author: DANIEL S. PEARSON, Judge.

text:
    KUMAR CORPORATION, Appellant, v. NOPAL LINES, LTD., Lorentzen Shipping Agencies, Inc., and S.E.L. Maduro (Florida), Inc., Appellees.
    No. 83-2317.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Rehearing Denied Feb. 26, 1985.

      Finley, Kumble, Wagner, Heine, Under-berg, Manley & Casey and C. Randolph Coleman, Miami, for appellant.
    Mitchell, Harris, Canning, Murray & Usich and C. Robert Murray, Jr.; Smathers & Thompson and Fernando S. Aran, Miami, for appellees.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

Kumar Corporation, the plaintiff below, appeals from a summary judgment entered in favor of all defendants on Kumar’s suit to recover damages for the loss of certain cargo. The stated basis for the judgment was that Kumar had no legally cognizable interest in the cargo and was thus without standing to sue for its loss when the action was instituted, and that efforts to confer standing on Kumar, made after the claim was time barred under the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300-1315 (1982), did not serve to breathe life into Kumar’s timely-filed suit.

The operative and undisputed facts are these. Kumar Corporation is in the business of shipping electronic equipment to Latin America. One of its largest customers is Freddy Nava, a Venezuelan wholesaler. In late 1981, Nava told Kumar that he wanted to purchase 700 television sets and spare parts. Kumar and Nava agreed that Nava would not pay Kumar until Nava actually sold the merchandise in Venezuela.

Thereafter, Kumar obtained the televisions and spare parts from its supplier, received them in its Miami warehouse, loaded them on a trailer, and on February 4, 1982, delivered the trailer to freight handler S.E.L. Maduro (Florida), Inc., one of the defendants, at Maduro’s lot at the Port of Miami. The shipping documents reflected that the goods were sold by Kumar to Nava for $144,417.00, C.I.F. Maracaibo (Venezuela).

On February 16, 1982, a Maduro employee discovered that the trailer was missing from the Maduro lot. Sometime later, the trailer was found elsewhere, abandoned and empty.

Well within a year of these events, Ku-mar sued Maduro, along with Nopal Lines, Ltd. and Lorentzen Shipping Agency, Inc., the carrier and the carrier’s shipping agent, respectively. The defendants challenged Kumar’s standing to sue and moved for summary judgment.

The defendants’ position is, as it was below, that under Section 672.320, Florida Statutes (1981), the term C.I.F., or its equivalent, required Kumar, the seller, to perform certain obligations with respect to the goods, including, inter alia, placing the goods in possession of the carrier, and that when these obligations were properly performed, as the defendants contend they were, the risk of loss or damage to the goods passed to Nava, the buyer, and that, therefore, since Kumar could not have suffered the loss, it had no standing to sue.

Kumar concedes that an ordinary incident of a C.I.F. contract is that, upon tender of the required documents, the buyer must pay the agreed price without awaiting the arrival of the goods. It argues, however, that its agreement with Nava to postpone Nava’s obligation to pay for the goods until they were actually sold in Venezuela modified this ordinary incident and, in turn, modified the ordinary consequence of the C.I.F. contract (that the risk of loss shifts to the buyer) so as to leave the risk of loss on the seller. Ku-mar’s second position is that if the term C.I.F. controls and thus the risk of loss shifted to Nava, Kumar nonetheless brought suit on Nava’s behalf or as Nava’s assignee and thereby had standing. In support of this latter position, Kumar filed two affidavits executed by Freddy Nava. The first, executed by Nava on July 6, 1983, and filed before the summary judgment hearing, stated in pertinent part:

“I hereby ratify and endorse the action that Kumar Corporation has taken by filing and prosecuting the lawsuit referenced ... above, appoint Kumar Corporation my agent, trustee and representative of any interest I may have in that lawsuit or any other cause of action I may have against the Defendants in that lawsuit, and hereby assign to Kumar Corporation all right, title and interest that I may have against the Defendants named in that lawsuit or any other parties for any other cause of action arising out of the loss, disappearance or theft of the goods. I authorize Kumar Corporation, its officers, directors, agents or attorneys to proceed in whatever manner, method or practice they deem appropriate in pursuing the action(s) in this matter on my behalf.”

The second, executed by Nava on July 7, 1983, and filed at the summary judgment hearing, was expressly intended to supplement the first affidavit. It recited in pertinent part:

“2. Mr. Lionel Harms and Mr. Curt Harms, from Kumar Corp., notified me in February, 1982, that the trailer containing the television sets I ordered from them had been stolen. At that time, in February 1982, I authorized Kumar Corp., directly to Lionel Harms, to take whatever action they deemed appropriate to pursue any rights that I had against any persons regarding the loss of that cargo, including negotiations for settlement, or the institution of legal action against any party including the Defendants in the action referenced in paragraph 1 above.
“3. I was aware at all times of the actions taken by Kumar Corp. in pursuing the claim against Nopal Lines, Ltd., Lorentzen Shipping Agency, Inc., and S.E.L. Maduro (Florida), Inc., and was informed of each action taken on a timely basis by Mr. Lionel Harms. I agree with and ratify each action taken by Kumar in the prosecution of its claim against those Defendants and did agree with and ratify each action taken at the time taken, or shortly after the time each action was taken.”

The trial court rejected Kumar’s arguments and granted the defendants’ motion:

“[Ojnce the Plaintiff, KUMAR CORPORATION, delivered possession of the subject trailer to the Defendant, S.E.L. MADURO (FLORIDA), INC., title to the television sets and spare parts passed to the consignee, Freddy Nava, and the Plaintiff, KUMAR. CORPORATION, no longer had any legal interest in said shipment. More particularly, the Court finds that at the time of instituting the above •captioned proceedings the Plaintiff, KU-MAR CORPORATION, had no standing to bring a claim for cargo loss emanating out of the subject shipment; nor was standing subsequently conferred upon the Plaintiff, KUMAR CORPORATION, by the consignee, Freddy Nava, vis-a-vis Mr. Nava’s July 6, 1983 Affidavit inasmuch as Mr. Nava’s claim, as of the date of the execution of his Affidavit, was time barred under the Carriage of Goods by Sea Act.”

We reverse the summary judgment and the consequent order taxing costs against Kumar. We conclude that under any view of the facts, Kumar had standing to sue. If Kumar’s agreement with Nava concerning the time of payment (or Kumar’s failure to procure a policy of insurance) had the effect of modifying the C.I.F. terms so as to prevent the risk of loss from passing to Nava, then, of course, Kumar had standing to sue the appellees by virtue of its agreement with Nava. If, on the other hand, as the trial court concluded, the risk of loss had passed to Nava, then Kumar, by virtue of having borne the loss in Nava’s stead, had standing to sue as Nava’s subrogee or, subrogation aside, as Nava’s agent, its action having been later ratified by Nava.

We begin with some observations about the relationship between the overlapping but theoretically separate concepts of “standing” and “real party in interest.” See 6 C. Wright & A. Miller, Federal Practice & Procedure, § 1542 (1971). In its broadest sense, standing is no more than having, or representing one who has, “a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.” Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31 L.Ed.2d 636, 641 (1972). See Gieger v. Sun First National Bank of Orlando, 427 So.2d 815 (Fla. 5th DCA 1983); Argonaut Insurance Co. v. Commercial Standard Insurance Co., 380 So.2d 1066 (Fla. 2d DCA), rev. denied, 389 So.2d 1108 (Fla.1980). Under this definition, it can hardly be doubted that Kumar, which under its agreement with Nava was not to be paid until Nava actually sold the merchandise in Venezuela and would thus suffer a loss of $144,417.00 if its suit does not succeed, has a sufficient stake in the outcome of an otherwise justiciable controversy so as to have standing. See Levatino Co. v. M/S Helvig Torm, 295 F.Supp. 725 (S.D.N.Y.1968).

However, standing encompasses not only this “sufficient stake” definition, but the at least equally-important requirement that the claim be brought by or on behalf of one who is recognized in the law as a “real party in interest,” that is, “the person in whom rests, by substantive law, the claim sought to be enforced,” Author’s Comment to Fla.R.Civ.P. 1.210, 30 Fla.Stat. Ann. 304, 306-07 (1967); see 3A J. Moore, Moore’s Federal Practice, 1117.02 (2d ed. 1984). The basic purpose of rules requiring that every action be prosecuted by or on behalf of the real party in interest is merely “to protect a defendant from facing a subsequent similar action brought by one not a party to the present proceeding and to ensure that any action taken to judgment will have its proper effect as res judicata_” Prevor-Mayorsohn Caribbean, Inc. v. Puerto Rico Marine Management, Inc., 620 F.2d 1, 4 (1st Cir.1980). The Florida real party in interest rule, Fla. R.Civ.P. 1.210(a), permits an action to be prosecuted in the name of someone other than, but acting for, the real party in interest. See Durrant v. Dayton, 396 So.2d 1225 (Fla. 4th DCA 1981); 39 Fla.Jur.2d Parties, § 9 (1982); see also Thomas v. Martin, 100 Fla. 146, 129 So. 602 (1930) (real party in interest may bring suit in name of nominal party); Holyoke Mutual Insurance Co. v. Concrete Equipment, Inc., 394 So.2d 193 (Fla. 3d DCA), rev. denied, 402 So.2d 609 (Fla.1981). Thus, where a plaintiff is either the real party in interest or is maintaining the action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing.

Kumar’s argument that it is the real party in interest proceeds, as we have said, from the premise that its agreement to postpone Nava’s obligation to pay for ■the goods modified the ordinary consequence of the C.I.F. contract that the risk of loss shifts to the buyer. A C.I.F. contract is a recognized and established form of contract, the incidents of which are well known. Thus, if a buyer and seller adopt such a contract, “they will be presumed, in the absence of any express term to the contrary, to have adopted all the normal incidents of that type of contract,” D.M. Day, The Law of International Trade, 4 (1981), one of which is that the buyer, not the seller, bears the risk of loss when the goods are delivered to the carrier and the seller’s other contractual obligations are fulfilled. D.M. Day, supra, at 77. A C.I.F. contract is not' a contract “that goods shall arrive, but a contract to ship goods complying with the contract of sale, to obtain, unless the contract otherwise provides, the ordinary contract of carriage to the place of destination, and the ordinary contract of insurance of the goods on that voyage, and to tender these documents against payment of the contract price.” C. Schmitthoff, Schmitthoffs Export Trade, The Law and Practice of International Trade, 26-27 (7th ed. 1980).

