and others concerning the victim’s reputation for violence.

      . (2) Any person who is convicted of any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes, and who had in his possession a "firearm," as defined in subsection 790.001(6), or "destructive device,” as defined in subsection 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 years. Notwithstanding the provisions of § 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole, prior to serving such minimum sentence.

      . (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
      (a) In the case of a felony of the first degree, to a life felony.
      (b) In the case of a felony of the second degree, to a felony of the first degree.
      (c) In the case of a felony of the third degree, to a felony of the second degree.

      .No previous case has, to our knowledge, directly determined the present issue. Cf. Strickland v. State, 415 So.2d 808 (Fla. 1st DCA 1982), aff’d, 437 So.2d 150 (Fla.1983); Williams v. State, 407 So.2d 223 (Fla.2d DCA 1981).


author: LETTS, Judge.

text:
    AMERICAN STATES INSURANCE COMPANY, Appellant, v. Willie ROZIER, Jr., Appellee.
    No. 83-521.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1984.
    Rehearing Denied June 14, 1984.
    Errol S. Cornell of Cornell & Almeyda, P.A., Miami, for appellant.
    Thomas D. Stafford, Fort Lauderdale and Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellee.
   LETTS, Judge.

This appeal presents the question of whether an employee sufficiently carried the burden of demonstrating to the court that he did not recover the full value of his damages sustained, under Section 440.-39(3)(a), Florida Statutes (1981), entitled Workers’ Compensation. The trial judge found that he did not carry that burden, but we disagree and reverse.

The employee, during the course of employment, was injured in a highway head-on collision and settled his lawsuit against the tortfeasor for $25,000, the full value of the latter’s policy. The employee then filed the instant complaint claiming the $25,000 was grossly inadequate, that there was no likelihood of collecting any more from the tortfeasor and consequently the workers compensation carrier was not entitled to recover 100% of what it had paid out. The carrier disagreed and the trial judge agreed with the carrier, noting in his final judgment that the plaintiff failed to prove the value of his case. Inherent in the judge’s ruling, although not specifically enunciated, was the conclusion that the employee did not carry the burden of proving he recovered less than the full value of his damages because he failed to present expert witnesses who could buttress his claim. However, Section 440.39(3)(a) does not require expert witnesses, it requires the employee to “demonstrate to the court that he did not recover the full value of damages sustained because of comparative negligence or because of limits of insurance coverage and collectibility. The burden of proof will be on the employee.” (Emphasis supplied.)

In the case before us, the employee presented evidence that no comparative negligence was involved, the settlement of $25,000 was for the policy limits and that more was uncollectible. He also demonstrated that the carrier had paid him $11,-802.91 in compensation, $8,252.74 in medical bills, and would continue to pay more. He further showed that he owed his attorney $8,333.00 in fees.

As to his pain and suffering, the evidence was that he was off work for at least six months and in therapy during that period at least twice a week. He saw at least four doctors. He underwent a CAT scan and a myelogram and he was hospitalized for a further three weeks when he underwent a lumbar laminectomy. The employee also introduced medical testimony that he was 15% permanently disabled and suffered extensive back and neck pain for which Percodan was repeatedly prescribed.

At one stage of the proceedings, the trial judge remarked that the hearing before him was not a substitute for a jury trial. However, in a sense it was. Under Section 440.39(3)(a), the burden of proof is to be carried by “demonstrat[ion] to the court.” From this we conclude that the court must weigh the evidence, just like a jury would, and evaluate the case if he has evidence before him which will permit it. See Safeco Insurance Co. v. Sarkisian, 389 So.2d 1088 (Fla. 4th DCA 1980). We know of no absolute law mandating the use of an expert witness and in the light of the evidence presented, we do not think one was required in the case now before us. We are not unaware that the actual order appealed from is one granting a rehearing to reopen the case so that further testimony be secured on the full value of the recovery. Notwithstanding, as its predicate, the order repeats its earlier conclusion that the employee failed to carry the burden of proof on the full value of the damages and it is with that finding that we disagree.

Accordingly, we reverse and remand this case to the trial judge and direct him to evaluate this cause based on the evidence already in the record and proceed accordingly. We make no finding that the employee did carry the burden of proof, but we believe he did present sufficient evidence from which the trial judge could have decided this issue. In a later order, the procedural details of which we have omitted (see footnote 1), the trial judge proclaimed that to decide that which we now direct him to do would involve a “wild guess.” We would ask him to reconsider based on the record evidence, much of which we have recounted herein. Most trial judges, and certainly this one, have considerable insight into what a case is worth and while we deem it inappropriate to substitute our judgment for that of the fact finder, we would suggest the facts hereunder would support a result far in excess of $25,000.

REVERSED AND REMANDED.

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

      . We have omitted the procedural backs and forths culminating in the trial court’s statement about "three bites of the apple” because we conclude the first bite satisfies this court’s appetite. Had it not done so, we would agree with the compensation carrier that there were too many inroads into the apple.

      . We recognize that Section 440.39(3)(a) calls for the deduction of attorneys fees and costs.