author: COBB, Judge.

text:
    Gabriel CAZARES, Appellant/Cross-Appellee, v. The CHURCH OF SCIENTOLOGY OF CALIFORNIA, INC., a California corporation; Clyde H. Wilson, Jr., Wilson, Wilson & Namack Chartered, et al., Appellees/Cross-Appellants.
    No. 82-1386.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    Rehearing Denied Jan. 27, 1984.

      See also 429 So.2d 348.
    C. Allen Watts, DeLand, Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, and Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, Walt Logan, St. Pe-tersburg, for appellant/cross-appellee.
    J. Michael Hayes of Johnson, Paniello & Hayes, Tampa, for appellees/cross-appel-lants.
    Tobias Tolzmann, appellee, pro se.
   COBB, Judge.

This appeal concerns the trial court’s dismissal of a complaint attempting to allege the torts of malicious prosecution in Count I and abuse of process in Count II. For the reasons explicated below, we affirm the dismissal of Count II but reverse the dismissal of Count I.

The appellant, Gabriel Cazares, originally filed the complaint on March 26, 1980, in Pinellas County. The cause was transferred to Volusia County, and Cazares filed an amended complaint on September 11, 1981, wherein he alleged that the defendant, the Church of' Scientology of California, Inc., had maliciously sued him in federal court in 1976 for violation of its civil rights and for defamation. That action terminated at the trial level in favor of Cazares and, ultimately, that result was affirmed on appeal. See Church of Scientology of California v. Cazares, 638 F.2d 1272 (5th Cir.1981).

In November, 1981, the Church moved to dismiss both counts of Cazares’ amended complaint. In moving to dismiss the second count, abuse of process, the Church asserted that no act, other than the wrongful filing of the underlying lawsuit, was alleged. Without belaboring the point, we affirm the trial court’s dismissal with prejudice of Count II on the rationale of Blue v. Weinstein, 381 So.2d 308 (Fla. 3d DCA 1980), and McMurray v. U-Haul Co., Inc., 425 So.2d 1208 (Fla. 4th DCA 1983). As pointed out in those cases, abuse of process requires an act constituting the misuse of process after it issues. The maliciousness or lack of foundation of the asserted cause of action itself is actually irrelevant to the tort of abuse of process. See Nash v. Walker, 78 So.2d 685 (Fla.1955).

The Church alleged that Count I should be dismissed on the bases that (1) there was no bona fide termination of the original federal action at the time Cazares filed suit, and (2) the ultimate facts alleged did not show that the underlying lawsuit (the federal court action) was initiated without probable cause. In dismissing the plaintiff’s count for malicious prosecution, the trial court stated in its order:

... The Court has read and considered the case of The Church of Scientology vs. Gabriel Cazares, decided by the Fifth Circuit Court of Appeals in its opinion found at 638 F.2d 1272 (1981), which is specifically cited as part of the Plaintiffs’ Amended Complaint and which sets forth in some detail the factual basis for the allegations filed by the Defendant, THE CHURCH OF SCIENTOLOGY, against GABRIEL CAZARES in a Title 42, Section 1983, Federal Civil Rights and Defamation Action. The Court carefully considered this opinion, and it is apparent on the face thereof that there was probable cause to bring the stated cause of action under the facts set forth therein and the laws of the State of Florida as set forth in the case of Heard vs. Mathis, 344 So.2d 641 [651], a decision of the First District Court of Appeals decided in 1977, and other Florida precedents.
In ruling that there was probable cause to bring the stated action, the Court notes that it is the Court’s responsibility to determine whether or not there was probable cause, and it is only other factual matters which are necessary to be considered by the jury. See the case of Fee, Parker, and Lloyd, P.A. vs. Sullivan, 379 So.2d 412, a decision of the Fourth District Court of Appeals of Florida decided in 1980.
It is upon consideration thereof, ORDERED AND ADJUDGED by this Court that Count I, as to the Defendant, CHURCH OF SCIENTOLOGY, and as to the Defendants, CLYDE H. WILSON, JR., and WILSON, WILSON and NA-MACK CHARTERED, be and the same is hereby dismissed with prejudice. In so doing, this Court would further note that there have been other persuasive arguments made by both Defendants for the dismissal of Count I on two grounds: (1) That the Complaint in the present suit was prematurely filed; and (2) That the federal suit was a privileged petition for a redress of grievances under the First Amendment to the Constitution of the United States of America. However, this Court feels that there is no necessity at this time to reach these issues by reason of the dismissal with prejudice of Count I as herein entered.

The elements of the cause of action of malicious prosecution are as follows:

(1) The commencement or continuance of an original criminal or civil judicial proceeding;
(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding;
(3) Its bona fide termination in favor of the present plaintiff;
(4) The absence of probable cause for such proceeding;
(5) The presence of malice therein;
(6) Damage conforming to legal standards resulting to plaintiff.

Tatum Bros. Real Estate & Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926); Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980).

In the instant case, the point on appeal concerns element number 4, that of the absence of probable cause. Here, the judge, on a motion to dismiss, determined that probable cause did exist to bring the underlying suit, thus requiring that the complaint be dismissed, since an element of the cause of action was missing. The Church contends correctly that the question of probable cause may be one of law for the court. See City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979) (where facts are undisputed, courts should determine probable cause); Fee, Parker & Lloyd v. Sullivan, 379 So.2d 412 (Fla. 4th DCA), cert. denied, 388 So.2d 1119 (Fla.1980) (existence or lack of probable cause is a pure question of law for the court to determine, with the resolution of disputed issues of fact a question to be submitted to the jury). In the instant case, however, the court determined the question too soon. The cases relied on by the appellee deal with situations where the trial court ruled on the issue of probable cause when presented with either motions for summary judgment or directed verdict, not on a motion to dismiss as in the instant case.

The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. For the purpose of passing upon a motion to dismiss, the court must assume all the facts alleged in the complaint to be true. A motion to dismiss must be decided on questions of law only. The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good cause of action, and the court, when faced with a motion to dismiss a complaint for failure to state a cause of action, must confine itself strictly to the allegations within the four corners of the complaint. Rest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968). See also Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla.1971); City of St. Augustine v. Authentic Old Jail, Inc., 388 So.2d 1044 (Fla. 5th DCA 1980). In the instant case, the complaint contained allegations relating to the lack of probable cause (paragraphs 13, 15), but the trial court determined from looking at the underlying action that indeed probable cause did exist and dismissed the count.