It is clear, however, that parties may vary the terms of a C.I.F. contract to meet their own requirements. D.M. Day, supra, at 55. But where the agreed-upon variation is such that it removes á vital ingredient of a C.I.F. contract, then the contract ceases to be a C.I.F. contract. D.M. Day, supra, at 55. Thus, “if according to the intention of the parties the actual delivery of the goods [to the buyer] is an essential condition of performance, the contract is not a c.i.f. contract.” C. Schmit-thoff, supra, at 39.

In the present case, Kumar and Nava agreed to payment upon Nava’s sale of the goods in Venezuela. Whether they intended that the arrival of the goods in Venezuela was to be a condition for the payment of the price (thereby negating an essential ingredient of the C.I.F. contract) or intended that if the goods did not arrive, payment would nonetheless be made on tender of the documents on the date when the goods would normally have arrived, see U.C.C. § 2-321(3) (1977) (consistent with the nature of a C.I.F. contract), is not clear. What is clear is that the use of the term C.I.F. does not ipso facto make the contract a C.I.F. contract if the contract has been altered in a manner that is repugnant to the very nature of a C.I.F. contract. See Steuber Co. v. Hercules, Inc., 646 F.2d 1093 (5th Cir.1981) (agreement altering C.I.F. contract “must control over the general reference to C.I.F. contained on the face of the document”). Therefore, because the record before us does not (as it must for summary judgment purposes) conclusively show that the contract remained a true C.I.F. contract despite the agreement between Kumar and Nava concerning the payment for the goods, it was improper for the trial court to conclude as a matter of law that the risk of loss passed to Nava when Kumar delivered the goods to the shipper.

But even assuming, arguendo, that we were to conclude, as did the trial court, that the risk of loss passed to Nava merely by virtue of the label C.I.F. on the contract, Kumar must still prevail. Under the C.I.F. contract, Kumar was obliged to procure insurance, and by not doing so, acted, intentionally or unintentionally, as the insurer of the shipment. As the insurer of the shipment, Kumar was obliged to pay Nava, the risk bearer, for the loss when the goods were stolen. Being legally obliged to pay Nava’s loss, Kumar would thus be subrogated to Nava’s claims against the appellees. See Underwriters at Lloyds v. City of Lauderdale Lakes, 382 So.2d 702 (Fla.1980); Trueman Fertilizer Co. v. Allison, 81 So.2d 734 (Fla.1955); Lovingood v. Butler Const. Co., 100 Fla. 1252, 131 So. 126 (1930); Meyer v. Florida Home Finders, 90 Fla. 128, 105 So. 267 (1925); Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916); Price v. Scharps, 405 So.2d 1043 (Fla. 3d DCA 1981); Furlong v. Leybourne, 138 So.2d 352 (Fla. 3d DCA 1962); Ulery v. Asphalt Paving, Inc., 119 So.2d 432 (Fla. 1st DCA 1960). Since a subrogee is the real party in interest and may sue in its own name, Holyoke Mutual Insurance Co. v. Concrete Equipment, Inc., 394 So.2d 193, Kumar would have standing to sue under this theory.

Finally, Kumar contends that if, arguendo, Nava was the real party in interest, then Kumar asserted the claim as Nava’s agent and on Nava’s behalf, and that the record indisputably reflects Nava’s ratification of Kumar’s action. As we have already noted, the Florida real party in interest rule is permissive only, and a nominal party, such as an agent, may bring suit in its own name for the benefit of the real party in interest. See Durrant v. Dayton, 396 So.2d 1225 (Fla. 4th DCA 1981); 39 Fla.Jur.2d Parties, § 9 (1982). See also Holyoke Mutual Insurance Co. v. Concrete Equipment, Inc., 394 So.2d 193. Kumar contends, and we agree, that Nava’s affidavits unequivocally show that Nava ratified and endorsed Kumar’s action in bringing suit on Nava’s behalf. It is a fundamental proposition of the law of agency that a principal may subsequently ratify its agent’s act, even if originally unauthorized, and such ratification relates back and supplies the original authority. See Houseman v. The Cargo Of The Schooner North Carolina, 40 U.S. (15 Pet.) 40, 10 L.Ed. 653 (1841); 2A C.J.S. Agency, § 104 (1972); 2 Fla.Jur.2d Agency & Employment, § 50 (1977).

In sum, we are compelled to conclude that under any view of the record in this-ease, Kumar had standing to sue when it instituted the action against the appellees. At that time, Kumar was either the real party in interest (as initial risk bearer or subrogee of Nava) or sued, as it had a right to do, on Nava’s behalf as Nava’s agent, which action was ratified by Nava. Because suit was timely filed by a party with standing to sue, the entry of summary judgment on the ground that the suit was limitations-barred was error.

Reversed and remanded for further proceedings.

      . Title 46 U.S.C. § 1303(6), a provision of the Carriage of Goods by Sea Act (C.O.G.S.A.), limits the time within which to file suit to one year from the date cargo was delivered or should have been delivered to its final destination. Arrow Beef Corp. v. South Atlantic & Caribbean Lines, Inc., 280 So.2d 43 (Fla. 3d DCA 1973); Coquette Originals, Inc. v. Canadian Gulf Line of Florida, 240 So.2d 847 (Fla. 3d DCA 1970).

      . Section 672.320(2), Florida Statutes (1981), provides:
      "(2) Unless otherwise agreed and even though used only in connection with the stated price and destination, the term C.I.F. destination or its equivalent requires the seller at his own expense and risk to:
      "(a) Put the goods into the possession of a carrier at the port for shipment and obtain a negotiable bill or bills of lading covering the entire transportation to the named destination; and
      “(b) Load the goods and obtain a receipt from the carrier (which may be contained in the bill of lading) showing that the freight has been paid or provided for; and
      "(c) Obtain a policy or certificate of insurance, including any war risk insurance, of a kind and on terms then current at the port of shipment in the usual amount, in the currency of the contract, shown to cover the same goods covered by the bill of lading and providing for payment of loss to the order of the buyer or for the account of whom it may concern; but the seller may add to the price the amount of the premium for any such war risk insurance; and
      "(d) Prepare an invoice of the goods and procure any other documents required to ef-feet shipment or to comply with the contract; and
      "(e) Forward and tender with commercial promptness all the documents in due form and with any indorsement necessary to perfect the buyer’s rights.”
      Comment 1 to the parallel section of the Uniform Commercial Code, U.C.C. § 2-320, 1A U.L.A. 97, 98 (Master ed. 1976), states:
      "The C.I.F. contract is not a destination but a shipment contract with risk of subsequent loss or damage to the goods passing to the buyer upon shipment if the seller has properly performed all his obligations with respect to the goods. Delivery to the carrier is delivery to the buyer for purposes of risk and 'title’. Delivery of possession of the goods is accomplished by delivery of the bill of lading, and upon tender of the required documents the buyer must pay the agreed price without awaiting the arrival of the goods and if they have been lost or damaged after proper shipment he must seek his remedy against the carrier or insurer. The buyer has no right of inspection prior to payment or acceptance of the documents.”

      . In this sense, standing is treated as "an element of the constitutional requirement that there be a 'case or controversy’; when thus applied, it acts as a limitation on the subject matter jurisdiction of the federal courts. In this context, objections to standing, unlike [real party in interest] objections, cannot be waived and may be raised by a federal court sua sponte." 6 C. Wright & A. Miller, supra § 1542, at 642-43 (footnotes omitted). The quoted statement is, of course, equally applicable to Florida courts.

      . The stake need not be an economic one. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

      . In comparison, the federal rule, Fed.R.Civ.P. 17(a), mandates that actions be prosecuted in the name of the real party in interest, but allows for later joinder, or substitution of, or ratification by, the real party in interest in cases where the action has been instituted by other than the real party in interest.

        . There is no indication in this record that the parties expressly agreed that Kumar rather than Nava would bear the risk of loss of the goods in transit. Their agreement that Nava would have the goods on consignment does not necessarily address the question of who bears the risk of loss of the goods in transit.

      . The record does not reflect and the parties have not addressed the circumstances surrounding the failure of Kumar to procure insurance. The procurement of insurance is one of the requirements that a seller must fulfill as part of a C.I.F. contract. See § 672.320(2)(c), Fla.Stat. (1981). While parties are allowed to modify this requirement by an express agreement, it does not appear that one existed here. Kumar's general manager admitted that Nava did not instruct Kumar not to get insurance. It might well be argued that Kumar's failure to procure insurance vitiated the C.I.F. contract and kept the risk- of loss from passing to Nava. Once again, this argument would make Kumar the real party in interest at the outset.

      .It is inconsequential that Nava has never actually paid Kumar for the goods, and Kumar has never actually paid Nava for the loss of the goods. The right to be subrogated to Nava’s claim arises by the debt to Nava being cancelled in fact and cannot depend on a formalistic exchange of checks in an equal amount between Nava and Kumar.

      .Kumar also relied — we think unnecessarily— on Nava’s assignment of his claim as shown by Nava’s July 6, 1983, affidavit. Kumar contended that the assignment either related back as a matter of law to the time when suit was brought or, alternatively, that the supplemental affidavit of July 7, 1983, clearly shows that Nava had assigned the cause of action to Kumar at the time suit was first filed. The appellees countered that since the assignment was made after C.O.G.S.A.’s one-year statute of limitations had expired, Nava had nothing to assign, and there can be no relation back.
      In our view, it simply does not matter to the disposition of this case whether Nava first assigned his claim to Kumar at the time Kumar brought suit or in July 1983, when the affidavit was executed. Nava was perfectly capable of assigning his claim, and the assignment was valid whenever made. Cf. Green v. Gould, 63 So.2d 327 (Fla.1953) (where assignors were legally incapable of assigning claim, putative as-signee’s standing to sue cannot arise until valid assignment made). If the assignment occurred at the time that Kumar instituted the action, then Kumar, as assignee, was the real party in interest throughout this suit. See Spears v. West Coast Builders' Supply Co., 101 Fla. 980, 133 So. 97 (1931); Robinson v. Nix, 22 Fla. 321 (1886). On the other hand, if the assignment first occurred in July 1983, then the assignment merely had the effect of changing Kumar’s capacity from an agent suing on behalf of Nava to Nava's assignee. A change of capacity, of course, does not constitute a new cause of action and relates back to the original filing. See Griffin v. Workman, 73 So.2d 844 (Fla.1954); Talan v. Murphy, 443 So.2d 207 (Fla. 3d DCA 1983), rev. denied, 451 So.2d 849 (Fla.1984); Foss v. Mansell, 378 So.2d 802 (Fla. 3d DCA 1979); Haines v. Leonard L. Farber Co., 199 So.2d 311 (Fla. 2d DCA 1967), cert. discharged, 210 So.2d 218 (Fla.1968). Accord, Longbottom v. Swaby, 397 F.2d 45 (5th Cir.1968).

