author: HURLEY, Judge.

text:
    Theodore S. TAMER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1887.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1985.

      Ronald A. Dion of Entin, Schwartz, Dion & Sclafani, North Miami Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HURLEY, Judge.

Theodore Tamer was charged by affidavit of violation of probation with arson, burglary and possession of a stolen auto tag. The trial court found sufficient evidence of arson to warrant revocation of Tamer’s probation and sentenced him to concurrent prison terms on the underlying criminal convictions. Tamer appeals, contending that illegally obtained evidence was erroneously admitted at his probation revocation hearing. We disagree, and accordingly, affirm the order revoking his probation.

As a preliminary issue, we must decide whether the exclusionary rule is applicable in probation revocation proceedings. In State v. Dodd, 419 So.2d 333 (Fla.1982), our supreme court held that the exclusion from evidence of articles and information obtained in violation of Article I, Section 12 of the Florida Constitution is constitutionally mandated. Since then, Section 12 has been amended as follows (effective January 4, 1983):

ARTICLE I
DECLARATION OF RIGHTS
Section 12. Searches and seizures —The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.
(new language is underlined)

The United States Supreme Court has indicated that whether the exclusionary rule should apply in a particular type of proceeding depends on whether the likely social benefits of excluding unlawfully seized evidence outweigh the likely costs, or more specifically, whether the likely incremental deterrent effect on police misconduct is great enough to justify the social costs attendant to the loss of probative evidence. See United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). Under that balancing approach, it has found the rule inapplicable in grand jury proceedings, see United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), federal civil tax assessment proceedings, United States v. Janis, supra, and civil deportation proceedings. I.N.S. v. Lopez-Mendoza, 468 U.S. -, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). However, it has never passed on the question of whether evidence obtained in violation of the Fourth Amendment is admissible in probation revocation hearings.

Despite the absence of a Supreme Court ruling on the precise issue before us, the state urges us to hold that the exclusionary rule is not applicable in this context, in accordance with the majority view among federal appellate courts. We decline to do so. Under the amended version of Article I, Section 12, we are required to construe an individual's right to be secure against unreasonable searches and seizures under the Florida Constitution “in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” In the absence of a definitive ruling by that court, we believe that we are bound to construe the Florida Constitution consistently with opinions issued by the Florida Supreme Court. See Douglas v. Michel, 410 So.2d 936 (Fla. 5th DCA 1982). Thus, in this case, we hold under the authority of State v. Dodd, supra, that the Florida exclusionary rule is applicable to Tamer’s probation revocation proceeding. Although our Supreme Court recently issued an opinion suggesting that Dodd may no longer be viable under the amendment to section 12, see State v. Lavazzoli, 434 So.2d 321 (Fla. 1983), it has never expressly receded from Dodd. Therefore, we must assume that the pronouncement in that case is still the law of this state. See Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Fincher Motors, Inc. v. Northwestern Bank & Trust Co., 166 So.2d 717 (Fla. 3d DCA 1964).

However, in view of the United States Supreme Court’s recent curtailment of the Fourth Amendment exclusionary rule and its unequivocal assertion that the rule is not constitutionally required, but rather is a judicial remedy designed to deter police misconduct, see United States v. Leon, — U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), together with its past observation that a probationer is not entitled to the full panoply of procedural rights guaranteed to a defendant in a criminal prosecution, see Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), we believe that the interpretation of Article I, Section 12 of the Florida Constitution set forth in Dodd should be reconsidered in light of the 1983 constitutional amendment, and therefore certify to the Florida Supreme Court the following question as being one of great public interest:

UNDER THE 1983 AMENDMENT TO ARTICLE I, SECTION 12 OF THE FLORIDA CONSTITUTION, DOES THE EXCLUSIONARY RULE APPLY IN PROBATION REVOCATION HEARINGS?

We thus find the exclusionary rule applicable in this case, but nevertheless affirm the trial court’s denial of Mr. Tamer’s motion to suppress because we believe that the initial stop of Tamer was founded upon a reasonable suspicion of criminal activity. At the motion hearing, Police Officer Dwight Snyder testified that he observed Tamer at 1:05 A.M. on May 14, 1983, driving a station wagon with an open tailgate through the parking lot of the Westland Executive Plaza in Hialeah. The Plaza, a medical building housing thirty-five doctors’ offices, was closed at the time.

Tamer drove out of the lot to another parking lot across the street. Officer Snyder, who was aware that there had been a recent rash of fires in doctors’ offices in the area, followed Tamer in his marked patrol car. Upon observing the police vehicle, Tamer made a sharp U-turn with tires squealing and drove to a nearby restaurant where he parked the auto, closed the tailgate, and proceeded to walk toward the building. At that point, Officer' Snyder detained Tamer and asked for his driver’s license and registration. Tamer complied, and upon questioning explained that he was looking for an open restaurant.

Tamer was arrested after a records check of the vehicle showed that the vehicle tag had been reported stolen. After making the arrest, Officer Snyder was informed by police radio that a fire had been discovered at the Westland Executive Plaza. Tamer’s auto was impounded and a search .warrant obtained to search its contents.

On appeal, Tamer argues that various items of incriminating evidence taken from the car were improperly admitted at his probation revocation hearing because his initial detention was not founded upon probable cause or a reasonable suspicion of criminal activity, thus tainting his arrest and invalidating the search warrant pursuant to which the physical evidence was seized. We disagree.

Investigatory stops based on less than probable cause are justified where the detaining officer has a reasonable, articula-ble suspicion that the person has been, is, or is about to engage in criminal activity. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The right of law enforcement officers to stop and temporarily detain individuals under those circumstances has been codified in the Florida Stop and Frisk Law, section 901.151, Florida Statutes (1983). Under that statute, temporary detention is justified where the detaining officer has a “founded suspicion” of criminal activity, i.e., a belief having some factual foundation in the circumstances observed by the officer when those circumstances are interpreted in the light of the officer’s knowledge. State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

In applying that standard, we have found sufficient justification for a temporary detention by a police officer who stopped and questioned a person walking along the road in the dark in an area which had been experiencing a rash of burglaries, where the person had been carrying a large box which was marked as a stereo turntable, State v. Hundley, 423 So.2d 548 (Fla. 4th DCA 1982), and by officers who observed a truck late on a Sunday night in the vicinity of a city supply and equipment yard, where the truck was overloaded in a disorderly manner with materials of the kind which had been stolen from the same. yard on another weekend about a month earlier. State v. Stevens, supra.

In Stevens, the following factors were deemed relevant in determining whether the circumstances witnessed by an officer reasonably suggest a suspect’s possible commission, existing or imminent, of a crime:

The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.

354 So.2d 1244 (Fla. 4th DCA 1978). Considering those factors in the context of this case, we conclude that the initial detention of Mr. Tamer was founded upon a reasonable, articulable suspicion of criminal activity, and therefore, affirm the denial of his motion to suppress. See State v. Hundley, supra; State v. Stevens, supra; but see Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983); Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977).

AFFIRMED.

DELL and WALDEN, JJ., concur.

      . See United States v. Frederickson, 581 F.2d 711 (8th Cir.1978); United States v. Winsett, 518 F.2d 51 (9th Cir.1975); United States v. Farmer, 512 F.2d 160 (6th Cir.), cert. denied, 423 U.S. 987, 96 S.Ct. 397, 46 L.Ed.2d 305 (1975); United States v. Brown, 488 F.2d 94 (5th Cir. 1973); United States v. Hill, 447 F.2d 817 (7th Cir.1971). In contrast, the exclusionary rule was held applicable in United States v. Workman, 585 F.2d 1205 (4th Cir.1978).

      . We note that in collateral criminal proceedings, the state successfully appealed an order suppressing the evidence seized from Mr. Tamer’s automobile. See State v. Tamer, 449 So.2d 890 (Fla. 3d DCA 1984). Thus, we are in any event compelled to affirm the denial of appellant’s motion to suppress by principles of collateral estoppel. See Brown v. State, 397 So.2d 320 (Fla. 2d DCA 1981); see also Spencer v. State, 438 So.2d 864 (Fla. 1st DCA 1983).


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Harriet V. BUCKBEE, Appellant, v. STATE of Florida, Appellee.
    No. 84-753.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1985.
    Richard L. Jorandby, Public Defender, and Robert E. Adler, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Harriet Y. Buckbee appeals her conviction of manslaughter with a firearm and sentence of seven years imprisonment.

Buckbee was charged with second degree murder with a firearm. It is undisputed that the victim died as a result of gunfire from her pistol during an argument. The trial court refused to instruct the jury that it could find Buckbee guilty of the lesser included offense of culpable negligence. Upon conviction of manslaughter with a firearm the trial court reclassified the crime to a first degree felony because of the use of a firearm in the commission thereof.

Buckbee contends the trial court committed reversible error for failure to give her requested instruction on what she contends was the lesser included offense of culpable negligence and in reclassifying the crime to a first degree felony.

Appellant is wrong on the instruction point. State v. Simone, 431 So.2d 718 (Fla. 3d DCA 1983); Thomas v. State, 434 So.2d 12 (Fla. 1st DCA 1983); and wrong on the sentencing point. Miller v. State, 460 So.2d 373 (Fla.1984); State v. Smith, 462 So.2d 1102 (Fla.1985).

Accordingly, the judgment and sentence appealed from are affirmed.

AFFIRMED.