Rest v. Nathanson, 216 So.2d 233 (Fla. 4th DCA 1968), is almost identical to the instant case. In Rest, the plaintiff appealed from a final order dismissing with prejudice his complaint in a malicious prosecution action. The trial court’s order dismissing the complaint stated that the court had taken judicial notice of the underlying suit, and that an examination of this suit showed that a motion for summary judgment was denied, which to the trial judge indicated that probable cause for the suit was present, leading to a dismissal of the malicious prosecution claim.

The Fourth District reversed, and after setting out the basic test on a motion to dismiss and the elements required for malicious prosecution, stated:

While it may be possible to show in later stages of this case that the element of probable cause did exist for instituting the first action, the posture of this action before the trial judge was on motion to dismiss the complaint. It was improper for the trial court to go beyond the four corners of the complaint when considering a motion to dismiss it and invoke presumptions of fact based upon denial of motions that were filed in a prior case. Such is not the province of the trial court in the process of determining if a complaint can withstand a motion to dismiss and would afford no procedural safeguard to the litigants involved.
Under these circumstances, we think that it cannot be said as a matter of law that the allegations of the complaint failed to state a cause of action, or that the complaint on its face shows that probable cause existed for instituting the first action. We conclude, therefore, that the trial court was in error in dismissing the complaint.

216 So.2d at 236. The actions of the trial court in Rest were the same as those in the instant case, and a similar result is warranted.

We should also address the other major argument presented before the trial court on the motion to dismiss, that of the complaint being prematurely filed. At argument below, the Church contended that the cause of action for malicious prosecution did not exist at the time that the suit was filed, since the element of a termination in favor of the present plaintiff was missing, because the appeal before the Fifth Circuit was still pending. Cazares responded that the termination occurred at the time the district court acted and, therefore, the complaint was proper.

The courts are divided on the effect of an appeal from a judgment in the original action on the right to maintain an action for malicious prosecution. Daniel v. Pappas, 16 F.2d 880 (8th Cir.1926). One line of authority is of the view that the right to commence the action for malicious prosecution accrues on the rendition of the judgment in the original proceeding, and that the right to maintain the proceeding is not affected by an appeal. These authorities hold, however, that the pendency of an appeal may be grounds for staying the malicious prosecution action until the appeal has been determined. See Levering v. National Bank of Morrow County, 87 Ohio St. 117, 100 N.E. 322 (1912). The greater weight of authority holds that the pendency of an appeal from the judgment rendered in the proceeding complained of precludes maintenance of a suit for malicious prosecution. See Breen v. Shatz, 267 S.W.2d 942 (Ky.Ct.App.1954); Restatement (Second) of Torts § 674, Comment j (1977); Annot. 41 A.L.R.2d 863; 54 C.J.S. Malicious Prosecution § 56 (1955).

While no Florida state court cases could be found dealing with the effect of an appeal on a malicious prosecution action, the United States District Court for the Middle District of Florida addressed the issue in Roess v. St. Paul Fire & Marine Ins. Co., 383 F.Supp. 1231 (M.D.Fla.1974).

In Roess, a dispute arose between an insurance company and an insured over coverage on a malicious prosecution claim. The question before the court was whether the underlying suit brought by a man named Koubek against Roess accrued before or after the policy’s effective date. The suit was determined by the trial court prior to the issuance of the policy, but a final appellate decision (by the Florida Supreme Court) was not issüed until after the policy’s effective date. The court concluded that the date of favorable termination of the underlying action was the operative date for the policy’s effectiveness, since favorable termination was seen as an indispensable ingredient in the claim for malicious prosecution. The court still had to decide whether the favorable termination was when the trial court decided the case, or when the Supreme Court did, to determine whether coverage was present, and the court opted for the date of the Supreme Court decision, stating:

Authority is cited for the proposition that the right to maintain an action for malicious prosecution accrues upon the rendition of judgment in the trial court whether an appeal is taken or not. It appears, however, that the weight of authority is to the contrary (Annot. 41 A.L.R.2d 863 (1953)); and there is no reason to believe that the Florida courts would adopt a minority view. In summary, then, the court is compelled to the result as a matter of law that the Koubek claim against Roess for malicious prosecution did not mature until the taxpayer’s action was finally terminated in the Supreme Court of Florida....

383 F.Supp. at 1235.

Florida courts clearly hold that an action for malicious prosecution cannot be filed until the original action is concluded, thus precluding any counterclaims from being filed in the underlying action itself. See Waite v. Ward, 413 So.2d 830 (Fla. 1st DCA 1982); American Salvage & Jobbing Co. v. Salomon, 295 So.2d 710 (Fla. 3d DCA 1974). It seems that the weight of authority is that the appeal of a judgment will extend the time for a malicious prosecution action until after final appellate decision. This is the better rule, since to allow otherwise would lead to possible useless malicious prosecution actions when the plaintiff in the malicious prosecution action fails to win the underlying case on appeal. Cazares’ argument that this results in a stopping and starting of the statute of limitations is without merit. The statute of limitations for a malicious prosecution action would not start until the appeal was decided, or the time for taking such an appeal had expired, because the cause of action would not accrue until the last element (termination favorable to the plaintiff) occurred. See § 95.031(1), Fla.Stat. (1981).

Therefore, even though the trial court cited the wrong reasons for the dismissal, it can be persuasively contended that the result was correct, since the initial complaint here was filed on March 26, 1980, and the appeal of the underlying action was not decided until March 9, 1981. Ca-zares claims, however, that even if the complaint is deemed premature by this court, his amending of the complaint on September 11, 1981, cured the defect, since it was done after the Fifth Circuit opinion was issued. Cazares relies on Florida Rule of Civil Procedure 1.190(d) and (e) in support of his contention, as well as Federal Rule of Civil Procedure 15(d).

Initially, it should be pointed out that Florida Rule of Civil Procedure 1.190(d), while modeled after the federal rule, is different, in that a key sentence found in Federal Rule of Civil Procedure 15(d) does not appear in the Florida provision. The federal rule provides as follows:

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleadings sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor. (Emphasis added.)

The language underlined was added to the federal rule in 1963. Prior to 1963, some cases held that where the original complaint fails to state a claim upon which relief could be granted, leave to serve a supplemental complaint must be denied because there is no proper claim before the court to supplement. See 3 Moore’s Federal Practice § 15.16[2]. The Florida rules were adopted in 1966, after the. new language was placed in the federal rule, but without the federal language underlined above.