      . Florida Rule of Civil Procedure 1.120 provides that ”[i]t is not necessary to aver the capacity of a party to sue,” and that the party challenging capacity has the affirmative duty to make this an issue by specific negative averment.

      . It has long been the rule in the admiralty cases that an agent may sue on behalf of his principal so long as the agent’s action is ratified before final judgment. See, e.g., Houseman v. The Cargo Of The Schooner North Carolina, 40 U.S. (15 Pet.) 40, 10 L.Ed. 653 (1841); Aunt Jemima Mills Co. v. Lloyd Royal Belge, 34 F.2d 120 (2d Cir.1929); United States v. United States Steel Products Co., 27 F.2d 547 (S.D.N.Y.1928). This rule is expressly incorporated in Federal Rule of Civil Procedure 17(a), see Techem Chemical Co. v. M/T Choyo Maru, 416 F.Supp. 960 (D.Md.1976). Because Florida's real party in interest rule is permissive, no joinder or ratification language is found in the rule.


source: Caselaw Access Project

license: Public Domain

text:
    CORAT INTERNATIONAL, INC., a Florida corporation, Appellant, v. John Joseph TAYLOR, as representative of Lloyd’s and Andrew Weir Insurance Company, Ltd., of London, Appellees.
    No. 84-63.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Maland & Turetsky and Robert C. Ma-land, Miami, for appellant.
    Hayden & Milliken and William B. Milliken, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Corat International, Inc., a supplier of prefabricated housing and institutional equipment, shipped sixteen containers of telephone equipment to a customer in Saudi Arabia, Communication Equipment & Technology Establishment (C.E.T.E.). As required by the letter of credit, the goods were shipped C.I.F. Jeddah (Saudi Arabia), and Corat arranged through its freight forwarder to insure the shipment. Insurance was obtained from the appellees, John Joseph Taylor and Andrew Weir Insurance Co., Ltd. of London (collectively, Lloyds of London; hereafter, “Lloyds”), and was issued “in account of ... Corat International, Inc.”

After two of the containers washed overboard during the voyage, Corat replaced the lost goods at its expense and filed suit against Lloyds for the loss. According to the timely-filed affidavit of Corat’s president, C.E.T.E. had assigned to Corat all rights to any insurance proceeds. Nonetheless, the trial court entered summary judgment in favor of Lloyds, reasoning that:

“The Plaintiff herein is not the real party in interest. Florida Rules of Civil Procedure Rule 1.210(a) provides that every action must be prosecuted in the name of the real party in interest. In the case sub judice Plaintiff was the shipper of goods to the Saudi government. The goods in question were shipped pursuant to an ordinary C.I.F. contract. When goods are shipped C.I.F., title to the goods passes to the consignee upon delivery to the carrier, and the consignee bears the risk of loss in transit. Farbwerke Hoeschst A.G. v. M/V “Don Nicky”, 589 F.2d 795 (5th Cir., 1979); York-Shipley, Inc. v. Atlantic Mutual Insurance Company, 474 F.2d 8 (5th Cir., 1973) [vacated, 476 F.2d 1283 (5th Cir.1973) ]. The shipper retains the risk of loss only until he delivers the goods to the carrier. Sig M. Glukstad, Inc. v. Lineas Areas Paraguayas, 619 F.2d 457 (5th Cir., 1980). There is no evidence in the record that the consignee (who is the real party in interest) has ratified the Plaintiffs capacity to sue in the consignee’s behalf. At no time did the consignee assign its right to sue to the Plaintiff. Plaintiff can not now cure this fatal defect. '* * * (T)he right of a Plaintiff to recover must be measured by the facts as they existed when the suit was instituted.’ The City Counsel [sic] of the City of North Miami Beach v. Trebor Construction Corp., 277 So.2d 852, 853 (3 D.C.A., Fla.1973) [cert. discharged, 296 So.2d 490 (Fla.1974) ]; City of Coral Gables v. Sakolsky, 215 So.2d 329, 335 (3 D.C.A., Fla.1968) [cert. denied, 225 So.2d 526 (Fla.1969) ]; Voges v. Ward, 123 So. 785, 791 (Fla.1929). The subject suit was filed by Plaintiff on November 25, 1981. At that time Plaintiff was not the real party in interest and had no standing to sue.”

Corat appeals. We reverse.

Although we agree that Corat was not the real party in interest when it filed suit, the disposition of Corat’s claim against the insurers does not, as the trial court believed, turn on whether Corat was the real party in interest, because as Florida Rule of Civil Procedure 1.210(a) plainly tells us, an action need not be prosecuted in the name of the real party in interest. See Kumar Corporation v. Nopal Lines, Ltd., 462 So.2d 1178 (Fla. 3d DCA 1984).

Corat, as the named insured, most assuredly was a nominal party to the contract entered into by it for the benefit of C.E. T.E., and as such could bring suit in its own name without joining the real party in interest. See Durrant v. Dayton, 396 So.2d 1225 (Fla. 4th DCA 1981); 39 Fla. Jur.2d Parties, § 9 (1982). Indeed, Florida Rule of Civil Procedure 1.210(a) expressly provides:

“[a] party with whom or in whose name a contract has been made for the benefit of another ... may sue in his own name without joining with him the party for whose benefit the action is brought.”

Cf. Stanley Fine Furniture, Inc. v. North River Insurance Co., 411 So.2d 210 (Fla. 3d DCA), rev. denied, 418 So.2d 1280 (Fla.1982) (suggesting that Florida Rule of Civil Procedure 1.210 makes a nominal party to an insurance contract a real party in interest). Thus, as of November 25,1981, when this suit was instituted, Corat had standing to sue.

C.E.T.E., as the intended third-party beneficiary of the contract between Corat and Lloyds, see U.C.C. § 2-320, 1A U.L.A. 97, 98 comment 3 (1976), was the real party in interest when Corat began this action. See American Surety Co. of New York v. Smith, 100 Fla. 1012, 130 So. 440 (1930); Woodbury v. Tampa Waterworks Co., 57 Fla. 243, 249, 49 So. 556, 559 (1909) (on rehearing); 46 C.J.S. Insurance, § 1266 (1946). If or when it assigned its claim for the insurance proceeds to Corat is immaterial to the question of standing. The only effect of such an assignment would be to change the capacity of Corat from nominal party to assignee, and thus make Corat the real party in interest. A change of the plaintiffs capacity does not constitute a new cause of action, and any such change relates back to the original filing. See Kumar Corporation v. Nopal Lines, Ltd., 462 So.2d at 1185 n. 9, and cases collected.

Accordingly, the summary judgment under reveiw is reversed and the cause remanded for further proceedings.

      . The bracketed citations do not appear in the trial court’s order.

      . Nonetheless, Corat insists that it is the real party in interest by virtue of being the named insured in the Lloyds’ policy. The flaw in this argument is that under well-settled law, no contract for insurance of property is enforceable, "except for the benefit of persons having an insurable interest in the things insured at the time of the loss." § 627.405(1), Fla.Stat. (1983). See Knott v. State ex rel. Guaranty Income Life Ins. Co., 136 Fla. 184, 186 So. 788 (1939) (contracts which insure persons without insurable interest are wagering contracts and against the public policy of Florida); Peninsular Fire Insurance Co. v. Fowler, 166 So.2d 206 (Fla. 2d DCA 1964) (same); 44 CJ.S. Insurance, § 175(a) (1945). The notion that parties can create an insurable interest by contracting for it has been expressly rejected in Florida. See Meerdink v. American Ins. Co., 137 Fla. 587, 188 So. 764 (1939). Since there are no other facts upon which Corat can rely to show that it was the real party in interest, compare Kumar Corporation v. Nopal Lines, Ltd., 462 So.2d 1178 (Fla. 3d DCA 1984), we agree that Corat was not.

      .Florida Rule of Civil Procedure 1.210(a) provides in pertinent part:
      "Parties Generally. Every action may be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another or a party expressly authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought _” (emphasis supplied).
      By contrast, the federal counterpart, Fed.R. Civ.P. 17(a), states that ”[e]very action shall be prosecuted in the name of the real party in interest” (emphasis supplied) and allows the plaintiff a reasonable time to join or substitute the real party in interest or to obtain the real party in interest's ratification of the suit.


author: SHIVERS, Judge.

text:
    PROCTER & GAMBLE COMPANY, a foreign corporation; Procter & Gamble Paper Products Company, a foreign corporation and Procter & Gamble Distributing Company, a foreign corporation licensed to do business in Florida, Petitioners, v. Victoria B. SWILLEY and Roger Swilley, Respondents.
    No. BA-290.
    District Court of Appeal of Florida, First District.
    Jan. 15, 1985.

      Stephen E. Day, Taylor, Day, Rio & Merrier, Jacksonville, and Thomas S. Calder, Frank C. Woodside, III, and John E. Jev-icky, Dinsmore & Shohl, Cincinnati, Ohio, for petitioners.
    Dominic M. Caparello, Robert Scott Cox, and Anne Longman, Messer, Rhodes & Vickers, Tallahassee, for respondents.
    Bronson C. La Follette, Atty. Gen., and LeRoy L. Dalton, Asst. Atty. Gen. of Wis., Madison, Wis., for amicus curiae Merlin S. Bergdoll.
   SHIVERS, Judge.

Petitioners seek review by certiorari of a non-final order of the trial court which grants respondents discovery of research and related documents in petitioners’ possession. We find that the trial court’s order departs from the essential requirements of law to the extent it permits respondents to discover research and related documents that are claimed by petitioners to be work product. That portion of the trial court’s order therefore is quashed. We affirm that part of the trial court’s order that permits respondents to discover research and related documents received by petitioners from outside researchers.

This case involves a product liability action instituted by the respondents, plaintiffs in the proceedings before the trial court, against petitioners, defendants below. The petitioners are various Procter & Gamble companies (hereinafter referred to as P & G) and respondents are Victoria Swilley and her spouse, Roger Swilley. Mrs. Swilley was hospitalized in January and August of 1980 for, allegedly, toxic shock syndrome (hereinafter referred to as TSS). Mrs. Swilley contends that she contracted TSS as a result of using Rely tampons. Rely tampons are a product that was manufactured and distributed by P & G prior to P & G’s withdrawal of this product from the market in September, 1980.