HERSEY and HURLEY, JJ„ concur.


author: OTT, Acting Chief Judge.

text:
    Mark A. OLDS, Johnny Olds, and Doris Olds, Appellants, v. Herbert L. STEPHENSON and Ruth S. Stephenson, Appellees.
    No. 83-1976.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1985.
    Edward S. Eno of Tanney, Forde, Dona-hey & Eno, P.A., Clearwater, for appellants.
    James L. Yacavone, III of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Clearwater, for appellees.
   OTT, Acting Chief Judge.

This is an appeal by a minor and his parents from a final judgment entered upon a jury verdict in a personal injury action arising out of a collision of the minor’s motorcycle and the automobile of the appellees. The jury found the minor to be 80 percent comparatively negligent and assessed the total damages to the appellants at $10,000.00. We reverse and remand for a new trial on damages only.

The appellants have failed to demonstrate any reversible error in the jury’s findings and apportionment of the negligence, or in the trial court’s denial of accident reconstruction evidence of appellants’ expert. We therefore affirm the judgment on liability and apportionment of negligence between the parties.

The jury’s determination of the total damages cannot be sustained.

Pursuant to the trial court’s order setting a pretrial conference, all the separate bills for the medical expenses for treatment of the minor’s injuries were stapled together with an itemized cover sheet. They were received in evidence without objection. There was no testimony that any of the bills were either unnecessary or unreasonable. The uncontradicted medical expenses totaled $7,984.08.

The employment schedule of weekly earnings of the minor for the thirteen weeks preceding the date of the accident were stipulated into evidence. The treating physician testified without contradiction that the minor was not released for or capable of returning to work for thirty-two weeks following the accident, or a total of $3,530.88 actual lost earnings.

The total of these two elements of damages is $11,514.96.

There was undisputed evidence of permanent injury, pain, and suffering.

The jury first returned a verdict apportioning the negligence at 80 percent and 20 percent respectively between the minor and the appellees, and finding total damages to be zero dollars. The trial judge rejected the verdict as inconsistent, reinstructed the jury on damages, and sent them back for further deliberation. The jury returned with a total damages determination of $10,-000.00. Under these facts, no reasonable jury would have returned a verdict for an amount less than the actual medical expenses and lost wages. See Griffis v. Hill, 230 So.2d 143 (Fla.1969); Hector v. Florida Farm Bureau Mutual Insurance Co., 364 So.2d 1253 (Fla. 2d DCA 1978); Thornburg v. Pursell, 446 So.2d 713 (Fla. 2d DCA 1984). The inadequate damages award, together with the initial zero damages verdict, creates a strong suspicion that the jury disregarded or misunderstood the court’s instructions or was biased or prejudiced.

We therefore VACATE AND SET ASIDE THE JUDGMENT and REMAND . , . , , for a new trial on the issue of damages. &

DANAHY and LEHAN, JJ., concur.


author: LOGAN, PAUL E., Associate Judge.

text:
    Ronald Ivey EMORY, Appellant, v. STATE of Florida, Appellee.
    Nos. 84-645, 84-646.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1985.

      James Marion Moorman, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   LOGAN, PAUL E., Associate Judge.

In these consolidated appeals Appellant (Emory) challenges sentences outside the guidelines with the trial court retaining jurisdiction over one-half the sentence. We set aside the retention of jurisdiction, but affirm the departure from the sentencing guidelines.

Emory was charged by information with two counts of lewd and lascivious behavior with a child under the. age of 14, allegedly committed in June, 1983. By separate information Emory was also charged with armed burglary, aggravated battery, shooting into an occupied dwelling, and two counts of aggravated assault all allegedly committed in September, 1983. Emory entered pleas of guilty, requested to be sentenced under the guidelines, was adjudicated guilty and received the following sentences: lewd and lascivious behavior, 15 years each count, consecutive; armed burglary, life; aggravated battery, 15 years consecutive; shooting into an occupied dwelling, 15 years consecutive; aggravated assault, 5 years each count, consecutive.

In departing from the guidelines and retaining jurisdiction the trial judge stated:

THE COURT: It is the Judgment, Order and Sentence of this Court that Ronald Ivey Emory — and I should note that in ’61 he has a crime against nature, five years State Prison. Then ’83 a misdemeanor and then the next day another unrelated misdemeanor and then two lewd and lascivious and then this shooting in which the victim is shot.
On 83-8095 it is the Judgment, Order and Sentence of this Court that on this Count that Mr. Emory be confined in the Florida State Prison for fifteen years. Count II aggravated battery fifteen years consecutive.
For shooting into an occupied dwelling fifteen years consecutive.
For each count of aggravated assault five years consecutive.
Give him credit for all time served. I will retain jurisdiction on the armed burglary, the aggravated battery, the shooting into an occupied dwelling and aggravated assault for one-half of the sentence in that a firearm was used. Let me have the form, please. Also because he has a significant history of prior criminal activity. The victim is injured. It is necessary for the protection of the public. It is a serious crime. It is a firearm or other weapon used. There are a large number of people exposed to danger. The crime involved the use of potential violence.
He has the right to appeal this sentence. He must do so within thirty days and has the right to be represented by his own attorney or free attorney on that appeal if he cannot afford one.
Prepare a written order and be sure and put in the crime against nature in ’61, the misdemeanor in ’83, the unrelated misdemeanor the next day, these two lewd and lascivious and the armed burglary as the basis for going outside the guidelines.

Prior to sentencing Emory was not told that the Court would retain jurisdiction over any portion of the sentence imposed. These appeals followed.

Taking the departure from the sentencing guidelines first, we hold that there were clear and convincing reasons for the departure. The sentencing guidelines are designed to aid a judge in determining the appropriate sentence for a particular crime; such determination is within the sound discretion of the trial court. See, Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984). Rule 3.701(d)(11), Fla.R. Crim.P. permits the trial court to consider factors relating to the instant offenses and prior offenses for which convictions have been obtained. The dictation of findings into the record satisfies the writing requirement. Harvey v. State, 450 So.2d 926 (Fla. 4th DCA 1984). In the cases before us the trial judge’s findings of aggravating circumstances read into the record related only to Emory’s prior arrests, or charges on the instant case, for which convictions were obtained.

As to the second point on appeal, we hold as error the trial court’s failure to inform Emory before he was sentenced that the court would retain jurisdiction over any portion of the sentence imposed. State v. Green, 421 So.2d 508 (Fla.1982); Brown v. State, 434 So.2d 21 (Fla. 2d DCA 1983). In any event, since appellant was sentenced under the guidelines, the retention of jurisdiction with respect to parole was inappropriate. Carter v. State, 464 So.2d 172 (Fla. 2d DCA 1985).

The judgments and sentences are AFFIRMED. The retention of jurisdiction is set aside.

GRIMES, A.C.J., and LEHAN, J., concur.


author: OTT, Judge.

text:
    Richard S. FEEZEL, Appellant, v. STATE of Florida, Appellee.
    No. 84-946.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1985.
    James Marion Moorman, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Karla J. Staker, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Defendant Feezel appeals his order modifying his probation by continuing his probationary term for five years with the added condition of a six-month jail term. The affidavit for violation of probation alleged that defendant 1) had not filed his monthly reports for three months, 2) had not paid supervision costs, 3) had not reported to his probation officer upon request, and 4) had not made restitution.

At the hearing, the trial court made an oral declaration that defendant had violated grounds one, two, and three of the four conditions, all amply supported by the record. We find no reversible error in the trial court’s finding. However, the written order of modification failed to make or recite any violations. The order of modification must be corrected to reflect the specific conditions which were violated and thus conform to the trial court’s oral declaration. See Brown v. State, 429 So.2d 821 (Fla. 2d DCA 1983); Dunlap v. State, 405 So.2d 796 (Fla. 2d DCA 1981).

We affirm the modification of probation, but remand the case for entry of a proper order of modification.

RYDER, C.J., and THOMPSON, JAMES R. Associate Judge, concur.


text:
    Marcella M. MAW, Appellant/Cross-Appellee, v. Benjamin V. ABINALES and Pacita T. Abinales, Appellees/Cross-Appellants.
    No. 84-1390.
    District Court of Appeal of Florida, Second District.
    Feb. 20, 1985.

      Frederick W. Vollrath, Tampa, for appellant/ cross-appellee.
    Ronald P. Teevan of Strohauer & Tee-van, P.A., Clearwater, for appellees/cross-appellants.
   OTT, Acting Chief Judge.

In this appeal and cross-appeal, we are asked to review the lower court’s denial of attorney’s fees to both parties and the grant of costs to appellees in a mortgage foreclosure action. For the reasons stated below, we affirm the denial of attorney’s fees to the appellees; reverse and remand the denial of attorney’s fees and costs to the appellant; and reverse the grant of costs to the appellees.

The appellees executed and delivered a mortgage and promissory note to the appellant. The mortgage provided, among other things, that the appellees would keep the buildings on the property in proper repair. The mortgage further provided:

Should any of the above covenants be broken, then said note and all moneys secured hereby shall without demand, if the mortgagee so elects, at once become due and payable and the mortgage be foreclosed, and all costs and expenses of collection of said moneys by foreclosure or otherwise, including solicitor’s fees shall be paid by the mortgagor, and the same hereby secured.

Appellant learned that two buildings on the property had been demolished. She thereafter filed a complaint in foreclosure alleging that the appellees had defaulted under the mortgage and note by failing to keep the buildings on the property in proper repair.