In Hasam Realty Corp. v. Dade County, 178 So.2d 747 (Fla. 3d DCA 1965), cert. dismissed, 192 So.2d 499 (Fla.1966), the plaintiff appealed an order dismissing his complaint against the county for denying his zoning variance as premature. The Third District affirmed, noting that when the suit was filed, the underlying claim was not final, since appeal to the Board of County Commissioners had not yet been decided. The court stated:

If a plaintiff has no valid cause of action on the facts existing at the time of filing suit, the defect cannot ordinarily be remedied by the accrual of one while the suit is pending.

178 So.2d at 748.

Similarly, in Orlando Sports Stadium v. Sentinel Star Co., 316 So.2d 607 (Fla. 4th DCA 1975), dismissal of a complaint for libel was affirmed, since it was deemed premature. In Orlando, the plaintiffs, after filing their initial complaint against the Sentinel, sent a letter to the paper in an attempt to comply with the notice and demand for retraction requirement for defamation actions. After the letter was sent, the plaintiffs filed an amended complaint, alleging for the first time their compliance with the statute. The Fourth District affirmed the dismissal, noting:

A cause of action must exist and be complete before an action can be commenced or, as sometimes stated, the existence or non-existence of a cause of action is commonly dependent upon the state of facts existing when the action was begun. As a general rule the plaintiff may not be permitted to cure the defect of non-existence of a cause of action when suit was begun, by amendment of his pleadings to cover subsequently accruing rights.

316 So.2d at 610. The court cited Hasam, and added that the same result is compelled under Rule 1.190 as was under the prior rules.

Cazares cites two cases as contrary authority to Orlando and Hasam: American National Growers Corp.. v. Harris, 120 So.2d 212 (Fla. 2d DCA 1960), and Scherer v. Scherer, 150 So.2d 496 (Fla. 3d DCA 1963). In American National, a foreclosure action, the plaintiff was denied leave to file a supplemental complaint to cure the defect of non-payment of intangible tax on the mortgage notes. The plaintiff filed leave to amend, since it had claimed it had not paid intangible tax due on the notes before the suit was filed and that it had now done so and wished to allege it. The Florida statutes prohibited enforcement of a mortgage by a court action unless the tax had been paid. The appellate court noted that to file a supplemental complaint cannot prejudice the defendant since payment of tax is a mere condition to enforcement of the obligation on which the tax is owed, and delinquency does not work a forfeiture. The court ruled that the plaintiff be given the opportunity to amend and reversed.

In Scherer, the plaintiffs wife appealed an order granting appellee husband’s motion to amend his counterclaim to allege an act of adultery committed after the original suit and counterclaim were filed. The plaintiff contended that it was error to allow the amendment of the counterclaim by an act committed some four months after the filing of the original counterclaim, but the Third District affirmed. The court, in looking at the rules for pleadings and the liberal view of amendment, saw the amended counterclaim as a supplemental pleading since it concerned subject matter occurring after the filing of the original counterclaim. The court saw the amended pleading as seeking the same relief, but on a different ground, not as a new and materially different suit. The court noted that the trial court could have dismissed the suit and required the parties to replead, but that it would have been time consuming and wasteful.

A similar result was reached in O’Connell v. Citizens National Bank of Hollywood, 254 So.2d 236 (Fla. 4th DCA 1971), where the court denied a motion to dismiss a complaint based on the ground that the promissory note that was the subject of the suit was unenforceable, since it was incomplete on the original complaint. The plaintiff filed an amended complaint, alleging its authority to complete the instrument and attached a completed note to the complaint. The appellants contended the trial judge erred in denying the motion, since no valid cause of action existed at the time of the filing of the suit, and thus it could not be remedied, citing Hasam. The Fourth District affirmed, stating:

It seems clear to us that appellants are in no different position than they would have been had appellee voluntarily dismissed the original action, completed the instrument in accordance with its alleged authority, and thereafter filed a new and separate action on the completed note. Thus, without deciding whether the court erred in allowing the amended complaint to stand, it seems clear that appellants sustained no harm or prejudice, nor has such action resulted in a miscarriage of justice, and hence the judgments from which the appeal is taken should be affirmed.

254 So.2d at 237.

We agree with the result reached by O’Connell. No harm results in allowing the amended complaint to stand, since now it does allege all the proper elements and it was filed after final appellate determination. This is not a case where the complaint as it stands is defective, and while the dismissal can be technically justified, it would serve no practical purpose under the circumstances.

In summary, the trial court erred by going beyond the complaint to determine that probable cause existed for the malicious prosecution action and in dismissing the complaint on that ground. While the initial complaint was premature, the amending of the complaint following the appellate court action cured the defect, thus precluding the need for dismissal and a refiling of the same amended complaint. Therefore, Count I of the complaint should be reinstated.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      . City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979) (directed verdict); Gallucci v. Milavic, 100 So.2d 375 (Fla.1958) (directed verdict); Johnson v. City of Pompano Beach, 406 So.2d 1257 (Fla. 4th DCA 1981) (summary judgment); Fee, Parker & Lloyd v. Sullivan, 379 So.2d 412 (Fla. 4th DCA 1980) (appeal after final judgment and jury verdict); Priest v. Groover, 289 So.2d 767 (Fla. 2d DCA 1974) (directed verdict); Liabos v. Harman, 215 So.2d 487 (Fla. 2d DCA 1968) (summary judgment).

      . Although the summary judgment was denied in the underlying action, the plaintiff in the malicious prosecution suit was eventually victorious in the underlying suit.

      . Florida Rule of Civil Procedure 1.190(d) states:
      Upon motion of a party the court may permit him, upon reasonable notice and upon such terms as are just, to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.
      Florida Rule of Civil Procedure 1.190(e) states:
      At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.


source: Caselaw Access Project

author: WALDEN, Judge. LETTS, Judge, HERSEY, Judge,

license: Public Domain

text:
    Anne Marie MacMURDO a/k/a Anne Marie Stafford, Appellant, v. The UPJOHN COMPANY, et al., Appellees.
    No. 82-1334.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 1983.
    Rehearing Denied Feb. 16, 1984.

      Bryan S. Henry of Atkinson, Golden, Diner & Henry, P.A., Hollywood, for appellant.
    G. William Bissett of Preddy, Kutner & Hardy, P.A., Miami, for appellees.
   WALDEN, Judge.