According to the unrebutted affidavits and exhibits submitted to the trial court by P & G, the following events, as pertains to this case, followed P & G’s decision to withdraw Rely tampons from the market. In October, 1980, at the direction of counsel, P & G formed a special research team drawn from P & G’s in-house scientists and staff personnel called “The Toxic Shock Syndrome Research Group.” This group of scientists and personnel was established subsequent, and in response, to the numerous lawsuits that had begun to be filed, and continue to be filed, against P & G with respect to the alleged connection between TSS and the use of Rely tampons. The specific purpose in establishing this team of research personnel, allegedly, was, and is, to investigate the cause of TSS in order to assist defense counsel in defending against the TSS lawsuits that are being filed against P & G. This research team was put under the direction and control of defense counsel. No project allegedly is undertaken by this in-house research team without defense counsel’s prior consent and approval.

In addition to establishing an in-house research team, P & G began reviewing applications for funding, and began funding, scientists at various research institutions throughout the world in connection with research into TSS. Applications for this funding are reviewed on an annual basis by P & G. Dr. Merlin Bergdoll, a prominent microbiologist at the University of Wisconsin, is one of the individuals who has received, and continues to receive, funding for his research into TSS from P & G.

The terms of Dr. Bergdoll’s grant, allegedly indicative of the other grants given by P & G to outside researchers, provide that Dr. Bergdoll and P & G are to keep in close contact with each other through frequent correspondence and mutual visits at each other’s investigative sites. P & G is to have full access to the records and measurements comprising the data obtained in Dr. Bergdoll’s study. Dr. Bergdoll, however, maintains full rights to any publication^) resulting from his research, although he is required to submit his proposed publication(s) to P & G for review and comment prior to publication. To date, P & G has contributed funds of more than three million dollars, at over 20 research institutions, in promulgation of this outside research into TSS.

Pursuant to the discovery process, respondents attempted to have P & G voluntarily produce the documents in P & G’s possession relating to its in-house research and the TSS research documents in P & G’s possession received from outside researchers. In particular, respondents requested that P & G produce the studies in its possession received from Dr. Bergdoll. P & G refused, claiming that the documents prepared by P & G’s in-house research team, and in the in-house research team’s notes and memoranda concerning the research received from outside researchers, are its (P & G’s) work product. As to the outside research in P & G’s work product, it was nevertheless protected from discovery because this research is preliminary in nature and, therefore, not reasonably calculated to lead to admissible evidence. Dr. Bergdoll filed an affidavit in support of P & G’s position. Respondents filed a motion to compel.

Hearings were held on respondents’ motion to compel on April 4, 1984, and June 19, 1984. At these hearings, respondents asserted through counsel that even assuming that P & G’s in-house TSS research is work product, which respondents did not concede, this research was discoverable under the exception to the work product rule that work product is discoverable when a party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Respondents’ counsel asserted that it was an undue hardship on respondents to obtain the substantial equivalent of P & G’s in-house research because of the financial discrepancies between the parties. In particular, counsel asserted that it was ridiculous to think that respondents, who have limited financial resources, could finance the reproduction of the research performed by P & G’s in-house research team. As to the research in P & G’s possession furnished by outside researchers, respondents’ counsel argued that this research is relevant to their case and that there is no academic privilege in Florida that would prevent the discovery of this research.

In response to respondents’ arguments, P & G’s counsel represented that there were numerous institutions and individuals with available research on TSS, including the Center for Disease Control in Atlanta; the State of Minnesota’s Health Department, and two professors from New York University. P & G’s counsel noted that these latter two individuals had testified against P & G in other TSS cases. As to the outside research in P & G’s possession, P & G’s counsel asserted, in addition to the argument that this research is preliminary and not relevant, that the compelled disclosure of this research would have an adverse effect on independent scientific research into medical questions. P & G argued that researchers would tend to confine their work to projects unrelated to legal actions, if they knew that their preliminary research could be disclosed to parties involved in litigation.

In the order on review, the trial court compelled the production of P & G’s in-house TSS research and the outside TSS research documents in P & G’s possession, specifically including, as pertains to the in-house research, P & G’s in-house scientists’ notes and memorandum concerning the outside research, and, as pertains to the outside research, Dr. Bergdoll’s research. The court found that the documents claimed by P & G to be work product were subject to the exception to the work product rule of need and the failure to obtain the substantial equivalent of these materials without undue hardship because of the magnitude of P & G’s in-house research and the financial resources of P & G. As to the outside research in P & G’s possession, the trial court found that the possible inconclusive nature of this research went more to admissibility, then discoverability. The trial court’s order provides for in camera inspection by the trial court of any documents that petitioners believe to be privileged.

At the outset, respondents argue that this ease does not meet the stringent requirements for granting a petition for writ of common law certiorari. In partial support of their position, respondents cite cases, not involving the discovery context, that stand for the proposition that common law certiorari is an extraordinary remedy that is rarely used to correct interlocutory orders. These cases are inapplicable to the instant case.

Respondents also state that the trial court’s order carefully follows the requirements of the Florida discovery rules by not being overbroad or by failing to protect against the disclosure of trial counsel’s thoughts and strategy. Although we agree with these statements, no contention has been raised by P & G that the trial court’s order is contrary to the essential requirements of law on these grounds.

Finally, respondents admit that discovery orders may be reviewed by writ of certiorari. We agree. Non-final orders that permit discovery are a classic example of the type of interlocutory order that may be reviewed by writ of certiorari. See, e.g., Greyhound Lines, Inc. v. Jackson, 445 So.2d 1107 (Fla. 4th DCA 1984); City of Williston v. Roadlander, 425 So.2d 1175 (Fla. 1st DCA 1983); Marine Investment Co. v. Van Voorhis, 162 So.2d 909 (Fla. 1st DCA 1964). As stated in Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957) (after noting the rule that a court will review an interlocutory order only where it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner):

Considering this case in light of the foregoing rule we are of the view that the circumstances are such as to justify our review of the questioned order. If plaintiff is wrongfully required to answer defendant’s interrogatories, she is beyond relief. We concede no means by which on appeal this court could extract such knowledge, once gained, from the mind of the defendant, for truly ‘the moving finger having writ moves on nor any appeal shall lure it back to cancel half a line.’

Id. at 410.

Next, respondents contend that we need not reach the question of whether the work product exception applies to P & G’s in-house research, since, it is contended, this research is not P & G’s work product. We disagree. Documents and tangible things prepared in anticipation of litigation or for trial by or for a party or by or for that party’s representative, including his attorney, consultant, surety, indemnitor, insurer or agent, are a party’s work product and, therefore, subject to qualified immunity from discovery. See Fla.R.Civ.P. 1.280(b)(2). Documents and tangible things prepared in the ordinary course of business, pursuant to public requirements unrelated to litigation, or at a time when the “mere likelihood” of litigation exists are not entitled to protection from discovery under the work product doctrine. See Cotton States Mutual Insurance Co. v. Turtle Reef Associates, Inc., 444 So.2d 595 (Fla. 4th DCA 1984). We hold that scientific or other technical documents or tangible things prepared in anticipation of litigation or for trial by or for a party or by or for that party’s representative are not disqualified from constituting a party’s work product. See Burlington Industries v. Exxon Corp., 65 F.R.D. 26, 41-42 (D.Md.1974) (that court stating that work product includes as protected material those materials which are prepared by non-attorneys so long as the preparation is in anticipation of litigation or preparation for trial, and noting that documents should not be denied the protection of work product merely because the documents include technical data.) Applying these principles to the instant case, in light of the sworn statements presented to the trial court by P & G, we find that the documents and intangible things prepared by P & G’s in-house TSS research team are P & G’s work product.

Having determined that the documents and tangible things prepared by P & G’s in-house research team are work product, we next must determine whether these materials are still discoverable pursuant to Fla.R.Civ.P. 1.280(b)(2). Rule 1.280(b)(2) provides that a party may obtain discovery of another party’s work product only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. It is well established in Florida that absent this required showing of need and undue hardship to obtain the substantial equivalent of another party’s work product by other means, a party’s work product will remain immune from discovery. See, e.g., Scotchel Enterprises, Inc. v. Velez, 455 So.2d 1129 (Fla. 4th DCA 1984); Wackenhut Corp. v. Crant-Heisz Enterprises, Inc., 451 So.2d 900 (Fla. 2nd DCA 1984); Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307 (Fla. 5th DCA 1983); pet. for review denied, 446 So.2d 100 (Fla.1984); Cavalere v. Graham, 432 So.2d 756 (Fla. 5th DCA 1983); Alachua General Hospital, Inc. v. Zimmer USA, Inc., 403 So.2d 1087 (Fla. 1st DCA 1981); Insurance Company of North America v. Noya, 398 So.2d 836 (Fla. 5th DCA 1981); Transamerica Insurance Co. v. Maze, 318 So.2d 200 (Fla. 2d DCA 1975). Also well established in Florida is the principle that the unsworn analysis of a party’s attorney and/or a bare assertion of need and undue hardship to obtain the substantial equivalent insufficient to satisfy this showing. See, e.g., Chrysler Corp. v. Miller, 450 So.2d 330 (Fla. 4th DCA 1984); Winn-Dixie Stores, Inc. v. Nakutis, supra; Cavalere v. Graham, supra. See generally Westinghouse Elevator Co. v. DFS Construction Co., 438 So.2d 125 (Fla. 2d DCA 1983); Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982). It also has been indicated that the showing of need encompasses a showing of diligence by the party seeking discovery of another party’s work product. See Transamerica Insurance Co. v. Maze, 318 So.2d 200, 201 (Fla. 2d DCA 1975). See also Alamo Rent-A-Car v. Loomis, 432 So.2d 746 (Fla. 4th DCA 1983); H. Trawick, Jr., Florida Practice and Procedure § 16-3 (1983).

Applying these principles to the case at hand, we find that respondents failed to make the showing required by Rule 1.280(b)(2). Our determination is not that respondents cannot, or may not be able to, make the requisite showing. Rather, our holding simply is that respondents failed to make the requisite showing before the trial court.

Sub judice, the only presentation by respondents at the hearings on their motion to compel with respect to respondents’ need of P & G’s in-house TSS research in the preparation of their case and that respondents are unable to obtain without undue hardship the substantial equivalent of this research by other means was the unsworn analysis/argument of respondents’ counsel. No sworn testimony, by live expert opinion testimony, affidavit, or otherwise, was presented to the trial court to support respondents’ counsel’s assertions. In particular, no showing was made by respondents as to why the research materials suggested by P & G, e.g., the Center for Disease Control studies, are not the substantial equivalent of P & G’s in-house research and/or why it is impractical for respondents to obtain these studies without undue hardship. Moreover, no showing was made as to the extent of respondents’ own diligence in preparing their case for trial, which showing would bear on respondents’ need for P & G’s in-house research. Absent the prescribed showing of Rule 1.280(b)(2), P & G’s work product should not have been ordered produced.