Upon being deposed, appellant admitted that she only brought the foreclosure action because she needed money. She continued to receive and cash the monthly mortgage checks after she discovered the demolished buildings and before instituting foreclosure proceedings. She further continued to receive and cash the monthly payment checks after the foreclosure proceedings were brought. She also stated that she never at any time felt any the less secure under the mortgage with the buildings gone. However, since the appellees had violated the contract and because she needed money, she brought this action.

The basic defense raised by the appellees was that the security interest was in no way jeopardized by the removal of the buildings. The value of the property, without the buildings, was conceded to be approximately $129,000. The outstanding balance of the mortgage was approximately $69,000.

Both parties filed motions for summary judgment. After a hearing, the trial court denied appellant’s motion, granted appel-lees’ motion, and entered partial summary judgment in favor of the appellees. The trial court found that the equities under all the facts would not support foreclosure. Both parties filed motions to tax costs and for an award of attorney’s fees; appellant, because of the note and mortgage provisions, and appellee, on the basis of a frivolous lawsuit under section 57.105, Florida Statutes (1983). The lower court reserved jurisdiction to consider these motions.

In due course, the lower court entered a final judgment denying attorney’s fees to both parties; construing the mortgage as at least requiring recovery of a money judgment by the appellant to support an award of fees and costs, and finding that the lawsuit was not completely lacking jus-ticiable issues of law or fact. However, the lower court awarded costs to the appel-lees because they were the “prevailing parties.”

Both parties have appealed the lower court’s denial of attorney’s fees, and'appellant appealed the grant of costs to the appellees. Appellant has not challenged the denial of foreclosure.

We find our prior decision in Schechtman v. Grobbel, 226 So.2d 1 (Fla. 2d DCA 1969), to be controlling. In that case, the mortgage contained a “rider” providing that escrow tax money payments, along with the monthly mortgage payments, be made to the mortgagees. After a time, the mortgagors paid only the monthly mortgage installments to the mortgagees, and paid the escrow tax monies to a special tax account which they opened in a bank. The trial court, in denying the foreclosure, found: the “rider” to be ambiguous; that at no time were the monthly mortgage payments in default; and that the security was never impaired. The trial court also denied attorney’s fees to the mortgagees because the foreclosure was denied. Id. at 2-3.

On appeal, we affirmed the denial of foreclosure, but reversed the denial of attorney’s fees to the mortgagees. We reasoned that the mortgagors were in technical default because the contract entitled the mortgagees to performance under the “rider.” The mortgage contract there further provided for attorney’s fees if the mortgagors did not abide by any of the covenants “whether or not there be ... suit pending.” Id. at 4-5. Because the mortgage so provided, we held that the mortgagees were entitled to reasonable attorney’s fees, upon default by the mortgagors, even though foreclosure was denied. Id. at 5.

Based upon Schechtman, we hold it was error for the trial court to find that the appellees were not in default of the mortgage provision requiring them to maintain the buildings in reasonable repair, when the appellees had demolished the buildings without the knowledge and consent of appellant. Further, we disagree with the trial court that the mortgage only provided for attorney’s fees when appellant (the mortgagee) prevailed in a foreclosure action, at least to the extent of securing a judgment for money. We construe the provision to mean that the mortgagee is entitled to attorney’s fees when any default occurs that allows the mortgagee to institute a foreclosure action or to collect the monies payable under the note. The fact that the appellees were able to successfully prevent foreclosure against the property under the prevailing equities does not alter the fact that a default occurred. The mortgage provided for attorney’s fees and costs in any action to foreclose upon such a default. We hold that appellant was entitled to a reasonable award of attorney’s fees.

Absent a contract or statutory provision, costs are ordinarily awarded to the prevailing party in civil litigation. See § 57.041, Fla.Stat. (1983). Here, however, we have a contract provision and the award of costs is governed thereby. Consequently, we hold that the trial court erred in awarding costs to appellees as “the prevailing parties.” See also Brady v. Edgar, 415 So.2d 141 (Fla. 5th DCA 1982).

Upon remand, the trial court, in determining a reasonable award of attorney's fees to appellant, may consider the facts did not warrant foreclosure, that she instituted the action without feeling the security interest was in the least impaired, etc. Schechtman, id. at 5; Rice v. Campisi, 446 So.2d 1120, 1121 (Fla. 3d DCA 1984). While these facts do not bar appellant’s recovery of costs and attorney’s fees, the lower court may consider them relevant in determining the amount of such award or the items of costs allowable.

We affirm the lower court’s denial of attorney’s fees to appellees under section 57.105, Florida Statutes (1983), but reverse the allowance of costs to appellees.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

FRANK, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.

      . See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501 (Fla.1982).


author: DAUKSCH, Judge.

text:
    In re the Marriage of Ronald Wayne BEASLEY, Appellant, v. Corrie Gail BEASLEY, Appellee.
    No. 83-1327.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 1985.
    Thomas W. Gibson of Trickel, Leigh, Gibson & Martin, Orlando, for appellant.
    James P. Curry of Curry, Taylor & Carls, Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal in a marriage dissolution case. Although appellant presents a compelling argument for the reversal or modification of an alimony award he has not furnished this court with a transcript of the evidence taken at trial which led to the court’s decision. Financial affidavits, without supporting testimony, are not sufficient for our review of a case. Unless this court is provided with all of the evidence which was before the trial court, either by a transcript of testimony or a stipulated statement, then we cannot fault and reverse a trial judge for a purported error.

Appeals such as this shall be subject to summary dismissal in the future, and motions for attorney’s fees pursuant to section 57.105, Florida Statutes, will be favorably entertained.

AFFIRMED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.


author: COBB, Chief Judge.

text:
    STATE of Florida, Appellant, v. Bruce HAYNES, Appellee.
    No. 84-459.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 1985.

      Jim Smith, Atty. Gen., Tallahassee, and Margene Roper, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, Larry B. Henderson, Asst. Public Defender, and Kenneth Witts, Certified Legal Intern, Daytona Beach, for appellee.
   COBB, Chief Judge.

The appellee, Bruce Haynes, was charged below with delivery and possession of cannabis. Allegedly, the cannabis had been sold or delivered to one William Hol-brook, now a resident of New York State. The appellee filed a written plea of not guilty, and the case was set for trial on March 16, 1984.

On the morning of the trial, the state made an oral motion before the lower court to continue the case and to extend the time period for speedy trial, pursuant to Florida Rule of Criminal Procedure 3.191(f), for exceptional circumstances. The state contended that it needed a continuance because its primary witness, Holbrook, had not arrived for trial. It was represented to the trial court that Holbrook had run out of gas in a snowstorm on his way to the airport in New York, and had missed his flight to Florida. Holbrook had not been subpoenaed. The court denied the motion, stating:

THE COURT: I’m going to deny the motion. I think the first threshold in a diligent effort is that you subpoena the witness.
I think that, I think that even extraordinary efforts to compel the voluntary attendance of an unsubpoenaed witness is probably not sufficient.
This is consistent with the way I’ve generally ruled in this situation.
Denied.
MR. COCCHIARELLA [For the State]: Just, I suppose this is pointless, but, again, it’s not an unwillingness, ran out of gas. If he had been subpoenaed he wouldn’t be here.
# * * * * 5⅜
MR. COCCHIARELLA: We can’t subpoena somebody from New York to Florida.
THE COURT: I think you can. We have interstate compacts.
Deny the motion to continue.
MR. WELLS [For the Defense]: Like to move, make an ore tenus motion that the state be, the defendant be discharged in this case pursuant to the fact the state would not have sufficient evidence in which to obtain—
THE COURT: Beyond that, just dealing with one witness?
MR. WELLS: Already had, I believe, Your Honor, characterization from the prosecutor that this witness is, essentially, the most important witness.
THE COURT: Not announced—
MR. COCCHIARELLA: I can’t go forward.
THE COURT: Okay. Are you going to dismiss the case?
MR. COCCHIARELLA: No, sir, I just can’t go forward because we don’t have this witness.
THE COURT: What are you going to do then? I’ve denied the motion to continue.
MR. COCCHIARELLA: I think the Court’s going to have to grant the motion to dismiss.
THE COURT: Okay, I’ll grant the motion to dismiss.

The court thereafter released an order dismissing the charges in the case, stating:

THIS CAUSE having come on to be heard in Chambers on March 16, 1984, and this Court having been fully advised and the State having announced that it was unprepared to proceed with the scheduled jury trial, it is:
ORDERED and ADJUDGED that all charges brought in this case are:
DISMISSED.

The state appeals the order of dismissal.

At the outset, we must determine whether or not we are dealing with an appealable order under Florida Rule of Appellate Procedure 9.140(c), which delineates the instances in which the state is permitted to appeal an order. Subsection (1)(A) thereof lists dismissal of an information or any count thereof as one such instance.

Several Florida cases are relevant to our considerations. In State v. Alvarez, 258 So.2d 24 (Fla. 3d DCA 1972), the Third District held that a trial judge in a criminal prosecution has the inherent power to declare the prosecution abandoned. In Alvarez, the state attorneys were consistently tardy for, or absent from, court appearances and evinced little interest in the prosecution. As a result the court determined that the prosecution of the cause had been abandoned by the state, thus warranting dismissal of the information.