This is a suit for personal injuries suffered by Anne Marie MacMurdo as a consequence of an injection of a drug, Depo-Provera, as a contraceptive. MacMurdo sued the drug supplier and manufacturer, The Upjohn Company. The trial court entered summary judgment in favor of Upjohn. MacMurdo appeals.

The standards to be applied in the summary judgment procedure under Florida Rule of Civil Procedure 1.510 are so well known as to not require repeating.

We find that there were existent genuine issues of material fact which stood in the way of a summary judgment disposition.

For example, there was and is an issue as to the adequacy and sufficiency of the warning given by Upjohn to the medical community, Upjohn knowing of the dangerous side effects of the drug when used as a contraceptive. Here Upjohn supplied the following warning:

The use of Depo-Provera (medroxpro-gesterone acetate) for contraception is investigational since there are unresolved questions relating to its safety for this indication. Therefore, this is not an approved indication for this use.

At the hearing on motion for summary judgment, the trial judge commented as concerns the single dispositive issue he treated in granting the motion:

We're talking about the question whether Upjohn has done what it need to do, and frankly the reason I love to give a summary judgment is, when you put six people in the box, God knows what they’re going to come out of the room with. But from a legal and equitable standpoint, it appears Upjohn is doing what it should. If you want a philosophical answer, I don’t think Upjohn is doing what it ought to be doing by just giving written notice and indicating in a PDR what it is. I'm not here to change the law, I’m just here to interpret what’s there.
If I were to sit down and write a statute having to do with the adequacy of it, I would probably hold Upjohn to a much stricter situation than the law holds them to at the present time.

Thereafter, the trial court specifically found as a basis for the summary judgment:

That the warnings contained in'the package insert which are contained in the Court file were sufficient and adequate warnings to the medical community lawfully authorized to prescribe, dispense and administer prescription drugs.

Thus, it is clear that the trial court read the warning subjectively and determined as a matter of law that same was sufficient and adequate. This was error under the law of this state. It is not for judges but it is for the jury to determine if a particular warning is adequate under the circumstances.

In Tampa Drug Company v. Wait, 103 So.2d 603 (Fla.1958), the Supreme Court considered, among other things, the adequacy of the warning contained on a label on a product, carbon tetrachloride, and determined that same was a jury question. Extracting from page 609, we see these statements which are applicable to the instant case:

While some might conclude that the notice on the label quoted in the forepart of this opinion would meet the requirements of adequacy, we do not feel that such a conclusion can be reached as a matter of law.

and

Implicit in the duty to warn is the duty to warn with a degree of intensity that would cause' a reasonable man to exercise for his own safety the caution commensurate with the potential danger,

and, with further reference to the adequacy of the warning,

we do not agree that in a case such as this where the jury may draw varied inferences from the evidence properly before it that the trial judge should enter into the jury box and become an arbiter of the facts.

In Lake v. Konstantinu, 189 So.2d 171 (Fla. 2d DCA 1966), the adequacy of the warning furnished by the manufacturer of the drug, Chloromycetin, was at issue. Summary judgment had been entered in favor of the manufacturer, Parke, Davis. The Court reversed and stated at page 174:

Especially important in the ultimate disposal of this suit is the question of the sufficiency of the warnings attempted to be made by Parke, Davis in merchandising the drug and in persuading physicians to use it, which warnings varied from time to time as Parke, Davis became more and more aware of the drug’s extremely dangerous potentiality and the danger inherent in its use. This issue above all others must certainly be submitted to a jury, (emphasis supplied)

Upjohn, in its brief, candidly recognized that the adequacy of a particular warning is generally a question of fact for jury determination and cites Lake v. Konstantinu, supra. However, Upjohn argues that here summary judgment was proper because there was no conflicting testimony on the issue. This, in our judgment, is an unsound position. In Lake v. Konstantinu, supra, where there was no conflicting evidence as to the warnings given, the Court stated, at page 175:

Florida is committed to the “slightest doubt” rule and even though there is no conflict in the evidence, a motion for summary judgment should be denied where inferences are reasonably deducible therefrom casting doubt upon the issue of negligence. Booth v. Mary Carter Paint Co., 2d D.C.A.1966, 182 So.2d 292.

Here, the jury could have considered the dangerous propensities of Depo-Provera and decided that the warning given was insufficient because it was not sufficiently intense or was not sufficiently explicit and detailed or was not sufficiently alarming or was not sufficiently prohibitive or for other reasons. Of course, it could have decided oppositely. But, in all events, the adequacy of the warning is for the jury to decide and may not be disposed of by summary judgment.

We reverse and remand for trial by jury.

LETTS, J., concurs specially with opinion.

HERSEY, J., dissents with opinion.

LETTS, Judge,

concurring specially.

Much as I would like to, I cannot quarrel with Judge Walden’s remarks which fairly reflect the state of the law in Florida.

However, this drug was never intended for use as a contraceptive and was designed to treat abortions and endometrios-is, as its accompanying literature so states. Yet the physicians here involved, prescribed it as a contraceptive notwithstanding the written statement that it was not approved for such a purpose. To me, I would prefer the view of the Federal Court in Tennessee which found label warnings to be adequate as a matter of law. See Dunkin v. Syntex Laboratories, Inc., supra.

One would hope the jury will conclude that the manufacturer’s warnings were adequate, but as the trial judge below suggested, it is not unheard of for the jury to be swayed in its findings by the injuries received rather than the instructions given.

HERSEY, Judge,

dissenting.

With respect, I dissent. Appellant states:

The issues of material fact to be determined by a jury in MACMURDO’s negligence claim are whether the drug, Depo-Provera, was indeed defective and whether said defect caused the injuries claimed by the Appellant; whether UPJOHN gave warnings to the public through the various physicians and health care providers to whom the drug was distributed; whether the warnings, if given by UPJOHN to the physicians and health care providers, were adequate warnings of the nature and dangerous quality of the drug; and whether UPJOHN attempted to remove the drug from the market or recall and reclaim the drug from unwitting purchasers.

Considering the supposed issues of material fact seriatim, there is not a scintilla of evidence that the drug is defective (as opposed to inherently dangerous); there is no duty on the manufacturer to warn the general public (Buckner v. Allergan Pharmaceuticals, Inc., 400 So.2d 820 (Fla. 5th DCA 1981); physicians were warned through the Physicians Desk Reference and by package inserts that “use of Depo-Provera ... for contraception is investigational since there are unresolved questions relating to its safety for this indication. Therefore, this is not an approved indication for this use,” and, finally, it is irrelevant and immaterial whether Upjohn did or did not attempt to remove or reclaim the drug for whatever reason.