The trial court’s stated reasons for permitting the discovery of the materials claimed by P & G to be its work product were the magnitude of P & G’s in-house research and the resources of P & G, as opposed to the resources of respondents. However, based on the evidence presented to the trial court, we have no way of knowing whether other entities have performed studies on TSS of equal magnitude to that of P & G’s in-house research team and, if such studies exist, why it would be impractical for respondents to obtain these studies without undue hardship. The burden was on respondents to make this showing. See Transamerica Insurance Co. v. Maze, 318 So.2d 200 (Fla. 2d DCA 1975). Respondents’ counsel’s bare assertion at the trial court level, and on appeal, that there is no substantial equivalent to the materials respondents seek and that no amount of diligence could produce such materials does not satisfy this burden.

We note that no showing was made by respondents that P & G has a monopoly on TSS research and, therefore, that TSS research is otherwise unavailable, or that P & G’s in-house research is unique in other ways. If such a showing had been made, together with a showing that respondents have a compelling necessity for P & G’s in-house research, then the financial ability of respondents to hire scientific experts to duplicate P & G’s in-house research would be relevant on respondents’ ability to obtain substantially equivalent research to P & G’s by other means without undue hardship. However, without such a showing, we decline to assume what respondents’ counsel term “the obvious.”

Accordingly, that portion of the trial court’s order that permits respondents to discover research and related documents that are claimed by P & G to be its work product is quashed. Our holding is without prejudice to respondents to renew their motion to compel.

Finally, we turn to P & G’s contention that the trial court departed from the essential requirements of law by ordering the discovery of the documents and tangible things in P & G’s possession received from outside researchers. We disagree. Contrary to P & G’s assertion, we find that these documents are relevant, that is, germane, to the subject matter of the pending action. Fla.R.Civ.P. 1.280(b)(1); Marine Investment Co. v. Van Voorhis, 162 So.2d 909, 910 (Fla. 1st DCA 1964); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2008 (1970). We cannot say that these documents may not be considered reasonably calculated to lead to the discovery of admissible evidence. Accordingly, respondents are entitled to obtain discovery of these documents unless they are privileged. Fla.R.Civ.P. 1.280(b)(1).

However, at the present, there is no academic privilege in Florida. See Marshall v. Anderson, 459 So.2d 384 (Fla. 3d DCA 1984). We are not at liberty to create such a privilege. Id. Moreover, even if we were at liberty to create an academic privilege, we would not apply an academic privilege to the facts of this case.

Fundamental fairness dictates to us that respondents, a party, should be able to obtain the research and related documents furnished P & G, the opposing party, by “independent researchers.” This set of facts distinguishes this case from the situation where research data has not been ordered disclosed because, in part, the research data was obtained from patients and doctors pursuant to the researcher’s promise that it would remain confidential. See Andrews v. Eli Lilly & Co., supra, 97 F.R.D. 494 (N.D.Ill.1983). We do not find a party’s promise not to disclose a researcher’s data, other than to its employees and attorneys for review and testing in defense of litigation to which the research relates, analogous to the situation in Andrews v. Eli Lilly & Co., supra. Rather, we find that the “right to every man’s evidence” outweighs any alleged adverse effects that would result from the disclosure of the data received by P & G from outside researchers. Notably, the trial court ordered discovery of only the outside research and related documents in P & G’s possession. The trial court also provided in its order for the filing of a protective order by P & G.

Accordingly, that part of the trial court’s order that permits respondents to discover research and related documents received by P & G from outside researchers is affirmed.

Petitioners' writ of certiorari is granted in part. The trial court’s order is quashed, in part, and affirmed, in part.

• WENTWORTH and NIMMONS, JJ., concur.

      . Surprisingly, to us at least, neither party furnished us with a copy of the complaint in this case as part of the appendix to the respective parties’ petition and response. We therefore are uncertain of the date the Swilleys brought their action against P & G. We glean from the transcript of the hearing on the Swilleys’ motion to compel that their action was based on the theo-ríes of strict liability, breach of warranty, and/or negligence.

      . P & G’s decision to withdraw Rely tampons from the market apparently was in response, at least in part, if not to a greater extent, to statistical studies done by the Center for Disease Control in Atlanta showing a statistical relationship between tampon usage and TSS.

      . Respondents ask us to treat scientific or other technical documents or tangible things prepared in anticipation of litigation by or for a party or by or for that party's representative differently from other documents and tangible things prepared by or for a party or that party’s representative in anticipation of litigation. We decline to do so. We find no exception pertaining to scientific or other technical data in Rule 1.280(b)(2) which would disqualify these types of materials from qualifying as a party’s work product. We decline to judicially carve out such an exception. We do not believe our ruling on this point will frustrate the ends of justice. A party seeking discovery of scientific or other technical data claimed by another party to be its work product will be able to obtain this data upon the showing required by Rule 1.280(b)(2).

      . The salient unrebutted representations by P & G which lead us to our conclusion that the documents and tangible things prepared by P & G’s in-house research team are P & G’s work product are as follows. First, P & G represents, through the sworn statements of P & G's employees and others, that its in-house research team was formed in response, and subsequent, to the initiation of TSS litigation against P & G. It is alleged that the first TSS lawsuit was filed against P & G on August 17, 1980. From this we find that the documents and tangible things prepared by P & G’s in-house research team were not prepared at a time when there was a "mere likelihood” that TSS litigation would be commenced against P & G.
      Next, P & G represents that its in-house research team was developed as a research project separate and distinct from P & G’s regular research programs and in direct response to defense counsel’s efforts to defend against TSS litigation. P & G represents that its in-house research team would not have been established, but for the TSS litigation instituted against P & G. From this we find that the documents prepared by P & G’s in-house research team were not prepared in P & G’s ordinary course of business.
      Although respondents suggested at the trial court level, and further suggest on appeal, that P & G conducted its in-house research on TSS pursuant to public requirements, there was no proof introduced supporting this assertion by respondents, only the statements of respondents’ counsel. This is insufficient. See, e.g., Chrysler Corp. v. Miller, 450 So.2d 330 (Fla. 4th DCA 1984).
      Finally, we note that we find unpersuasive respondents’ argument that all of P & G’s in-house research should be disclosed for use as impeachment, since P & G has agreed to timely disclose the in-house research that will be relied upon by the experts P & G intends to call at trial. This procedure should afford respondents the ability to sufficiently cross-examine P & G’s experts. Moreover, we note that in 8 C. Wright & A. Miller, Federal Practice and Procedure § 2025 (1970), it is stated that a party’s “mere surmise that he might find impeaching matter has been held not sufficient to justify production [of a party’s work product].” See also United States v. Chatham City Corp., 72 F.R.D. 640, 643 (S.D.Ga.1976).

      . We make no determination as to the extent of respondents' diligence in preparing their case for trial. Respondents may have been very diligent. However, no showing of respondents' diligence was presented to the trial court. We consider such a showing significant, since a party should not be able to delve into another party’s work product upon the simple filing of a motion to compel, and thereby benefit from that party’s investigatory/preparatory efforts, without a showing why the requesting party has a compelling need for the opposing party's work product in preparing his or her case for trial.

      . We have allowed Dr. Bergdoll to file an ami-cus memorandum in support of P & G's position.


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    John Linwood BARRACK, Appellant, v. STATE of Florida, Appellee.
    No. 82-2447.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.
    Rehearing Denied Feb. 27, 1985.

      Sharon B. Jacobs of Chaykin, Karlan & Jacobs, Coral Gables, and Earle Lee Butler of Butler & Pettit, P.A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

This cause arises from the appellant’s conviction and sentence for violating section 718.202(7), Florida Statutes (1979). We uphold the constitutionality of section 718.202, but reverse for other reasons.

The facts are that the appellant operated a condominium development business so that a corporation known as Sea Cabin, Inc. became his alter ego. The proof of this is evidence from the manner in which the appellant utilized condominium parcel purchase funds for purposes which were not authorized by section 718.202. The appellant, therefore, qualified as a condominium developer under the statute. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984); Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982); Levenstein v. Sapiro, 279 So.2d 858 (Fla.1973); Aztec Motel, Inc. v. State ex rel. Faircloth, 251 So.2d 849 (Fla.1971).

The appellant complains about venue in that certain relevant transactions in this ease occurred outside Broward County. It appears from the transcript the appellant stipulated that venue was properly vested in Broward County, and the circumstances of this case justify placement of venue there. §§ 910.05, 910.06; Copeland v. State, 457 So.2d 1012 (Fla.1984); Tucker v. State, 417 So.2d 1006 (Fla. 3d DCA 1982). The essential facts upon which the appellant was convicted are that he obtained funds from condominium parcel purchasers and failed to deposit these funds in an approved escrow account as required by section 718.202, although construction, furnishing, and landscaping of the property submitted to condominium ownership were never substantially completed.

The appellant complains that the provisions of section 718.202 violate due process because they are ambiguous and arbitrary. We disagree. The section provides in precise and easily understood terms a condominium developer’s obligations with reference to receiving and handling condominium parcel purchase funds. The wisdom of the legislature in its effort to protect an unsuspecting segment of society can be seen from the facts of this case.

It might have been simpler and more to the point for the legislature to merely restrict use by a developer of any such purchase funds, as opposed to specifying the type of escrow accounts that should be utilized; however, we can understand that the enacting body foresaw payment into the specified escrow accounts as a key to all else that is required by the section. We are mindful that the subject law places no specific controls over the escrow agent or agency receiving the funds, however, we do not perceive this as a defect.

The facts of this case are such that we could affirm except that we hold the information which purports to charge crimes under section 718.202(7) is fundamentally defective and the appellant was convicted and sentenced for nonexistent crimes. Section 718.202(7), the sole criminal enforcement provision of the statute, provides as follows:

“Any developer who willfully fails to pay all required funds into the escrow accounts required by this section is guilty of a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084.”

The appellant was convicted of Counts II and III of the information. These counts are titled “Theft of Condominium Deposits by Prohibited Use.” Each count basically charges that the appellant

did willfully use prior to closing the transaction ... a portion of funds, paid to him prior to commencement of construction on a contract for the purchase of a condominium or which were required to be held in a special account for salaries, commissions, or expenses of salesmen, or for advertising, or for other purposes other than the actual construction and development of the condominium property in which the unit to be sold was located, or for construction purposes absent an express provision, including required legend in the contract for sale which authorized such use, contrary to F.S. 718.202(2), F.S. 718.202(3), and F.S. 718.202(7).