In State v. Hamilton, 387 So.2d 555 (Fla. 2d DCA 1980), the Second District reviewed a dismissal of an information for lack of prosecution. In Hamilton, the state, on the date of trial, orally moved for continuance on the ground that a law enforcement officer needed for the trial was unavailable. The state had been granted another continuance two months previously when the case was first set for trial. On the second trial date, two weeks remained before the time for speedy trial would have run. The Hamilton court held, however, that the dismissal of the information by the trial court for lack of prosecution was too extreme a sanction in that case where there was no showing of prejudice or unfairness to the appellee. The court suggested that the trial court could have properly denied the state’s motion for continuance; then if the state was unable to prove a prima facie case at trial because of the unavailability of the witness, a directed verdict for the appellee would have been in order.

A similar situation was presented in the case of State v. Evans, 418 So.2d 459 (Fla. 4th DCA 1982). In Evans, the trial date had been continued once at the defendant’s behest and twice at the state’s. After the third continuance, a trial date of August 6, 1981, was set. The speedy trial period was due to expire on September 18, 1981. On the day of the trial, both the state and the defense announced ready, but then the state sought another continuance claiming unavailability of a witness. The trial judge indicated his doubt that the state was ready for trial and, without a defense motion, dismissed the action for lack of prosecution. The state objected, stressing its willingness to proceed to trial. The Fourth District reversed the lower court’s dismissal of the information, holding that it had abused its discretion in that the trial court could have forced the state to trial simply by denying the motion for continuance. The Fourth District pointed out that the state would then have had the option to nolle prosse or it could have attempted to make its case without the unavailable witness. In the present case the state, unlike Evans, said that it was unable to proceed.

In none of the cited cases — Alvarez, Hamilton or Evans — did the prosecution concede its inability to proceed and, at the same time, refuse to nolle prosse. In that respect, the case closest in point appears to be State v. Anders, 388 So.2d 308 (Fla. 3d DCA 1980), review denied, 392 So.2d 1379 (Fla.1981). In Anders, the prosecution, at time of trial, stated that it was not ready for trial and did not anticipate being ready in the near future, but did not nolle prosse and specifically declined to move for continuance. The trial judge dismissed for lack of prosecution, and ordered the defendant discharged. The next day the state, having reconsidered its position, filed a new information. The trial court then explicitly dismissed with prejudice, and the appellate court affirmed with the observation that the first dismissal had been invited by the state’s failure to nolle prosse or move for a continuance when it could not proceed. Footnote 2 of the majority opinion in An-ders states:

If the trial judge had determined to go forward with a “trial” for which the state was not prepared, and had ordered a jury or a witness sworn, refiling would have been precluded on double jeopardy grounds. While the state’s acquiescence to a dismissal instead should be viewed, therefore, as no more than a commendable effort to save the court’s time, the end result should not be different.

Id. at 309. Thus, Anders implied that the state’s conduct created a situation analogous to a stipulated judgment of acquittal due to lack of evidence, which would not be appealable. The Anders appeal, however, was not dismissed but affirmed on the merits.

The instant case is distinguishable from Anders in that here the state moved for continuance. Hence, there is less reason to view its acquiescence in the dismissal as analogous to a stipulated judgment of acquittal based on insufficient evidence. Upon denial of its motion for continuance, the state was left with two apparent options: (1) a voluntary dismissal without prejudice prior to trial, or (2) commencement of the trial with the swearing of a jury, which would result in an adverse judgment based on insufficient evidence. The latter option, of course, would have precluded refiling by the state on double jeopardy grounds. Had the state elected the former option, it could have refiled the information and, if then confronted by the prospect of a speedy trial dismissal, argued that the trial court was in error in denying its previous motion for continuance, thus preserving the issue for appeal.

The state was not forced to this election, however, by reason of the precipitate defense motion to discharge the defendant, characterized by the assistant state attorney as a “Motion to Dismiss” and apparently considered as such by the trial court. Since it preceded the empanel-ling of a jury or the swearing of a witness, and cannot fairly be characterized as a stipulated judgment of acquittal, the dismissal can only be characterized as one for lack of prosecution—which may be with prejudice, as in Anders, or without prejudice, as in State v. Passifume, 420 So.2d 406 (Fla. 4th DCA 1982). In either event, such a dismissal is appealable as a dismissal of the information under Rule 9.140(c)(1)(A). See Anders, Alvarez, Evans, Hamilton.

Therefore, we reach the merits of the state’s contention that the trial court erred in denying its motion for continuance, which in turn resulted in the dismissal of the information. We disagree with the trial court’s finding that a subpoena or Chapter 942 witness extradition summons is a condition precedent (or, as the trial court phrased it, a “first threshold”) to consideration of whether the absence of an essential witness is due to “unforeseeable and unavoidable” factors constituting “exceptional circumstances” under Florida Rule of Criminal Procedure 3.191(f). Nothing in this rule explicitly compelled such a finding by the trial court, although there is case law which suggests that the general rule of law, subject to exceptions, is that a party should subpoena the witnesses he intends to rely upon at trial. See State v. Levine, 258 So.2d 468 (Fla. 3d DCA 1972). Other cases state that “the better practice is to subpoena witnesses who may be called to testify at trial, rather than to rely upon their voluntary appearance.” Coplan Pipe & Supply Co. v. Ben-Frieda Corp., 256 So.2d 218 (Fla. 3d DCA 1972).

Perhaps the ideal would be to have every essential witness in every case, whether local or out-of-state, served with process to appear. But we do not believe that such process is the sine qua non preceding consideration of the question as to whether Holbrook’s absence on the day of the scheduled trial was “unforeseeable and unavoidable” so as to constitute an “exceptional circumstance” warranting a state continuance. The failure of the state to utilize a Chapter 942 witness extradition summons is only one factor in making that determination.

The trial judge in this case based his denial of a continuance solely on that one factor. We believe this to be error; therefore, we reverse the dismissal of the information and remand for further consideration by the trial court of the merits or ■ demerits of the motion for continuance in accordance with this opinion. If the trial court, upon consideration of all the factors attendant upon Holbrook’s absence from the scheduled trial, determines that the motion should have been denied, then he should again dismiss this cause based upon the state’s failure to prosecute. If the trial judge determines the motion should have been granted, then the cause should be rescheduled for trial in due course.

REVERSED and REMANDED.

DAUKSCH and COWART, JJ., concur.

      . Rule 3.191(f) provides:
      Exceptional circumstances. As permitted by subsection (d)(2) of this Rule, the court may order an extension of the time periods provided under this Rule where exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court's docket, lack of diligent preparation or failure to obtain available witnesses, or other avoidable or foreseeable delays.
      Exceptional circumstances are those which as a matter of substantial justice to the accused or the state or both require an order by the court: Such circumstances include (1) unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial; ...


author: SHARP, Judge.

text:
    STATE of Florida, Appellant, v. Clarence FULLER, Appellee.
    No. 84-868.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 1985.

      Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellant.
    Linda Gloeckner of Edward R. Kirkland, P.A., Orlando, for appellee.
   SHARP, Judge.

The state appeals the trial court’s dismissal of count one of an information which charged Fuller with carrying a concealed weapon. We find that the trial court erred in granting Fuller’s motion to dismiss pursuant to Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure, and we reverse.

Appellee was injured in an automobile accident on November 25, 1983. As he lay unconscious on the ground, his sister’s girlfriend, Cathy, and her mother, removed his jacket from his body. Cathy held it for a time and then placed it on the trunk of his car. Later the jacket was handed back to Cathy by another bystander. She held it and then handed it to the police. The police thereafter found a .38 Special firearm in a pocket of the jacket, which belonged to Fuller and was registered in his name. Ca-, thy said the jacket’s weight did not change, in her opinion, at any time while she was handling it.

Appellee moved to dismiss the concealed firearm count on the ground that the undisputed facts did not make a prima facie case of guilt because Cathy could not establish a continuous chain of custody of the jacket after its removal from appellee’s body. The trial court ruled this was too weak a case to send to the jury.

This court has repeatedly held that a (c)(4) motion should not be granted if any facts or inferences from any facts establish a prima facie case against the defendant. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). All inferences that arise must be taken in the light most favorable to the state. A (c)(4) motion is similar to a summary judgment in a civil case and should be granted sparingly. State v. Patel, 453 So.2d 218 (Fla. 5th DCA 1984); State v. Raulerson, 403 So.2d 1102 (Fla. 5th DCA 1981); Upton. In considering such a motion the trial court should not determine fact issues or consider the weight of conflicting evidence or the credibility of witnesses. State v. Pettis, 397 So.2d 1150 (Fla. 5th DCA 1981); State v. Fort, 380 So.2d 534 (Fla. 5th DCA 1980). To counter a (c)(4) motion, the state need not produce evidence sufficient to sustain a conviction. It need only show sufficient reasonable inferences to make a prima fa-cie case. State v. Fetherolf, 388 So.2d 38 (Fla. 5th DCA 1980).

In the present case we think there are reasonable inferences from the undisputed facts that Fuller was carrying a concealed weapon at the time of the accident. His own gun was found in his jacket pocket and the jacket weighed the same before and after Cathy removed it from his body and took it back from a bystander. She did not put the revolver in his pocket. Therefore, a permissible inference is possible and reasonable that Fuller placed the gun in his own pocket and concealed it there prior to his accident. Where undisputed facts or inferences permit the conclusion that the defendant may be found guilty, a (c)(4) motion should be denied. State v. De Jerinett, 283 So.2d 126 (Fla. 2d DCA), cert. denied, 287 So.2d 689 (Fla.1973).