The only issue worthy of consideration is that of the sufficiency of the warnings given to health care providers. That the adequacy of a warning required to be given to health care providers rather than to the general public may become a question of law is illustrated by the cases of Dunkin v. Syntex Laboratories, Inc., 448 F.Supp. 121 (W.D.Tenn.1977) and Chambers v. G.D. Searle & Co., 441 F.Supp. 377 (D.Md.1975).

The record here does not support the proposition that reasonable men could disagree as to the adequacy of the warnings, let alone reasonable physicians. For that reason I discern no genuine issues of material fact requiring jury determination and I would therefore affirm.

      . There are other defendants but they are not involved in this summary judgment on appeal.

        . For a contrary view, see Chambers v. G.D. Searle & Co., 441 F.Supp. 377 (D.Md.1975) aff'd, 567 F.2d 269 (4th Cir.1977); Dunkin v. Syntex Laboratories, Inc., 443 F.Supp. 121 (W.D.Tenn. 1977).


author: SHARP, Judge.

text:
    Harold W. CARVER, etc., et al., Appellants, v. ORANGE COUNTY, etc., et al., Appellees.
    Nos. 82-1785 to 82-1791.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1983.
    Rehearing Denied Jan. 27, 1984.

      Steven Burrage, of Robert D. Melton, P.A., Orlando, for appellants.
    W. David Rogers, Jr., of Rogers & Dowl-ing, P.A., Orlando, for appellees.
   SHARP, Judge.

This appeal is from a final judgment entered in favor of appellees, Orange County and Home Insurance Company. We reverse and remand this case for a new trial for the reasons discussed below.

An automobile accident at the intersection of State Roads 436 and 15 in Orange County killed two children and seriously injured three others. At the time of the accident James Ingram was driving the station wagon in which the children were passengers, heading south on 436. He attempted a left-hand turn at the intersection’s traffic signal when a northbound automobile struck the station wagon broadside. Whether Ingram turned with a green arrow on his side of the traffic signal was a major dispute at trial. Because the other driver claimed he had a solid green light, the simultaneous appearance of the green turn arrow would constitute a malfunction of the traffic signal.

Appellants sued Orange County and its liability insurer after suing and settling with the drivers. The first trial ended in a mistrial, and a different judge presided at the second trial. Final judgment was entered for appellees following a jury trial on liability only. Appellants raise ten issues on appeal. We consider that three have merit.

The first issue concerns juror misconduct. Juror Louise Tweedy stated on voir dire that although she knew one of appellants’ important witnesses, Maxie Pontius, she could fairly judge his credibility. After the trial, juror James R. Matvia filed an affidavit in which he stated that during deliberations Tweedy remarked that she knew Pontius and that she would not believe a thing Pontius said. Based on this affidavit, appellants filed an amended motion for new trial and requested a jury interview. The trial court denied both.

Clearly a hearing should have been held to determine the truth of the matters set forth in the affidavit. See, e.g., Minnis v. Jackson, 330 So.2d 847 (Fla. 3d DCA 1976); Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972). Litigants are entitled to impartial jurors, and jurors who misrepresent their beliefs or facts relating to themselves which would probably require they be excused, deprive the litigants of their right to challenge for cause or to make peremptory challenges. As a practical matter, if we remand the case for a hearing at this time, there might be problems locating the jurors. Further, the trial judge is not currently serving in Orange County. However, we find that we do not have to directly face these problems because other errors mandate a new trial.

A second error occurred when the trial court allowed appellees to impeach appellants’ expert witness, Paul Howell, by permitting appellees’ expert witness, Wayne Miller, to give his opinion as to Howell’s ability. It is improper to impeach an expert witness by eliciting from another expert witness what he thinks of that expert. Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977); Ecker v. National Roofing of Miami, Inc., 201 So.2d 586 (Fla. 3d DCA 1967). “Further, proper sense of professional delicacy precludes [experts] from giving evidence as to the merits of each other.” Ecker at 588 (quoting Bremer v. Freeman, 100 Moo.P.C. 306, 367 (1957)). Allowing Miller to give his opinion as to Howell’s ability constitutes clear error, and mandates reversal.

A third series of errors occurred at trial regarding the testimony of lay witnesses. Henry Dickson, the chief signal technician, was allowed to testify whether he thought the traffic signal’s sequence is confusing to motorists. It was not shown that he was qualified to give an opinion on that point. See City Stores Company v. Mazzaferro, 342 So.2d 827 (Fla. 4th DCA 1977); In re Estate of O’Steen, 285 So.2d 443 (Fla. 1st DCA 1973); Mills v. Redwing Carriers, Inc., 127 So.2d 453 (Fla. 2d DCA 1961); §§ 90.701 & 90.702, Fla.Stat. (1981). Josh Holley, a traffic engineer, was permitted to give his opinion on whether Howell’s opinions on record keeping and applicable portions of the Manual on Uniform Traffic Control Devices are within the field of electro-mechanical engineering as opposed to civil engineering. Again, it was not established that Holley was qualified to give an expert opinion on that point. See §§ 90.701 & 90.702, Fla.Stat. (1981).

Finally, George Cole, a traffic engineer, was permitted to give his interpretation of Orange County’s office notes from the traffic engineering department. He went beyond stating what the meaning of the secretary’s notes were when he said in his opinion he (thought the worksheet showed there was a two-phase clip-in (no green arrow) at the intersection the day of the accident. Cole was qualified to give his opinion on what the department’s records stated, but no more. Cole’s opinion a two-phase clip-in was in operation invaded the province of the jury, which should be left to draw its own inferences. See Thomas v. State, 317 So.2d 450 (Fla. 3d DCA 1975); Scott v. Barfield, 202 So.2d 591 (Fla. 4th DCA 1967); Mills.

Because of the cumulative effect of these errors we reverse the judgment and remand for a new trial.

REVERSED AND REMANDED.

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


author: COWART, Judge. SHARP, Judge,

text:
    Cynthia K. PRALLE, Appellant, v. Robert A. PRALLE, Jr., a/k/a Robert A. Pralle, Appellee.
    No. 82-1238.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    Rehearing Denied Feb. 1, 1984.
    Ronald A. Nour, Ormond Beach, for appellant.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellee.
   COWART, Judge.