We note that no statute other than section 718.202 is listed in Counts II and III of the information. The appellant was sentenced pursuant to his conviction on Counts II and III for the crimes of “Theft of Condominium Deposits by Prohibited Use.”

We do not know why the state did not simply charge the appellant with having willfully failed to pay all required funds into a required escrow account. The subject of theft is not mentioned in section 718.202, and, indeed, the act of theft is not a necessary ingredient of a violation of the statute. A developer might commit other crimes when he willfully fails to pay all required funds into a required escrow account, however, no such crimes were properly charged in the instant case. For example, the willful failure to pay funds into an approved escrow account is an act entirely different from willfully using, prior to closing, a portion of the funds. Lastly, even if the wording of Counts II and III of the information could be interpreted so that the provisions of section 718.202(7) are said to be lodged therein, one is left with the dilemma that the appellant was convicted and sentenced for nonexistent crimes. There is no such crime as “Theft of Condominium Deposits by Prohibited Use” provided for in section 718.202. The information is dismissed without prejudice.

Since this case is being remanded, we comment on one other matter properly raised by the appellant. A procedure was employed in the course of jury selection below so that the appellant was effectively precluded from exercising backstrike peremptory challenges. We hold that a trial judge is prohibited from restricting parties from backstriking prospective jurors. We also believe the better procedure, under ordinary circumstances, is to swear the jury as a body rather than singly, as was done in this case. Rivers v. State, 458 So.2d 762 (Fla.1984); Valdes v. State, 443 So.2d 223 (Fla. 1st DCA 1983); Blanco v. State, 438 So.2d 404 (Fla. 4th DCA 1983); Grant v. State, 429 So.2d 758 (Fla. 4th DCA 1983).

REVERSED.

WALDEN and BARKETT, JJ., concur.


author: PER CURIAM.

text:
    Jose Ramon REYES, Appellant, v. The STATE of Florida, Appellee.
    No. 84-550.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.

      Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The judgment of conviction for trafficking in cocaine is affirmed upon holdings that there was no error in the instructions to the jury; the evidence was sufficient to warrant conviction; even if, arguendo, the point had been preserved by timely objection at trial, the police officer’s testimony did not constitute a comment on the defendant’s right to remain silent, see Antone v. State, 382 So.2d 1205 (Fla.1980); and Section 893.135, Florida Statutes, is not, as the defendant asserts, unconstitutional, see State v. Benitez, 395 So.2d 514 (Fla.1981); Stone v. State, 402 So.2d 1330 (Fla. 1st DCA 1981). The judgment of conviction for possession of cocaine is reversed upon the authority of Bell v. State, 437 So.2d 1057 (Fla.1983).

Affirmed in part; reversed in part.


author: NESBITT, Judge. SCHWARTZ, Chief Judge

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Appellant, v. Steven Ira POLLACK, Appellee.
    No. 84-781.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.

      Paul A. Rowell and R.W. Evans, Tallahassee, for appellant.
    Arthur E. Huttoe and John Lipinski, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The Department of Highway Safety and Motor Vehicles (the Department) appeals an order denying its petition for forfeiture of Mr. Pollack’s 1973 Mercedes Benz. We reverse.

On June 13, 1983, at approximately 2:45 a.m., Trooper Hollinger stopped Mr. Pollack’s car when he observed him driving slowly and erratically. After conducting a field sobriety test, Hollinger placed Pollack under arrest. Pollack requested that his vehicle be towed and informed Hollinger that his car keys were in the vehicle. While searching for the keys, Hollinger found a red container filled with white powder on the front seat and three pills on the console in the passenger compartment. An inventory search at the jail led to discovery of a plastic bag containing white powder in Pollack’s pocket. All of the substances tested positively as methaqualone.

The Department filed a petition for forfeiture basically alleging that Pollack had used his vehicle to facilitate the transportation, concealment and possession of a felony amount of methaqualone in violation of section 932.702, Florida Statutes (1981). After hearing, the trial judge denied the petition, stating as his ground the Department’s failure “to show that the vehicle was being used in a drug operation or was significantly involved in a criminal enterprise.” The Department contends that the trial court erred by requiring such a showing. We agree.

In Griffis v. State, 356 So.2d 297 (Fla.1978), the supreme court interpreted sections 943.41 through 943.44, Florida Statutes (1975), the predecessors to sections 932.701 through 932.704, Florida Statutes (1981), as permitting a forfeiture of vehicles only upon a showing of “a nexus between the illegal drugs found in the car and the furtherance of an illegal drug ‘operation’.” The court discerned a legislative intent to provide for forfeiture of the “tools of the trade” of drug peddlers and traffickers. Consequently, the court reversed the judgment of forfeiture in Grif-fis, where the state showed only the possession of marijuana and cocaine while in a truck.

In 1980, the legislature, in response to Griffis, amended the predecessor statutes. Ch. 80-68, §§ 1-3, Laws of Fla. The amendment dictates that any motor vehicle in which a felony amount of a controlled substance is possessed “shall be contraband subject to forfeiture” and “shall be seized.” § 932.703, Fla.Stat. (1981). Its evident that the legislature has abrogated Griffis and the statute now requires forfeiture in cases where possession of contraband constitutes a felony. In re Forfeiture of a 1977 Datsun 280Z Automobile, 448 So.2d 78 (Fla. 4th DCA), review denied, 453 So.2d 43 (Fla.1984); Williams v. Miller, 433 So.2d 33 (Fla. 5th DCA 1983); City of Clearwater v. Malick, 429 So.2d 718 (Fla. 2d DCA 1983); Naples Police Department v. Small, 426 So.2d 72 (Fla. 2d DCA 1983); State v. Peters, 401 So.2d 838 (Fla. 2d DCA 1981). But see Smith v. Hindery, 454 So.2d 663 (Fla. 1st DCA 1984) (statute authorizing forfeiture is discretionary). While the penalty is admittedly harsh, the legislature has apparently decided that the forfeiture of vehicles for mere felony possession will be helpful in the fight against the trafficking, transportation, sale, use and possession of drugs. It is within their province to have so decided.

Applying the statutes to the facts at hand, it is clear that Pollack’s car is forfeitable contraband. Methaqualone is a controlled substance, the possession of which is a second degree felony. §§ 893.-03(l)(d), 893.13(l)(a)l., Fla.Stat. (Supp. 1982). Consequently, the motor vehicle in which the methaqualone was located at the time of the seizure is contraband subject to forfeiture. §§ 932.701, 932.703(1), Fla.Stat. (1981). The fact that a felony amount of a controlled substance was possessed and transported is sufficient to require forfeiture, Heinrich v. Miller, 444 So.2d 589 (Fla. 2d DCA 1984); Malicie; Small, absent a showing of lack of knowledge under section 932.703(2), Florida Statutes (1981). See, e.g., Weisz v. Miami Shores Village, 461 So.2d 138 (Fla. 3d DCA 1984). Pollack, on appeal, tries to bring himself within this subsection by arguing that he did not know the drugs were in the car. The trial court apparently rejected this argument as it was not a stated ground for denying the petition for forfeiture. We find such a rejection was proper because Pollack’s testimony was insufficient to establish a lack of knowledge where, as here, some of the drugs were found on his person. The Department met its burden of establishing probable cause that the vehicle was illegally used and Pollack failed to rebut that showing. See In re Forfeiture of Approximately Forty-Eight Thousand Nine Hundred Dollars ($48,900.00) in U.S. Currency, 432 So.2d 1382, 1385 (Fla. 4th DCA 1983).

Finding that the trial court erred in requiring the Department to show use of the vehicle in a drug “operation” and that Pollack did not establish lack of knowledge, we reverse and remand with directions to enter a judgment of forfeiture.

SCHWARTZ, Chief Judge

(specially concurring).

I concur in the conclusion that Pollack’s vehicle is forfeitable as a matter of law, but only because of the methaqualone found on the front seat and console. I am not at all satisfied, however, that a vehicle may be forfeited merely because the driver (or, for that matter, any occupant with the owner’s knowledge) has felony-contraband on his person. In this situation, it might well be thought that the vehicle is being used to transport the person, rather than, as the statute requires, the contraband. Since it is unnecessary to do so, I would therefore neither base the reversal in this case even in part upon the methaqualone in Pollack’s pocket nor intimate a view as to whether that fact alone would lead to the same result.

      . Those portions of sections 932.701-703, Florida Statutes (1981) which are relevant to the discussion in this case are as follows:
      932.701 Short title; definition of "contraband article".—
      (1) Sections 932.701-932.704 shall be known and may be cited as the "Florida Contraband Forfeiture Act."
      (2) As used in ss. 932.701-932.704, "contraband article" means:
      (a) Any controlled substance as defined in chapter 893....
      932.702 Unlawful to transport, conceal, or possess contraband articles; use of vessel, motor vehicle, or aircraft. — It is unlawful:
      (1) To transport, carry or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft.
      (2) To conceal or possess any contraband article in or upon any vessel, motor vehicle, or aircraft.
      (3) To use any vessel, motor vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.

        (4) To conceal or possess any contraband article.
      932.703 Forfeiture of vessel, motor vehicle, aircraft, other personal property, or contraband article; exceptions.—
      (1) Any vessel, motor vehicle, aircraft, and other personal property which has been or is being used in violation of any provision of s. 932.702 or in, upon, or by means of which, any violation of said section has taken or is taking place, as well as any contraband article involved in the violation, shall be seized. ... In any incident in which possession of any contraband article defined in s. 932.701 (2)(a)— (d) constitutes a felony, the vessel, motor vehicle, aircraft, or personal property in or on which such contraband article is located at the time of seizure shall be contraband subject to forfeiture. ...
      (2) No property shall be forfeited under the provisions of ss. 932.701-932.704 if the owner of such property establishes that he neither knew nor should have known after a reasonable inquiry that such property was being employed or was likely to be employed in criminal activity.

      . The supreme court emphasized the express legislative intent to make Florida’s forfeiture statute uniform with its federal counterpart. Griffis, 356 So.2d at 299. Somewhat mysteriously, however, the court failed to cite to the numerous federal cases which support forfeiture on a showing of mere possession. See, e.g., United States v. One 1976 Porsche 911S, 670 F.2d 810 (9th Cir.1979); United States v. One Clipper Bow Ketch Nisku, 548 F.2d 8 (1st Cir.1977); United States v. One 1957 Oldsmobile Automobile, 256 F.2d 931 (5th Cir.1958); Associates Investment Co. v. United States, 220 F.2d 885 (5th Cir.1955); United States v. One 1977 Chevrolet Pickup, 503 F.Supp. 1027 (D.Colo.1980); United States v. One 1973 Jaguar Coupe, 431 F.Supp. 128 (S.D.N.Y.1977); United States v. One 1975 Mercury Monarch, 423 F.Supp. 1026 (S.D.N.Y.1976); United States v. One 1973 Dodge Van, 416 F.Supp. 43 (E.D.Mich.1976); United States v. One 1971 Porsche Coupe Automobile, 364 F.Supp. 745 (E.D.Pa.1973). Many of the cited cases also indicate that the courts have little, if any, discretion in forfeiture cases.