Accordingly, the order dismissing Count One of the information is

REVERSED.

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

      . § 790.01, FIa.Stat. (1983).


author: PER CURIAM.

text:
    DAN, INC., Appellant, v. ALTA-CAN CONSTRUCTION, INC., a Florida corporation and Miami-Lincoln Mercury, Inc., Appellees.
    No. 84-834.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1985.
    James G. Roth, Miami, for appellant.
    Sheldon R. Rosenthal, Miami, for appel-lees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Atlantic Gardens Landscaping, Inc., v. Boca Raton Land Development, Inc., 360 So.2d 1278 (Fla. 4th DCA 1978). Section 713.06(5)(d)(1), Florida Statutes (1981).


text:
    L.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 84-1316.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 1985.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Ensor v. State, 403 So.2d 349, 353-55 (Fla.1981).


text:
    Ricky Jerome LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 84-1059.
    District Court of Appeal of Florida, Fourth District.
    Feb. 27, 1985.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant’s convictions and sentences are affirmed. However, the trial court’s imposition of costs is stricken without prejudice to reimposing costs upon compliance with Jenkins v. State, 444 So.2d 947 (Fla. 1984).

DOWNEY, HERSEY and HURLEY, JJ., concur.


text:
    BUSBEE-BAILEY TOMATO CO., INC., Appellant, v. Grover J. BAILEY and Ethel F. Bailey, Appellees.
    No. AX-484.
    District Court of Appeal of Florida, First District.
    Feb. 27, 1985.
    William Y. Linne of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for appellant.
    Mark J. Proctor and D.L. Middlebrooks of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellees.
   PER CURIAM.

We set aside the summary judgment on the authority of Fish Carburetor Corporation v. Great American Insurance Company, 125 So.2d 889 (Fla. 1st DCA 1961), and Howarth Trust v. Howarth, 310 So.2d 57 (Fla. 1st DCA 1975), and remand for further proceedings consistent herewith, including the taking of additional testimony, if any, to be determined by the trial court.

Summary judgment is set aside and the cause remanded.

BOOTH and SHIVERS, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: NESBITT, Judge. SCHWARTZ, Chief Judge

text:
    Tomas PENA, Appellant, v. ALLSTATE INSURANCE COMPANY, a foreign insurance company, Appellee.
    No. 84-1245.
    District Court of Appeal of Florida, Third District.
    March 5, 1985.

      Sanford M. Reinstein, Hialeah, for appellant.
    Spencer, Taylor & Homer and Thomas Spencer, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   AMENDED OPINION

NESBITT, Judge.

The plaintiff appeals from a final summary judgment entered in favor of the defendant, the insurer, in an action for a declaratory judgment on insurance coverage. We reverse in part and affirm in part.

The plaintiff is the driver of a taxi cab which is insured by the defendant. On the day of the accident, a passenger entered the plaintiff’s cab and asked to be driven to an area where he obviously intended to rob the plaintiff. The passenger pulled a gun and demanded the plaintiff’s money. The plaintiff grabbed for the gun and, as a result, sustained injuries to his left hand. The injuries were caused either by the gun barrel or a bullet coming from the gun. The assailant then ordered the plaintiff out of the cab and drove the cab away from the scene.

The plaintiff made a formal demand on the defendant for personal injury protection benefits (including medical payment benefits) and uninsured motorist benefits pursuant to an insurance contract entered into by the parties. The defendant denied the claims, and the plaintiff brought this declaratory action pursuant to chapter 86, Florida Statutes (1983). The trial court denied the plaintiff’s motion for summary judgment and granted the defendant’s motion, declaring that the plaintiff was not entitled to any coverage under the policy. This appeal followed.

With regard to the personal injury protection (including the medical benefits), see § 627.736(1), Fla.Stat. (1983), the policy provides that payments are to be made for injuries “caused by an accident arising from the use of a motor vehicle as a motor vehicle.” We find that reversal of that portion of the summary judgment dealing with this coverage is mandated by the decision in Government Employees Insurance Co. v. Novak, 453 So.2d 1116 (Fla.1984). In Novak, the supreme court found that personal injury protection benefits were available to an insured who was shot after refusing to give the assailant a ride in her car. The court held:

It is well settled that “arising out of” does not mean “proximately caused by,” but has a much broader meaning. All that is required is some nexus between the motor vehicle and the injury .... [citations omitted]
The clause, “arising out of the use of a motor vehicle,” is framed in such general, comprehensive terms in order to express the intent to effect broad coverage, [citation omitted] Such terms should be construed liberally because their function is to extend coverage broadly, [citation omitted] [emphasis added]

453 So.2d at 1119. See also Fortune Insurance Co. v. Ferreiro, 458 So.2d 834 (Fla.3d DCA 1984). All that is required, following Novak, is that “some nexus” exist between the motor vehicle and the injury.

In Novak, the court found that a sufficient nexus existed because it was the assailant’s wish to obtain a ride in or possession of the motor vehicle which motivated the assault and the injuries. In the present case, the fact that the motor vehicle was a taxi cab was clearly the motivating factor which led the robber to choose the plaintiff as his victim. The fact that the plaintiff was operating a taxi meant he was more likely to have cash (from cab fares) than the average driver. More importantly, the vehicle itself became an instrumentality in the robbery when it was used not only to take the plaintiff and the robber to the scene of the crime, but also as a means of escape for the robber after the commission of the crime. We find that the nexus between the taxi cab and the plaintiff’s injuries is at least as strong if not stronger than the nexus which existed between the car and the injury in Novak. Accordingly, we are compelled to reverse that portion of the summary judgment which declared the plaintiff was not entitled to the personal injury protection and medical benefits provided for in the policy.

We reject the plaintiff’s argument, however, that he is also entitled to the uninsured motorist coverage. The policy provides:

We will pay damages for bodily injury ... which a person insured is legally entitled to recover from the owner or operator of an uninsured auto. Injury must be caused by accident and arise out of the ownership, maintenance or use of an uninsured or underinsured auto.

Uninsured vehicle (motorist) coverage is for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury resulting therefrom. § 627.727(1), Fla. Stat. (1983). The purpose of uninsured and underinsured motorist coverage in Florida is to place the insured motorist in the same position with regard to liability insurance when he is injured by an uninsured motorist as the insured motorist would have been in if the uninsured motorist had obtained liability insurance. To that end, section 627.727 confines itself to “damages from owners or operators of uninsured motor vehicles”. Aetna Casualty & Surety Co. v. Goldman, 374 So.2d 539, 542 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 757 (Fla.1980).

In the present case, the taxi cab was obviously covered by insurance issued by the defendant. There was no uninsured vehicle or uninsured motorist involved in the incident which led to the plaintiff’s injuries. Accordingly, the plaintiff is not entitled to the uninsured motorist coverage provided for in the policy. See Aetna Casualty.

On the foregoing reasoning and authority, that portion of the summary judgment dealing with the personal injury protection and medical benefits coverage is reversed with instructions to enter a declaratory final judgment for the plaintiff. The summary judgment is affirmed with regard to the declaration that the plaintiff is not entitled to uninsured motorist coverage under the defendant’s policy.

Reversed in part; affirmed in part and remanded.

SCHWARTZ, Chief Judge

(dissenting in part).

I do not agree that GEICO v. Novak, 453 So.2d 1116 (Fla.1984) or the rule it adopts requires reversal of the determination that p.i.p. coverage is unavailable on these facts. While Novak admittedly has reduced the causal thread or “nexus” required between the accident and, as the policy says, the “use” of a motor vehicle to the point of electron-microscopic visibility, it did not — as does the majority here — eliminate it altogether. The fact is that in Novak itself, in which the attack on Ms. Novak was motivated by her rebuffing the assailant’s attempt to take possession of her car, and in the post-Novak decisional findings of coverage, a palpable and, if only dimly so, discernible relationship to the use of the car has indeed existed. See Fortune Ins. Co. v. Ferreiro, 458 So.2d 834 (Fla. 3d DCA 1984) (claimant shot by driver of vehicle attempting to force his truck off road); Allstate Ins. Co. v. Gillespie, 455 So.2d 617 (Fla. 2d DCA 1984) (claimant injured in assault arising from argument over insured’s driving).

But, in my view, there is no nexus whatever present in this case. I am singularly unimpressed with the majority's attempt to create one out of the whole cloth of the presumed motivations of the robber, a person who has not been interviewed or even seen since he attacked the plaintiff. It seems to me that this parapsychological venture into the workings of a particular but completely anonymous criminal mind is such as to raise, by comparison, the fabled triplets of conjecture, speculation and surmise to the status of proof beyond a reasonable doubt. Since, I. had thought, we are not authorized to give evidentiary effect to a metaphysical enterprise such as this, we are left with a situation in which the admissible proof demonstrates only, as in Reynolds v. Allstate Ins. Co., 400 So.2d 496 (Fla. 5th DCA 1981), that the vehicle was no more than the fortuitous location of the robbery and of the plaintiff’s resulting injury.. And it is clear that Reynolds has not been disturbed by Novak, as the majority intimates. In Novak, the Supreme Court said:

We do not believe that our holding necessarily implies disapproval of Reynolds v. Allstate Insurance Co., the case cited by the petitioner as being in conflict. We believe the facts of that ease make it distinguishable from this one. The decision there turned on the plaintiff’s failure to allege facts sufficient to show the nexus between the use of the car and the injuries.