We affirm the final judgment of the trial court because we find no abuse of the trial court’s discretion. We also do not agree with appellant’s contention that the award of child support is vague and indefinite in amount. The provision of the final judgment with respect to child support reads as follows:

The Respondent, ROBERT A. PRALLE, JR., a/k/a ROBERT A. PRALLE, commencing on the 15th day of July, 1982, and on the 15th day of each calendar ' month thereafter, shall pay to the Petitioner, CYNTHIA K. PRALLE, the sum of $500.00, allocated $250.00 per month per child, as and for his contribution to the support and maintenance of the parties’ said children during such time as they shall be physically with the petitioner. In addition thereto, he shall pay when due such sum or sums as may be reasonably required and necessary for the hospital and medical care of the parties’ said children.

The trial court directed that custody of the children be shared between the parents pursuant to section 61.13, Florida Statutes (Supp.1982). At the final hearing the husband testified that the children had been spending approximately 15 days per month with him and the remaining time with the wife. Prior to the hearing the husband had been making monthly child support payments of $550.00 per month. In this context, we find the final judgment obligates the husband to pay $500 per month in child support. The phrase “during such time as they shall be physically with the petitioner” does not modify or qualify the husband’s obligation to pay $500 per month but merely describes the child support payment and sets forth the factual basis for the support order. Therefore, we find no abuse of discretion in the amount of the child support.

AFFIRMED.

COBB, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I respectfully dissent. In this case there was an unequal division of marital assets accumulated by the work efforts of the spouses, and the record fails to establish any equitable reason for a unequal division. We have upheld such unequal divisions where the court also awarded rehabilitative or permanent alimony. But no periodic alimony was awarded here, even though there was a large gap in the incomes earned by the parties at the time of the dissolution hearing.

In 1975, the Pralles moved to Florida. Since that time Robert has worked for his uncles’ construction company, McCarthy Builders, Inc. Cynthia worked throughout the marriage, and, in fact, was hired by McCarthy Builders in 1977 as a secretary. Although Cynthia presently works for McCarthy Builders, she is working toward fulfilling the prerequisites to enter a nurses training program. Cynthia testified the actual nursing program lasts two years, during which time she will be unable to work. She expects to earn between $12,-000.00 and $15,000.00 annually as a nurse.

Substantially' all of parties’ marital assets were acquired during the marriage. The trial court divided the major assets as follows:

On appeal, Robert asserts that his partnership interests were acquired as a gift from his uncles; however, this assertion is directly contradicted by most of his own testimony. Robert testified he built the marital residence with his uncles for a very low cost; the Tymber Creek rental house was acquired through money saved from bonuses; the interest in the Lakefront property was purchased with money earned from bonuses; and the interest in Volusia Builders Supply Company, Inc. was purchased with approximately $15,000.00 earned from working and bonuses. Although the Tomoka Meadows Association interest was given to him as an incentive to work on it, Robert also testified it was acquired through his own work and know-how. Robert further testified he has not invested any money in the Pier 43 partnership, and the pension and profit sharing plan has been in effect since he turned twenty-five. There was no testimony as to how he acquired an interest in the Sawtooth partnership.

“While the concept of ‘equitable distribution’ has not been held to require an absolutely equal division of the marital assets, this court has indicated that is a good starting point, see Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981).” Ente v. Ente, 442 So.2d 232 (Fla. 5th DCA 1983). In this case, the parties had nothing when they were married at sixteen, but, through the years, have acquired assets totaling at least $260,000.00. In this situation, a division that awards approximately sixty-two percent (62%) of those assets to Robert, and only thirty-eight percent (38%) to Cynthia, seems grossly out of balance.

I would reverse because I think the trial court abused its discretion in either failing to award some periodic alimony to the wife or achieving a more equitable division of the marital assets.

      . The trial court's division of the marital assets left the ex-wife with a little under $100,000.00, and the ex-husband at plus $160,000.00.

      . See Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981).

      . The ex-wife earned $150.00 a week as a secretary. The ex-husband drew a weekly salary of $400.00; his firm contributed to a pension and profit sharing plan in his name; he took a fifteen percent share of any bonus money taken out of the firm by his uncles; he was a partner in several individual construction projects in which McCarthy Builders is involved; and he had a twenty-five percent interest in Volusia Builders Supply, Inc., a closed corporation, set up to sell windows and related supplies to McCarthy Builders and other contractors.


author: DAUKSCH, Judge. SHARP, Judge,

text:
    RUSSELL & AXON, et al., Petitioners, v. B & W LTD., INC., et al., Respondents.
    Nos. 83-476, 83-642.
    District Court of Appeal of Florida, Fifth District.
    Dec. 29, 1983.
    Rehearing Denied Feb. 1, 1984.

      Noah C. McKinnon, Daytona Beach, and Cynthia S. Tunnicliff of Carlton, Fields, Ward, Emmanuel, Smith and Cutler, P.A., Tallahassee, for petitioners.
    J. Lester Kaney of Cobb, Cole, P.A., Day-tona Beach, for respondents.
   DAUKSCH, Judge.

This case is before us to review by certio-rari orders compelling discovery. Because the orders in part require the corporate petitioner, through its officers, directors and attorney, to divulge certain matters within the attorney-client privilege we must grant certiorari. The portion of the corporate meeting where the respondent Burkett was excused was to .enable the corporate directors to seek legal advice from the attorney. We have examined in camera a transcript of that corporate meeting. The contents of that meeting may have been of interest to Burkett, and this lawsuit is evidence of his interest, but it is not his right to know what advice was sought and given at the meeting.

Those portions of the orders which require divulgence of corporate minutes or the giving of testimony regarding the subject portions of the August 10, 1979 meeting are quashed. By “subject portions” we mean that time period when respondent Burkett was excused.

Writ granted.

FRANK D. UPCHURCH, Jr., Judge, concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent from the majority opinion. The mere presence of an attorney at a corporate meeting should not be sufficient to invoke the attorney-client privilege and thereby bar the corporate minutes from discovery. See Air Shield, Inc. v. Air Reduction Company, 46 F.R.D. 96 (N.D.Ill. 1968); Boyles v. Mid-Television Corporation, 431 So.2d 627, 639 (Fla. 5th DCA 1983).