      . The constitutionality of imposing forfeiture on one whose conduct is criminal has not been seriously questioned. United States v. One 1967 Porsche, Model 911-Targa, 492 F.2d 893, 894 (9th Cir.1974); One 1971 Porsche Coupe, 364 F.Supp. at 748; Parker v. State, 121 Ariz. 477, 591 P.2d 569, 573-74 (Ct.App.1979). See also,

        Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) (upholding the constitutionality of Puerto Rico's forfeiture statute when applied to innocent property owners who had not done all that could reasonably be expected of them to prevent the illegal use of their property); but see, State v. One (1) Porsche 2-Door, 526 P.2d 917, 919 (Utah 1974) (questioning the constitutionality of providing for forfeiture in cases involving the possession of small amounts of drugs).

      . Pollack's testimony on the issue was as follows:
      Q: Do you deny possessing methaqualone on [sic] your vehicle or on your person at the time you were stopped and subsequently arrested by Trooper Hollinger?
      A: I did not see these items that you are talking about.
      The answer does not really respond to the question and it in no way negates knowledge of the presence of drugs in Pollack’s pocket.


author: BARKDULL, Judge.

text:
    ALLSTATE INSURANCE COMPANY, a foreign corporation, Appellant, v. Madeline HILSENRAD and Steven Garfield, Appellees.
    Nos. 84-1374, 84-1687.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1985.

      McCune, Hiaasen, Crum, Ferris & Gardner and John R. Hargrove, Fort Lauder-dale, for appellant.
    Horton, Perse & Ginsberg and Edward Perse, Ronald W. Jabara, Miami, for appel-lees.
    Before BARKDULL, HENDRY and BASKIN, JJ.
   BARKDULL, Judge.

The defendant appeals an adverse final summary judgment and an order assessing attorney’s fees and taxing costs.

The appellee Garfield, a 28 year old resident in the Hilsenrads’ home, sustained injuries as a result of an automobile striking his bicycle. The owner and operator of the car which hit him was under-insured. Allstate insured the Hilsenrads with a policy providing uninsured motorist coverage. Garfield was not a named insured on the policy. Garfield has never had any connection by blood, marriage or adoption to the Hilsenrads. The Hilsenrads had known Garfield for some time prior to the time he moved in with them. While living with them, Garfield did not contribute any money to his support. At the time of the accident, Garfield had lived as a resident in the Hilsenrad home for at least seven years.

Allstate denied coverage claiming that Garfield was not entitled to benefits because he was not connected by blood, marriage or adoption to the Hilsenrads and therefore he was not a “relative” of the Hilsenrads entitled to coverage under the policy. The trial court held that Garfield is and was at all times a “resident in household relative” of Hilsenrad. We find this to be error. Garfield was not an insured under the terms of the policy, nor under the definition of “relative”, as provided in Section 627.732(4), Florida Statutes (1981).

The appellee relies heavily on Brokenbaugh v. New Jersey Manufacturers Ins. Co., 158 N.J.Super. 424, 386 A.2d 433 (1978) which we find not to be controlling under the facts in this case. Coverage therein was found for the minor child who was injured when she was living with her natural mother and a man (the insured) as a family unit. This was an exception to the general rule that one not a relative by blood or marriage is not covered as a relative. Anderson v. St. Paul Fire and Marine Ins. Co., 570 F.Supp. 1222, (D.R.I.1983); Sypien v. State Farm Mutual Automobile Ins. Co., 111 Ill.App.3d 19, 66 Ill.Dec. 780, 443 N.E.2d 706 (1982); Liprie v. Michigan Mutual Ins. Co., 143 So.2d 597 (La.App.1962); Mickelson v. American Family Mutual Ins. Co., 329 N.W.2d 814 (Minn.1983).

Therefore the summary judgment under review be and the same is hereby reversed with directions to enter summary judgment in favor of Allstate Insurance Company.

Reversed and remanded with directions.

      . Allstate Policy
      "Part IV
      Uninsured Motorist Insurance Coverage SS
      ******
      Persons Insured
      You and any relative who resides in your household.”

      . “Section 627.732(4) Fla.Stat. (1981) Definitions”
      ******
      “(4) 'Relative residing in the same household’ means a relative of any degree by blood or by marriage who usually makes his home in the same family unit, whether or not temporarily living elsewhere.”


text:
    Berta CRUZ, as Personal Representative of the estate of Noralva Delgado, deceased, on behalf of the estate of Noralva Delgado, deceased, and on behalf of Merida Cruz and Guadalupe Delgado, natural parents and lawful survivors of the estate of Noralva Delgado, deceased, Appellants, v. METROPOLITAN DADE COUNTY, Theron McClain, Levin Long, Frank Calaveri, Gordon Gouwens, and James Sharpe, Appellees.
    Nos. 83-2215, 83-2875.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Horton, Perse & Ginsberg and Edward Perse, William Sullivan, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Addison J. Meyers and Ronald Bernstein, Asst. County Attys., for appellees.
    . Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Department of Transportation v. Neilson, 419 So.2d 1071 (Fla.1982); Hyde v. Florida Department of Transportation, 452 So.2d 1109 (Fla. 2d DCA 1984); Payne v. Palm Beach County, 395 So.2d 1267 (Fla. 4th DCA 1981). Chapter 90.407, Florida Statutes (1983).


text:
    UFFNER TEXTILE CORPORATION, Appellant, v. EASTERN COMPUTERS, INC., Appellee.
    No. 83-2709.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Ann Mason Parker, Miami, for appellant.
    Stephen L. Raskin, Miami, for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Red Top Cab & Baggage Co. v. Dorner, 159 Fla. 366, 31 So.2d 409, 410 (1947); Driscoll v. Morris, 114 So.2d 314 (Fla. 3d DCA 1959).


text:
    John SOLIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 84-16.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellee.
    Jim Smith, Atty. Gen. and Henry R. Barksdale, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).


text:
    C.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 84-625.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Bennett H. Brummer, Public Defender and Marti Rothenberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

The adjudication of delinquency under review is reversed and the cause is remanded to the trial court with directions to order a new trial based on the authority of A.E.K. v. State, 432 So.2d 720 (Fla. 3d DCA 1983). The proceedings below were the functional equivalent of a nolo contendere plea which was accepted by the trial court without conducting a voluntariness inquiry of the juvenile herein as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Reversed and remanded for a new trial.


text:
    Bernabe SOMOZA, Alvaro Somoza, Isabel Urcuyo De Somoza, Appellants, v. Marcial SOLIS, Appellee.
    No. 84-2041.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Holland & Knight and Thomas G. Schultz and Marilyn Holifield and Bradshaw Lotsp-eich, Miami, for appellants.
    Hall & O’Brien and Isaac Fisher, Miami, for appellee.

      Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. See Elmex Corp. v. Atlantic Federal Savings & Loan Association, 325 So.2d 58 (Fla. 4th DCA 1976); Lustig v. Feinberg, 257 So.2d 299 (Fla. 1st DCA 1972); Horace v. American National Bank & Trust Co., 251 So.2d 33 (Fla. 4th DCA 1971); duPont v. Rubin, 237 So.2d 795 (Fla. 3d DCA 1970). See Leviten v. Gaunt, 360 So.2d 112 (Fla. 3d DCA 1978); Fiedelbaum v. Lapidus, 163 So.2d 334 (Fla. 3d DCA 1964).


text:
    Steven Warren SELL and Universal Auto Salvage, Inc., Appellants, v. Hector A. TORRES and Juana Torres, Appellees.
    No. 84-1110.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Hoppe & Backmeyer and Thomas Back-meyer, Miami, for appellants.
    Steven R. Berger and Amy N. Dean, Miami, for appellees.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Licenberg v. Issem, 318 So.2d 386 (Fla.1975); International Sales-Rental Leasing Co. v. Nearhoof, 263 So.2d 569 (Fla.1972); Heps v. Burdine’s, Inc., 69 So.2d 340 (Fla.1954); Sussman v. Tutelman, 445 So.2d 1081 (Fla. 3d DCA 1984); Fenner v. McLowhorn, 424 So.2d 50 (Fla. 2d DCA 1982); Schreier v. Parker, 415 So.2d 794 (Fla. 3d DCA 1982); Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978); Seaboard Coast Line Railroad Company v. Gordon, 328 So.2d 206 (Fla. 3d DCA 1976); Section 768.31(5) Florida Statutes (1981).


text:
    Joseph COVELLO, Appellant, v. STATE of Florida, Appellee.
    No. 83-2325.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.

      Peter D. Aiken and Michael D. Gelety, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant in this case has pleaded no contest to bookmaking and conspiracy, has been sentenced, and appeals the denial of his motion to suppress the fruits of a wiretap search made pursuant to a judicial wiretap order. There is no issue that appellant properly reserved the right to appeal when he entefed his no contest pleas.

The phone line which was tapped was the apparent residence of a person other than appellant, and there is no indication in the record that appellant had any possessory or proprietary interest in that residence. Appellant attacks the wiretap order as being improperly issued and argues that the evidence acquired as a result thereof should have been suppressed.

Appellant’s first argument urges error because appellant’s name was not mentioned in the affidavit which supported issuance of the wiretap order. A fair reading of the record discloses no evidence which would establish probable cause to believe appellant was involved in the bookmaking operation which was under investigation. In fact, the only conclusion which can be drawn from the evidence in the record is that the police officers had only a “gut feeling” that appellant might be involved in the bookmaking operation and that there was no reasonable expectation that appellant’s conversation would be intercepted by the wiretap. We conclude that there is no legal requirement under the facts of this case that appellant be named in the affidavit in order for the fruits of wiretap search to be admissible against him.