453 So.2d at 1119.

Both the continued viability of Reynolds, and its controlling effect upon this case are demonstrated by the very recent decision of Allstate Ins. Co. v. Famigletti, 459 So.2d 1149 (Fla. 4th DCA 1984). In that case, the court, relying on Reynolds and distinguishing Novak, found no coverage in a situation in which the insureds had been shot in a personal feud while they were seated in their car. See also, Protective Casualty Ins. Co. v. Hernandez, 450 So.2d 864 (Fla. 3d DCA 1984) (no p.i.p. coverage for injuries sustained when police forcibly removed insured from vehicle after stop for traffic infraction). Since I believe that the Reynolds and Famigletti holdings that coverage is not provided merely because the vehicle is the situs of the injuries represent the current law of Florida and are applicable here, I would affirm the judgment below in its entirety.

      . There can be little dispute over the conclusion that the shooting involved in this case which resulted in the injury to the plaintiff was an "accident” within the meaning of the policy as that term has been construed by the supreme court. See Novak, 453 So.2d at 1118. See also Novak, 453 So.2d at 1120 (Ehrlich, J. dissenting).

      .In Reynolds v. Allstate Ins. Co., 400 So.2d 496 (Fla. 5th DCA 1981) the court reiterated the rule “that it is not enough that an automobile be the physical situs of an injury or that the injury occur incidentally to the use of an automobile, but that there must be a causal connection or relation between the two for liability to exist." 400 So.2d at 497 (citing Stonewall Ins. Co. v. Wolfe, 372 So.2d 1147 (Fla. 4th DCA 1979), cert. denied, 385 So.2d 762 (Fla.1980)). The viability of Reynolds after Novak is uncertain. While the four-justice majority in Novak qualifiedly distinguished Reynolds ("We do not believe that our holding necessarily implies disapproval of Reynolds _"), the three dissenters relied on Reynolds as support for the view that coverage should not have been extended because of the lack of a sufficient causal connection between the injury and the vehicle. Regardless of Reynolds' continued viability, it is apparent that the supreme court has greatly reduced the causal connection or nexus which must exist between the injury and the vehicle before personal injury protection coverage is found.

      . We note that the trial court did not have the benefit of the Novak decision when it entered the summary judgment in this case.

      . This decision is consistent with this court's decision in Ferreiro. The holding there was that the injury (plaintiff shot by driver of car attempting to force plaintiffs truck off the road) was the result of an accident arising out of the use, maintenance or operation of a vehicle. Ferreiro merely follows the holding in Novak. The dicta in Ferreiro should not be construed as indicating uninsured motorist benefits would be allowed in the absence of an uninsured motorist or vehicle. The facts of that case indicate that uninsured motorist coverage would be available under the typical "hit-and-run motor vehicle” provision which defines such a vehicle as an uninsured automobile for purposes of coverage.

      . The present case is analytically indistinguishable from those, for example, in which a robber injures a bus driver, or the operator of an armored car, or a hitchhiker does so to the beneficent person who picked him up. (The majority doctrine may also apply when the vehicle is a valuable one such as a Rolls Royce, on the ground that its value influenced the decision to steal, but not to a mere Chevrolet.) I would have assumed that no one would consider that there was a “causal nexus” between the use of the vehicle and the injury in any of these instances.


author: SHARP, Judge. SHARP, Judge.

text:
    BENOIT, INC., a Minnesota corporation, Appellant/Cross-Appellee, v. DISTRICT BOARD OF TRUSTEES OF ST. JOHNS RIVER COMMUNITY COLLEGE OF FLORIDA and Giffen Roofing Company of Jacksonville, a Florida corporation, Appellees/Cross-Appellants.
    No. 83-860.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 1984.
    On Rehearing Feb. 14, 1985.
    Jon D. White of Jones & Langdon, P.A., Gainesville, for appellant/cross-appellee.
    Joe C. Miller, II of Miller, Shine & Tray-nor, P.A., Palatka, and Richard J. Geisert, Jacksonville, for appellees/cross-appellants.
   SHARP, Judge.

We reverse a judgment imposing liability on Benoit, Inc. (Benoit), for a defective roof on a building owned by St. Johns River Community College of Florida (St. Johns). The roof was constructed in 1977 pursuant to the Benoit System, At the jury trial, St. Johns proved that Benoit failed to warn users of its system not to combine its moisture barrier materials with asbestos because the asbestos would crack, thereby causing the roof to leak.

Critical in this case was whether Benoit knew of the asbestos problem in 1977, or whether it should have known about it and, therefore, whether it had a duty to warn users of the Benoit system not to combine it with asbestos felts. As part of its case in chief, St. Johns placed in evidence a letter it received from Benoit dated February 25, 1982, which stated:

This letter is to confirm my phone conversation of this date with you.... I pointed out the fact that my company does not recommend the use of asbestos felts on our tapered foam system and have published a statement to that effect. I am enclosing our Application Instructions Dated 1976, wherein we state that asbestos felts are not acceptable over our system and that organic felt or fiber-glass membrane should be used.

Benoit attempted to show that the date 1976 was erroneous, and that it should have said 1979. Clearly, the letter was exceedingly damaging to Benoit’s case.

Reluctant as we are to overturn a jury verdict, we are compelled to do so in this case because the February 25, 1982, letter should not have been admitted in evidence. It was an offer to settle or compromise St. John’s claim against Benoit. The trial judge simply blocked out that part of the letter pertaining to the settlement offer and admitted the remainder. That is improper under the Florida Rules of Evidence. Section 90.408, Florida Statutes (1983), provides:

Evidence of an offer to compromise a claim which was disputed as to validity or amount as well as any relevant conduct or statements made in negotiations, concerning a compromise, is inadmissible to prove liability or absence of liability for the claim or its value. (Emphasis supplied).

We agree with Atwater v. Gulf Maintenance & Supply, 424 So.2d 135 (Fla. 1st DCA 1982), that any part of a letter offering a settlement between the parties is barred by section 90.408. The old common law rule was that statements of independent facts made in an offer to compromise were admissible. Mutual Benefit Health and Accident Association v. Bunting, 133 Fla. 646, 183 So. 321, 326 (1938); McCormick on Evidence § 274 (Cleary 2d ed. 1972); Annot., 15 A.L.R.3d 13 (1967). This section alters the common law rule by giving greater protection to the offeror, thus furthering the public policy of this state which favors amicable settlement of disputes and avoidance of litigation.

Accordingly, we reverse the judgment in favor of appellees, and remand for a new trial.

REVERSED and REMANDED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

ON MOTION FOR REHEARING

SHARP, Judge.

We grant appellee’s motion for rehearing in order to clarify our previous opinion. We continue to adhere to our previous opinion in which we held that the trial court erred in its admission of certain evidence proffered by appellee.

We emphasize, however, that we reverse for a new trial on both liability and damages despite the fact that the issue of admissibility of evidence goes solely to the question of liability because “the pleadings and evidence raise issues so interrelating liability and damages that we think justice would thus be served by a new trial on both liability and damages.” Swan v. Wisdom, 386 So.2d 574, 576 (Fla. 5th DCA 1980).

MOTION FOR REHEARING GRANTED.

COBB, C.J., and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . 1 Gard Florida Evidence § 4.24 at 191 (1980).

      . See the law revision council note following section 90.408:
      Florida purports to follow the common-law rule that the exclusion does not apply to admission of fact. Mutual Benefit Flealth & Acc. Ass’n v. Bunting, supra: McCormick, Evidence § 274 (2nd ed. 1972). No Florida cases were found, however, where the use of such evi-dene had been appealed and ruled on.
      An inevitable effect of this exception permitting admissions of fact to be used as evidence is to inhibit freedom of communication with respect to compromise, and to serve as a trap for the unwary. These considerations account for the expansion of the rule to include evidence of conduct or statements made in compromise negotiations.


author: RYDER, Chief Judge.

text:
    Carolyn J. TINDALL and Robert N. Tindall, husband and wife, Appellants, v. James E. MILLER, M.D., Douglas G. Nuelle, M.D., Stanley H. Axelrod, M.D., Medical Center Hospital and Florida Patients Compensation Fund, Appel-lees.
    No. 83-2229.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1985.
    As Amended on Denial of Rehearing Feb. 27, 1985.
    Kurt J. Bomar of Martin, Stinnett & Graves, Chartered, Sarasota, for appellants.
    Steven J. Chase of Drymon, Bennett & Chase, P.A., Sarasota, for appellee James E. Miller, M.D.
   RYDER, Chief Judge.

Carolyn and Robert Tindall, unsuccessful plaintiffs in a medical malpractice action, appeal an award of attorney’s fees pursuant to section 768.56, Florida Statutes (1981). We reverse.

Section 768.56 provides for the award of a reasonable attorney’s fee to the prevailing party in medical malpractice actions. After a jury verdict in favor of the estate of the defendant/doctor, the trial court ordered the Tindalls to pay $39,704.00 in attorney’s fees. The Tindalls appealed the award, challenging the constitutionality of the statute.

We agree with the holding of the First District in Parrish v. Mullis, 458 So.2d 401 (Fla. 1st DCA, 1984) that section 768.56 is inapplicable where the cause of action accrued prior to the effective date of the statute, July 1, 1980. As the First District observed, constitutional considerations of due process preclude the retroactive application of section 768.56. Parrish v. Mullis. For that reason we hold, as did the First District, that section 768.56 may not be retroactively applied to a cause of action which accrued prior to its effective date. We recognize that this holding conflicts with Frankowitz v. Propsty, 464 So.2d 1225 (Fla. 4th DCA 1985).