The rule is that the attorney-client privilege applies only to those communications which materially facilitate the rendition of legal services by a lawyer. § 90.502(2), Fla.Stat. (1981). The communication must be primarily for the purpose of securing legal advice. See Zenith Radio Corporation v. Radio Corporation of America, 121 F.Supp. 792, 794 (D.C.Del.1954); United States v. United Shoe Machinery Corporation, 89 F.Supp. 357, 358 (D.C.Mass. 1950).

The purpose of Russell & Axon’s meeting was to review its business options. A fair characterization of the minutes after Mr. Burkett departed was not the seeking and giving of legal advice by corporate counsel. Russell & Axon’s attorney, who attended the meeting, said that the part of the meeting conducted in Mr. Burkett’s absence should be confidential because the subject of the company’s business negotiations with Mr. Burkett was going to be discussed. If those discussions were revealed, it would give Burkett an unfair advantage in that he would know the board’s feelings, motivations and strategies.

During the time Burkett was out of the meeting room, the directors discussed various business proposals and alternatives and formed a committee to negotiate with Burkett. No legal advice was sought from the attorney present about the proposals or alternatives, and, as such, I do not think the attorney-client privilege is established. I agree with the trial court’s finding that the presence of counsel in this case was “merely incidental to the primary purpose of the meeting.”

In addition, petitioners claim the trial court erred in holding that the attorney-client privilege did not bar Mr. O’Steen and Mr. Sloan from answering certified questions put to them during their depositions taken in connection with these proceedings. The questions relate to the August 10th corporate meeting described in the majority opinion which was attended by O’Steen and Sloan.

(TO MR. O’STEEN)
Q. Okay. Were formal written minutes of the meetings kept?
Q. What part were minutes kept for?
MR. KANEY: Noah, I assume if I were to ask Mr. O’Steen what the Board’s reasons were for entering the September, '79 agreement that you would object to that?
Q. Do you know why he [Chairman of the Board of Russell & Axon, George Russell] felt differently between Mr. Wood and Mr. Burkett?
(TO MR. SLOAN)
Q. During the board meeting that was held, according to Noah, on August 10, 1979, were the matters discussed between you and Chuck in your breakfast meeting discussed in the board meeting?
Q. To your knowledge, did the board of directors of E.P.A. or of International take a vote on canceling the September ’79 agreement?

I agree with the trial court these questions should be answered. In Boyles, this court had a similar situation. We held the nine questions propounded in interrogatories should be answered. We said that the attorney-client privilege does not:

extend beyond the substance of the client’s confidential communications to the attorney.... Here the privilege is invoked to avoid questions as to the policy rationales behind programming decisions. No actual communications are sought by the questions, but rather only the reasons for the decisions that were made.

Id., at 639. This is consistent with the Supreme Court’s view in Upjohn Company v. United States, 449 U.S. 383,101 S.Ct. 677, 66 L.Ed.2d 684 (1981). The privilege only protects disclosure of communications to a attorney, not discovery of underlying facts which may have been communicated to an attorney. See Diversified Industries v. Meredith, 672 F.2d 596 (8th Cir.1977); Philadelphia v. Westinghouse Electric Corporation, 205 F.Supp. 830 (E.D.Pa. 1962); State ex rel Dudek v. Circuit Court, 34 Wis.2d 559, 150 N.W.2d 387 (1967); McCormick’s Handbook of the Law of Evidence, § 389 (Cleary 2d ed. 1972).

I would deny the writ.


author: OTT, Chief Judge.

text:
    LEE COUNTY BANK, Appellant, v. Errol B. WINSON, Appellee.
    No. 82-2406.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1983.
    Rehearing Denied Feb. 1, 1984.

      Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    William A. Keyes, Jr., of Stewart, Stewart, Jackson & Keyes, Fort Myers, for ap-pellee.
   OTT, Chief Judge.

Appellant challenges a verdict awarding appellee compensatory and punitive damages in a conversion action. Appellee has cross appealed the striking of a nominal damages award. We reverse the award of punitive damages. We reverse and remand the compensatory damages award for re-computation.

On April 2, 1979, appellee approached Harwood, a commercial loan officer at appellant (the “bank”), requesting one hundred per cent financing for an automobile purchase. Appellee testified he advised Harwood of his plans to leave the Lee County area to start a charter fishing business somewhere in the Florida Keys. Har-wood denied being so advised. Harwood agreed to lend appellee $1,500 on a single payment promissory note granting to the bank a security interest “in all property of any nature whatsoever owned by [appellee] ... now or hereafter in the possession of or assigned or hypothecated to the Bank, for any purpose ....” In connection with that loan, appellee gave Harwood his girl friend’s parents’ address, 2413 Gorham Avenue (appellee had been residing there temporarily). Appellee executed the note bearing this address.

Harwood then took appellee to visit an installment loan officer, Greene. Greene agreed to lend the remainder of the purchase price; appellee agreed that the new car would be security for the loan. Unfortunately, the installment loan application, the note, and the security agreement all incorrectly listed appellee’s address as 2411 Gorham Avenue. Appellee gave his parents’ telephone number to Greene, although no one was living there. Unknown to appellee, the telephone was disconnected three days later. Appellee admitted he did not mention his anticipated departure for the Keys to Greene.

Under the terms of the installment loan security agreement, appellee was required to have automobile insurance with comprehensive and collision coverage naming the bank as loss payee. Appellee, unfamiliar with insurance required by the bank, asked his insurance agent to provide whatever the bank would normally require. The insurance agent issued personal injury protection but failed to include the requisite comprehensive and collision coverage and failed to name the bank as loss payee.

The installment loan security agreement also required appellee to promptly notify the bank if his address changed or if the collateral was removed from the county. The day after the loan transaction was concluded, appellee departed for the Keys. He stayed there a few days, deciding not to open the charter fishing business. Appel-lee spent a few days in Miami, then moved to American Yacht and Ship Corporation in Fort Lauderdale, where he lived for five to ten days. He made two more moves in the Fort Lauderdale area. During this time he began to work for Professional Aircraft Corporation. At no time did appellee notify the bank of his movements or of the new location of the collateral.

Meanwhile, back in Lee County, the bank attempted to mail appellee’s payment book to 2411 Gorham Avenue, but it was returned by the post office. Subsequently, in a letter dated April 13, 1979, and addressed^ to appellee at 2411 Gorham Avenue, the ' bank advised appellee it had no record of the required insurance. Appellee testified he received this letter on May 8, 1979. He immediately instructed his insurance agent to change the insurance to comply with the bank’s requirements.