Appellant further contends that the state did not exhaust traditional investigative techniques or at least did not show that normal investigative techniques had failed or were unlikely to succeed, as is required by Section 934.09(l)(c), Florida Statutes. This argument is without merit because Section 934.09(l)(c) is satisfied if wiretapping appears to be the most reasonable investigative technique under the circumstances to secure other and conclusive evidence of criminal involvement, and it is not necessary that the state show that all possible techniques or alternatives have been exhausted. The record shows that the informant who gave the initial information which caused the investigation to commence refused to testify before the grand jury, that he did not want his identity disclosed, and that surveillance of the suspect residence had been unfruitful. It further appears from the record that execution of a physical search warrant or interviewing neighbors probably would have been unfruitful and would only have alerted those involved in the bookmaking operation to the existence of the investigation. Thus wiretapping appears from this record to be the most reasonable investigative technique under the circumstances. See Smith v. State, 438 So.2d 10 (Fla. 2d DCA 1983); State v. Weedon, 425 So.2d 125 (Fla. 4th DCA 1982).

Finding no merit in either of appellant’s contentions and no error in the trial court’s denial of the motion to suppress, the order and subsequent judgment and sentence appealed are AFFIRMED.

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


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    CAPRICORN MARBLE COMPANY, Appellant, v. GEORGE HYMAN CONSTRUCTION CO., Appellee.
    No. 84-142.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    Esther A. Zaretsky, West Palm Beach, for appellant.
    Michele R. Benvenisty of Rosenberg, Reisman & Glass, Miami, for appellee.
   PER CURIAM.

We do not have jurisdiction over this appeal of a non-final order as it is not authorized under Florida Rule of Appellate Procedure 9.130, or otherwise.

Further, it does not qualify for cer-tiorari treatment as it does not appear that there has been a departure from the essential requirements of law or that appellant will not have a full and adequate remedy by plenary appeal.

While perhaps tempted to address the merits, we cannot do so because it is a fundamental principle of law that if a court is without jurisdiction, it has no power to adjudicate or determine any issue or cause submitted to it. See 13 Fla.Jur.2d, Courts and Judges, §§ 22-31.

Appeal dismissed.

LETTS and WALDEN, JJ., concur.

GLICKSTEIN, J., concurs specially with opinion.

GLICKSTEIN, Judge,

concurring specialty-

This was an attempted appeal from a non-final order denying a motion to enforce a claim of attorney’s lien. I agree with the majority opinion that we have no jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3), (4), and (5), which sets out the types of non-final orders that are ap-pealable. Because we are directed to consider improvidently brought appeals as petitions for writ of certiorari, I deem it appropriate to explain why the trial court did not depart from the essential requirements of the law.

The facts show that Capricorn Marble Company (Capricorn) was involved in two lawsuits; one as plaintiff in which it sued George Hyman Construction Company (Hy-man), and one as defendant in which it was sued by Stewart Leasing Company (Stewart). Capricorn received a partial summary judgment for $1,970.80 from Hyman. In the other case, a default was entered against Capricorn in favor of Stewart, so Stewart served a writ of garnishment on Hyman seeking the judgment owed to Capricorn. Hyman filed a response admitting the debt, then Capricorn’s attorney moved to have the default set aside and the writ quashed. The court set aside the default and quashed the writ of garnishment, but required Hyman to deposit the money due on the summary judgment in the court registry to secure Stewart’s claim. The default was once again entered against Capricorn in the Stewart action.

Subsequently, Capricorn’s attorney moved for and received permission to withdraw from the case. The attorney then filed a notice of attorney’s lien and sought to enforce it against the funds Hyman had deposited in the court registry, the funds having been the subject of Stewart’s earlier writ of garnishment. The motion to enforce was filed in the county court case of Stewart Leasing Company v. Capricorn Marble Company. The motion being denied, the attorney then filed a motion to enforce her lien in the Capricorn Marble Company v. George Hyman Construction Company action, which was before the circuit court. The circuit court denied this motion, ruling that the county court had already decided this issue, so that it was barred by res judicata. This appeal is taken from the circuit court’s order.

The issue is whether the circuit court departed from the essential requirements of the law in denying the motion to enforce the attorney’s lien. We conclude that it did not and deny the petition. The reason for writing further is that the circuit court’s order relied upon res judicata.

Res judicata requires identity of the res sued for, the cause of action, parties to the actions, and parties’ quality or capacity. Seaboard Coast Line Railroad v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972). In the current case, the money deposited by Hyman into the court registry is the thing being sought in both actions, and the parties are in the same capacity in both suits, so those requirements were met. Despite appellant’s contention, the parties are the same: Stewart, which claims the money; Capricorn, to whom the money is owed; Hyman, which owes the money; and Capricorn’s attorney, who tried to impose a lien in both suits. The sticking point, however, is the cause of action, and this depends upon whether the cause of action is viewed as that upon which the initial suits are brought or the separate claim of attorney’s fee and motion to enforce it. If the attorney’s fee claim were viewed as the cause of action, it would be barred by res judicata. Because the fee was sought in the context of the larger suit, however, and not as an independent action, the causes of action to be considered must be the Capricorn/Hyman and Stewart/Capricorn actions. It is clear that because these two suits arose from different causes of action, this identity is not met; so res judicata was not the proper doctrine upon which to base dismissal of the second attempt to enforce an attorney’s lien.

The correct predicate which supports the trial judge’s order of dismissal is the principle of collateral estoppel, or estoppel by judgment, or conclusiveness of the judgment. Whatever it is called by a court, this principle says that

Any right, fact or matter in issue and directly adjudicated, or necessarily involved in the determination of an action before a competent court in which a judgment or decree has been rendered upon the merits, is conclusively settled by the judgment therein and cannot again be litigated between the same parties and their privies, whether the claim, demand, purpose or subject-matter of the two suits is the same or not.

In re Constructors of Florida, Inc., 349 F.2d 595, 599 (5th Cir.1965). See also Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952); Clean Water, Inc. v. State, Department of Environmental Regulation, 402 So.2d 456 (Fla. 1st DCA 1981); Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla. 3d DCA), cert. denied, 379 So.2d 203 (Fla.1979); Baum v. Pines Realty, Inc., 164 So.2d 517 (Fla. 2d DCA 1964).

The claim involved in the current appeal was duly considered by a court of competent jurisdiction, which decided the issue of whether the attorney or Stewart was entitled to the money deposited by Hyman as a result of its debt to Capricorn. This precise question having been settled in the previous suit between the same parties, the decision is conclusive, and relief should be sought through appeal of the former decision.

The fact that the trial judge said “res judicata” instead of “collateral estoppel” is not harmful, for if there is any theory upon which the disputed action could properly have been taken, then an appellate court correctly affirms, even if the reason stated is wrong. Stuart v. State, 360 So.2d 406 (Fla.1978). In this case, the order was correct because the issue had been settled in a previous suit.

As I said at the outset of this opinion, I agree that we have no jurisdiction to act so as to bind any party. I respectfully suggest, however, that there is a difference between an opinion that accepts jurisdiction by so acting and an opinion that declines to exercise jurisdiction and explains why to the parties. For an example of another opinion that accomplishes this result, see Hawaiian Inn of Daytona Beach, Inc. v. Snead Construction Corporation, 393 So.2d 1201 (Fla. 5th DCA 1981).


author: DELL, Judge.

text:
    In the Interest of L.M.H., a minor child.
    No. 84-459.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1985.
    Lawrence F. Kranert, Jr., Fort Lauder-dale, for appellant, Florida Department of Health and Rehabilitative Services.
    Jim Smith, Atty. Gen., and Walter Megin-nis, Asst. Atty. Gen., Tallahassee, for ap-pellee, State of Florida.
   DELL, Judge.

The Florida Department of Health and Rehabilitative Services (HRS) appeals an order which adjudicated L.M.H. to have committed a delinquent act and committed her to HRS for an indeterminate period of time.

The juvenile court had initially adjudicated L.M.H. a dependent child and placed her under the supervision of HRS. L.M.H. refused to abide by the conditions of the dependency order. As a result HRS filed petitions for a rule to show cause why L.M.H. should not be held in contempt. After a hearing the court entered an order committing L.M.H. to the custody of HRS. HRS moved for relief from the order of commitment and the court entered amended orders holding her in contempt and committing her to the custody of HRS. The judgment of contempt stated that L.M.H. “failed to remain in the HRS designated shelter, failed to attend counseling and did run away. All acts being in violation of ... [this court’s] order.” The commitment order adjudicated L.M.H. as having committed a delinquent act in violation of section 39.01(8), Florida Statutes (1983), and committed her to HRS for an indeterminate period of time.

Appellee, the Department of Legal Affairs, contends that the court can use its inherent contempt power to punish L.M.H. Appellant, however, does not challenge the court’s inherent contempt power; rather, appellant contends that the court cannot adjudicate a child delinquent unless a petition for delinquency has been filed. The record discloses no such petition, but the juvenile court’s commitment order states on its face that L.M.H. “was adjudicated to have committed a delinquent act for violation of Florida Statute(s) 39.01 Sub. Sect. 8 which constitute(s) the offense(s) of contempt of court....”

Section 39.05(1), Florida Statutes (1983) provides:

All proceedings seeking a finding that a child has committed a delinquent act shall be initiated by the state by the filing of a petition for delinquency by the state attorney.

[Emphasis added.]

In a similar situation, our sister court held an adjudication of delinquency void. J.M.J. v. State, 389 So.2d 1208 (Fla. 1st DCA 1980). There the court stated:

The only pleading filed by a proper authority was a “Petition for Rule to Show Cause.” This petition fails to mention delinquency, the necessary facts indicating juvenile court jurisdiction, and the residence and names of J.M.J.’s parents. § 39.05(5); Fla.R.Juv.P. 8.110(a)(1) and (2). The petition apparently conforms to Rule 8.280 outlining the initial procedure for prosecuting indirect contempts and was not intended to conform with the requirements of a proper delinquency petition. Thus, the adjudication of delinquency is void because there is no petition of delinquency to support it. § 39.-05(1), supra.

Id. at 1209 (footnotes omitted).

Appellee’s reliance on A.O. v. State, 433 So.2d 22 (Fla. 3d DCA 1983) is misplaced. In A.O. v. State, a dependent child was adjudicated delinquent for violating the terms of a dependency order. However, the State had petitioned for a determination of delinquency and the court adjudicated the minor delinquent on the basis of that petition.

Appellee also relies on R.M.P. v. Jones, 419 So.2d 618 (Fla.1982). R.M.P. authorizes the juvenile court to proceed solely under its inherent contempt power and to sentence a minor as punishment for the contempt. However, R.M.P. does not authorize the juvenile court to adjudicate a minor to have committed a delinquent act where no petition for delinquency has been filed.

We hold that the trial court erred when it adjudicated L.M.H. as a delinquent under chapter 39 without a petition for delinquency to support that result. We reverse the order of commitment and remand this ease to the trial court with leave to impose a sentence under its judgment of contempt.

REVERSED and REMANDED.

HERSEY and WALDEN, JJ., concur.