Although the Tindalls filed their complaint on July 10, 1981, Carolyn Tin-dall’s knee surgery was performed on March 4, 1980, and the ensuing complications therefrom on which she based her complaint occurred shortly thereafter while she was still in the hospital. The record shows that Mrs. Tindall was aware of the alleged malpractice at least by the end of April 1980, therefore, her cause of action accrued prior to July 1, 1980. Salvaggio v. Austin, 336 So.2d 1282 (Fla. 2d DCA 1976).

Accordingly, we reverse and set aside that portion of the order assessing attorney’s fees against the Tindalls. We affirm the award of costs.

SCHOONOVER and LEHAN, JJ„ concur.

      . Section 768.56, Florida Statutes (1981), provides:
      (1) Except as otherwise provided by law, the court shall award a reasonable attorney’s fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization; however, attorney’s fees shall not be awarded against a party who is insolvent or poverty-stricken. Before initiating such a civil action on behalf of a client, it shall be the duty of the attorney to inform his client, in writing, of the provisions of this section. When there is more than one party on one or both sides of an action, the court shall allocate its award of attorney’s fees among prevailing parties and tax such fees against nonprevailing parties in accordance with the principles of equity. In no event shall a nonprevailing party be required to pay to any or all prevailing parties any amount in attorney’s fees in excess of that which is taxed against such nonprevailing party. A party who makes an offer to allow judgment to be taken against him shall not be taxed for the prevailing party’s attorney’s fees which accrue subsequent to such offer of judgment if the final judgment is not more favorable to the prevailing party than the offer. The court shall reduce the amount of attorney’s fees awarded to a prevailing party in proportion to the degree to which such party is determined by the trier of fact to have contributed to his own loss or injury.
      (2) This section shall not apply to any action filed before July 1, 1980.


author: BARFIELD, Judge.

text:
    Susan CALLAHAN, Appellant, v. SCHOOL BOARD OF MONROE COUNTY, Florida and Gallagher Bassett Insurance Service, Appellees.
    No. AU-194.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1985.
    Harvey Kaufman, of Kenney, Bowsell & Kaufman, West Palm Beach, for appellant.
    Donna S. Catoe, of Peters, Pickle, Flynn, Niemoeller & Downs, Miami, for appellees.
   ON MOTION TO REVIEW ASSESSMENT OF COSTS

BARFIELD, Judge.

The order of the deputy commissioner dated October 29, 1984, denying the motion of The Division of Workers’ Compensation for taxation of costs is REVERSED. The claimant was a prevailing party on appeal. See 455 So.2d 532. Denial of attorney fees to a claimant on appeal is not indicative that claimant was not the prevailing party. Attorney fees on appeal were denied for claimant’s failure to state grounds for award of a fee.

This case is remanded to the deputy commissioner for taxation of costs against the employer/carrier. The mandate previously withdrawn shall issue.

MILLS and BOOTH, JJ., concur.


text:
    STATE of Louisiana v. Derrick THORNTON, Charles Bingham and Edward Jones.
    No. 85-KK-0337.
    Supreme Court of Louisiana.
    Feb. 22, 1985.
   IN RE: Thornton, Derrick; Applying for Writ of Certiorari and/or Review, Stay; to the Court of Appeal, Fourth Circuit, Number K-3223; Parish of Orleans Criminal District Court Div. “F” Number 303-796.

Denied.

DIXON, C.J., would grant the writ. The state clearly did not carry its burden of supporting this warrantless arrest.

CALOGERO, J., would grant. The trial judge’s ruling was correct.


author: LEMMON, Justice.

text:
    KUSWA & ASSOCIATES, INC., General Contractors v. THIBAUT CONSTRUCTION CO., INC.
    No. 83-C-2646.
    Supreme Court of Louisiana.
    Feb. 25, 1985.
    Rehearing Denied April 11,1985.

      Mack E. Barham, Robert E. Arceneaux, Barham & Churchill, Barbara Treuting Casteix, Carl W. Cleveland & Associates, New Orleans, for defendant-applicant.
    Terrence J. Lestelle, New Orleans, Ama-to & Creely, Gretna, for plaintiff-respondent.
   LEMMON, Justice.

This is an action by Kuswa & Associates against Thibaut Construction Co. to recover damages, primarily loss of profits, caused by Thibaut Construction Co.’s allegedly illegal termination of a construction contract.

The dispute involved Kuswa’s subcontracting work on a construction project in which Thibaut was the general contractor in the construction of fourplex buildings. Kuswa was paid for all of the work that it performed during the seven months it spent on the project (except for $3,029.50 withheld in connection with labor liens). However, Kuswa contended that Thibaut had guaranteed Kuswa the subcontracting work on all 62 buildings involved in the project and that Thibaut’s illegal termination of the contract deprived Kuswa of the profits it would have made on the buildings constructed after the termination. On the other hand, Thibaut’s position was that its contracts with Kuswa did not contemplate work on any specific number of buildings, so that Kuswa’s only possible relief involved the disputed claim for completed work. Thibaut also sought by reconven-tional demand the costs incurred in remedying unsatisfactory work performed by Kus-wa.

The trial court awarded Kuswa most of its claim based on the unpaid invoice for work performed, but denied entirely its claim for loss of profits, concluding that the contracting parties had intended that the subcontracting work be performed on a building-by-building basis. The court of appeal amended the judgment and awarded Kuswa an additional $130,840.25 for loss of profits on unperformed work, holding that the parties intended a contract for 62 buildings. 440 So.2d 1338. We granted certio-rari, being primarily concerned with the intermediate court’s (1) reversal of the trial court’s findings regarding the intention of the contracting parties and (2) method of measuring damages and disregard for Kus-wa’s failure to mitigate damages. 445 So.2d 428. We now reverse on the basis that there was no manifest error in the trial court’s finding as to the intention of the parties to the construction contract.

Trianon Square was a subdivision of 65 vacant lots. Thibaut’s officers had formed a partnership which purchased the’ raw land and constructed the off-site improvements, intending to have Thibaut construct fourplex buildings to be retained by the developers. However, because permanent financing was unavailable for the planned construction of buildings, Thibaut’s officers decided to transfer lots to Thibaut in small groups and for Thibaut to construct and sell completed buildings to third parties or to individual partners.

In connection with this project, Kuswa submitted a proposal to Thibaut on February 9, 1979 to perform the painting work on individual fourplexes for $2,850 per building and the sheetrock work for 14.5 cents per square foot. The proposal was “Good for 30 Days from above Date”. The three-page document also contained the details of the work to be performed and further stated: “This bid is contingent on Kus-wa & Associates, Inc., doing the same work on all four-plexes which are sixty-two (62) in number.”

On March 28, 1979, Thibaut and Kuswa executed a “Sub-Contractor Base Agreement”, whereby Kuswa agreed to furnish certain labor and materials in accordance with plans and specifications. The agreement, completed on Thibaut’s printed form, listed the type of work as “Painting and Sheetrock.” Article 1 contained the printed words “The work to be performed hereunder is generally described as:”, and in the following blank space were typed the words “Bid from Kuswa & Associates, Inc.”. At the bottom of the one-page agreement, under the printed words “Price Lists”, were the typed words “See attachment schedule A” and “See attachment schedule B”.

Attached to the agreement were three sheets typed on Kuswa’s letterheads. Attachment A listed the completion steps for painting work and the payment schedule, the total amount being $2,850. Attachment B listed the completion steps for sheetrock work and the payment schedule per square foot, the total amount being 14.5 cents. Nothing in the Sub-Contractor Base Agreement or in the three attachments expressly provided that Kuswa was to perform painting and sheetrock work on any particular number of buildings. The February 9 proposal submitted by Kuswa was not attached to the Sub-Contractor Base Agreement nor expressly incorporated into it. The only arguable reference to the February 9 proposal in the March 28 contract was the use of the term “Bid by Kuswa & Associates, Inc.” to refer to the general description of the work.

The court of appeal decision was based on the factual finding that the parties intended to incorporate the February 9 proposal into the March 28 contract and to bind Thibaut to use Kuswa for painting and sheetrock work in 62 buildings. After reviewing the record, we conclude that the intermediate court merely substituted its judgment as to the intent of the parties for the judgment of the trial judge, who found that the term “Bid by Kuswa & Associates, Inc.” in the March 28 contract was intended to refer to Attachments A and B (which were also prepared by Kuswa). Since the trial judge’s factual finding as to intent was reasonable and was adequately supported by credible evidence in the record, the intermediate court erred when it failed either to accord deference to that finding or to articulate the reason that the finding was manifestly erroneous. See Cantor v. Koehring Co., 283 So.2d 716 (La.1973).

In cases in which the contract is ambiguous, the agreement shall be construed according to the intent of the parties. La.C.C. Art. 2045 (formerly C.C. Art. 1950). Intent is an issue of fact which is to be inferred from all of the surrounding circumstances.

Although Robert and Thomas Kus-wa testified that they were promised by Thibaut’s general manager and superintendent that they would be allowed to perform the painting and sheetrock work on 62 buildings, the general manager denied any such promise. Such conflicting testimony should be resolved on appellate review in favor of the party who prevailed on the issue in the trial court. Moreover, the background of uncertainty as to financing and overall development at the time of the March 28 contract supported the trial court’s conclusion that the parties did not intend for Thibaut to be bound on a contract covering all 62 buildings. This conclusion is further enforced by the fact that the contract contained the following express provision:

“13) This agreement, the approved price list attached hereto, the plans and specifications, and the individual Work Orders issued on each job constitute the entire contract, and there are no other agreements, oral or written by and between the parties hereto.” (Emphasis supplied.)

Additionally, Article 1 of the March 28 contract left a blank space to be completed with a general description of the work, and if the word “Bid” was intended to refer to the February 9 proposal, only the work description in the proposal could reasonably have been intended for adoption by reference. Finally, Kuswa concedes that the contract could have been terminated at any time by written notice, and it would be absurd to conclude that the parties contemplated loss of profits for unperformed work as the measure of damages for improper termination of such a contract.

In summary, the overall evidence supports the trial judge’s conclusion that the parties contemplated that Kuswa would work under the contract on a building-by-building basis. It is evident that the parties intended (as Kuswa contends) that Kuswa would work on more than one building. However, since no particular building or number of buildings was specified in the contract, the parties apparently intended for the contract price and work details to apply to each building to which Kuswa was assigned to work. Such an intent was reasonably inferred from the circumstances surrounding the contract, and the trial court was not clearly wrong in finding that this was the intent of the contracting parties.

Accordingly, the judgment of the court of appeal is set aside, and the judgment of the district court is reinstated.

DIXON, C.J., concurs.

      . It is therefore unnecessary to address the issue of damages.

      . The third attached sheet, Attachment I, listed modifications of certain other articles in the printed agreement. These modifications were pertinent to this particular subcontractor and are not at issue in this litigation.

      . Apparently, Thibaut completed the blank space in Article I, but Kuswa drafted the attachments, so the rule of construction that an ambiguity in a contract is construed against the party who drafted it is really not applicable. Moreover, that rule applies only "(i)n case of doubt that cannot be otherwise resolved”. La.C.C. Art. 2056.

      .At no point during the entire project was financing available for more than a few buildings at one time.

      . The conclusion that Article 1 was intended as a general reference to work to be performed is supported by the other contracts executed by the parties. The parties subsequently executed five additional agreements, using the same standard form contract. In Article 1 of each of the agreements (calling for a general description of the work to be performed) were the simple words "sheetrock", "carpentry trim”, or "framing”.

      . Kuswa did not claim that it adjusted its bid price downward, purchased or leased special equipment, declined other contracts or invitations to bid, or otherwise changed its usual method of operation in detrimental reliance on a representation that it would be allowed to perform painting and sheetrock work on 62 buildings. Kuswa sought damages only for loss of profits on painting and sheetrock work performed by other contractors after Kuswa was terminated.


text:
    Wayne R. DUNNE, Individually and as Natural Tutor for the Minor Kevin Dunne v. ORLEANS PARISH SCHOOL BOARD and Charles V. and Lynne Cuccia, d/b/a Gay-Lynne School of Dance.
    No. 84-C-0305.
    Supreme Court of Louisiana.
    Feb. 25, 1985.
    Rehearing Denied March 21,1985.

      Trevor G. Bryan, Jefferson, Bryan & Gray, New Orleans, for defendant-applicant.
    Peggy LeBlanc, Michael Riehlmann, To-bias, LeBlanc, Thompson & Waldrup, New Orleans, W. Marvin Hall, Hailey, McNamara, Hall, Larmann & Papale, Metaire, John A. Cvejanovich, New Orleans, for respondents.
   LEMMON, Justice.

This litigation resulted from an accident in which nine-year old Kevin Dunne fell from a set of gymnastic rings in the gymnasium of Abramson High School, which was owned by defendant Orleans Parish School Board. On the evening of the accident, Kevin and his parents attended a dance recital given by defendants Charles and Lynne Cuccia in an auditorium in the school complex, and Kevin wandered across the hall from the auditorium into the unlocked gymnasium where the ring set was located. The critical issue as to the Board’s liability is whether the set of gymnastic rings in an unlocked and unsupervised gymnasium, which was accessible to children who attended the dance recital in the adjacent auditorium and strayed from the auditorium into the gymnasium, presented an unreasonable risk of harm. We conclude that the risk of harm was not so unreasonable that the Board should be held liable for this particular injury, and we accordingly dismiss the action.

The Cuccias rented the auditorium for the purpose of staging the dance recital. Kevin attended the recital with his parents and sat next to his father in the rear of the auditorium. During the performance, Kevin obtained permission from his father to go into the hall for a drink of water with his ten-year old cousin, Robert. When Kevin and Robert entered the hall, they peered through the open gymnasium door and saw three boys playing on a set of gymnastic rings. Since Robert knew one of the boys, he entered the gymnasium and began a conversation.

While Robert and his friend talked, the other two boys invited Kevin to play on the ring set, which consisted of a pair of rings, each of which was attached to a rope that hung from a cross beam on the ceiling. Since Kevin was unable to reach the rings which were about seven feet above the floor, one of the boys obtained a chair and placed it under the rings. When Kevin stood on the chair and grabbed the rings, one of the boys pulled Kevin by his feet back toward the bleachers as far as he could go. Despite Kevin’s pleas, the boy released him, and the rope swung as far as it could, at which point Kevin “flipped off” and fell onto the gymnasium floor, injuring his head and shoulder.

The high school principal testified that the ring set, when not in use, was secured by means of a separate rope to a point on the wall above the collapsible bleachers, about 12 to 15 feet above the floor. The evidence did not establish who removed the rings from the secured position, but the principal stated that the removal was usually accomplished by use of a pole.

Only Kevin and Robert testified as eyewitnesses to the accident. At first, Kevin testified that when the rope swung “to the end of the rope”, he simply “flipped off” the rings. Upon being asked leading questions, however, Kevin verified that he flipped when the swing of the rope was abruptly halted. Robert clarified the fact that the ropes containing the rings were restrained by the tiedown rope from swinging beyond a certain distance from the bleachers wall.

The principal testified further that while all of the outside doors of the gymnasium and the building complex were always locked, it was impractical to keep locked the doors which led from the gymnasium into the hallway of the building complex. The gymnasium was used during the school day for classes, as well as after school and in the evening by athletic teams and community groups. The janitorial staff also required access to the gymnasium late at night for cleaning the place after evening use.

The court of appeal concluded that if the doors had been locked, this accident would not have occurred and that the Board’s failure to lock the doors was a eause-in-fact of the accident (which is a “but for” inquiry). 444 So.2d 1317. A determination of cause-in-fact, however, does not necessarily result in liability. Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821, 828 (1971). After determining causation, the court must also determine what was the duty imposed on the defendant and whether the risk which caused the accident was within the scope of the duty.

When the Board leased the auditorium for events such as dance recitals, it was foreseeable that children would wander into the hall and through the unlocked doors which led into the gymnasium. If the gymnasium contained anything which presented an unreasonable risk of harm to children who wandered inside, the Board had the duty to lock the gymnasium, or to remedy the unreasonably dangerous condition, or to otherwise protect wandering children from the danger. As stated at the outset, the crucial question in determining the Board’s duty and the scope of the risk in this case was whether the gymnastic ring set presented an unreasonable risk of harm under the circumstances.

No expert testimony was introduced to show that this normal gymnastic equipment located in a gymnasium was inherently dangerous or presented an unreasonable risk of harm in normal use. There was a potential risk, of course, that even an older child might fall from the suspended rings, and the principal admitted this risk when he stated that “the rings can be a dangerous element”. However, the danger was minimal to anyone who could reach the rings, unless that person attempted gymnastic feats beyond his skill. There was also a risk that a child might climb onto the bleachers or onto a table in the gymnasium and fall (or be pushed) from that position, but the bleachers and the table could hardly be considered as presenting an unreasonable risk of harm. The fact that an object can be misused is not determinative of whether it presents an unreasonable risk of harm.

In order to prevent anyone from attempting unsupervised gymnastics on the rings, the principal required that the rings be tied above the bleachers at all times when not in use. In that position, the rings certainly did not present an unreasonable risk of harm. The unidentified children playing in the gymnasium when Kevin entered (or someone who preceded them there) had apparently removed the rings from the position of security. Still, the gymnastic rings on suspended ropes did not present an unreasonable risk of harm in normal use (which did not include swinging). The real culprit was the unidentified child who misused the ring set by swinging Kevin on the rings against his will.

We conclude that the scope of the Board’s duty simply did not encompass the risk that a small child would be enticed by older boys to grab the rings (which had been removed by some person, not shown to be one for whom the Board was responsible, from the position of security) by standing on a chair and would then be forced to swing on the rings against his will, an act outside the normal use of the ring set. There simply is no ease of association between any duty imposed on the Board and the injury which occurred. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). We therefore conclude that the Board is not liable for this accident under a duty-risk analysis.

Accordingly, the judgment of the court of appeal is reversed, and plaintiff’s action is dismissed.

DENNIS, J., dissents finding no reversible error in the lower court decision.

      . Robert testified that the tiedown rope, which was "holding the two ropes for the rings to the wall”, would "only go out to a certain length, so that if you swung out instead of going even further it would just stop and jerk, and that’s what it did and Kevin flew off of them”.

      . Plaintiff joined as defendants the parents of Kirk Koster, Robert's friend who was in the gymnasium when Robert and Kevin entered, but the evidence established that one or both of the other unidentified boys swung Kevin on the rings.