The first payment on the installment note was due May 10, 1979. Appellee’s check dated May 4, 1979, was transmitted to the bank May 8, 1979. Bank officials confirmed that the payment was timely.

On the morning of May 10,1979, appellee received a telephone call from his girl friend. She advised him that someone from the bank had come to her home looking for him. Appellee called the bank, asking to speak to Harwood, but he was unavailable. Appellee advised a secretary that someone from the bank was trying to reach him. He also mentioned the new insurance to her. The secretary promised to look into the matter and have someone call appellee.

No one returned the call. That afternoon appellee’s car was peacefully repossessed from the parking lot of appellee’s place of employment.

Appellee again telephoned the bank that day and talked to Greene. Greene advised that the bank had received appellee’s payment but that the insurance was insufficient, whereupon appellee advised that he had corrected the insurance problem. Greene advised that the bank continued to deem itself insecure, therefore, the car would not be returned.

On May 14, 1979, the bank wrote to appellee formally advising him that the car had been repossessed “... due to but not limited to the following reasons, incorrect address, incorrect telephone, lack of proper insurance, and removing the collateral from Lee County without authorization.” The letter further advised that the car could be redeemed within ten days if appel-lee tendered the entire amount due on the installment note; otherwise the car would be sold.

On May 16, 1979, the bank received an insurance endorsement indicating that the ■ proper insurance had been acquired, effective May 8, 1979.

Appellee’s attorney by letter dated May 25, 1979, demanded the return of the automobile to appellee, insisting that no default had occurred. The bank refused to comply with the demand and proceeded to sell the automobile in a commercially reasonable manner.

Appellee sued the bank for conversion of the automobile, initially alleging that the conversion occurred when the car was wrongfully repossessed. Appellee was allowed to amend his complaint at trial to allege that the conversion occurred on the date the bank refused to return the vehicle. A jury awarded appellee $2,500 compensatory damages, $5,000 nominal damages, and $25,000 punitive damages. On rehearing, the trial judge commented that the jury was obviously confused on the issue of damages. He thereupon struck the inconsistent award of nominal damages but allowed the compensatory and punitive damages award to stand.

On appeal the bank argues that the evidence was insufficient to sustain the compensatory damages award. We reject this contention and hold that there was sufficient evidence from which a jury could have found that the bank wrongfully refused to return the automobile to appellee. The jury could have believed that appellee informed Harwood that he planned to leave Lee County with the automobile immediately but could be located through his girl friend. Furthermore, the jury could have concluded that much of the confusion and miscommunication in this case was caused when a bank employee filled in the improper address on the security agreement. Finally, appellee secured proper insurance before the repossession occurred and the bank was ultimately notified of this fact. Therefore, the evidence supports a finding by the jury that the bank wrongfully refused to return the automobile to appellee.

We find error as asserted by the bank surrounding the jury instructions on compensatory damages. In the order denying the bank’s motion for new trial, the trial court correctly conceded that the jury had been improperly instructed and that the correct measure of damages was the reasonable value of the automobile at the time of conversion less the amount of the bank’s security interest plus legal interest to the date of the verdict. See Page v. Matthews, 386 So.2d 815 (Fla. 5th DCA 1980). The bank’s interest would include the $1,500 single payment note by virtue of the “cross collateral” clause in that note. The court concluded, however, that appel-lee was entitled to damages under section 679.507, Florida Statutes (1981), of “an amount not less than the credit service charge plus 10% of the principal amount of the debt or the time price differential plus 10% of the cash price.” Because such an amount would have exceeded the • $2,500 compensatory damages award, the court reasoned that any error in the compensatory damages instruction was harmless.

Damages under section 679.507 are available when a debtor is in default and a creditor proceeds not in accordance with the provisions of Part V, Article Nine, of Florida’s Uniform Commercial Code. See generally Florida Uniform Commercial Code Part V, Art. Nine, Introductory Comments, 19(c) Fla.Stat.Ann. 366 (1966). Implicit in the jury’s finding for appellee is a finding that appellee was not in default and that acceleration, default, and repossession were premature or otherwise wrongful. Therefore, damages under section 679.507 were not available. Also, there is no evidence that the bank repossessed and disposed of the collateral not in accordance with the applicable provisions of the Uniform Commercial Code.

Appellee asserts that he is entitled to damages for injury to his credit reputation resulting from the conversion of his automobile. Appellee’s complaint stated a cause of action for conversion only. We find no authority to support appellee’s contention that such an injury is compensable through a conversion action, and he did not plead a separate tort. Cf. Matthews v. Deland State Bank, 334 So.2d 164 (Fla. 1st DCA 1976) (where plaintiff sued bank for slander of his credit when his car was allegedly wrongfully possessed).

On cross appeal, appellee asks that we reinstate the nominal damages award by adding it to the compensatory damages. He argues that the jury clearly intended to award $27,500 in total damages and that both the $5,000 and $2,500 awards can be sustained as compensatory damages. Appellee cites Cory v. Greyhound Lines, Inc., 257 So.2d 36 (Fla.1971), in support of his argument. In Cory, the jury reversed amounts to be awarded in consolidated survival and wrongful death actions. The supreme court held that based on the amounts requested it was beyond question that the jury simply transposed the amounts.

In the case sub judice, the' jury was instructed on nominal damages as follows:

If you find an invasion of the plaintiff, Errol Winson’s rights by conversion you should award at least a [sic] nominal damages. Nominal damages are awarded to indicate an invasion of one’s legal rights where, although no physical or financial injury has been inflicted, the underlying claim for conversion has been proved to the satisfaction of the jury.

During the course of deliberations, the jury asked to be reinstructed on the meaning of nominal damages, whereupon the above instruction was re-read without further explanation. At no time was the jury charged that nominal damages are damages of an inconsequential amount. Cf. Fla.Std. Jury Instr. (Civ.) 4.5(f). Nor was the jury instructed that nominal damages are awarded only in the absence of compensatory damages. See Tampa Electric Co. v. Ferguson, 96 Fla. 375, 118 So. 211 (1928).

It is clear that the jury was confused as to the meaning of nominal damages when it returned the verdict. Unlike Cory, the intent of the jury here is not apparent, therefore, we cannot accept ap-pellee’s proposition that the $5,000 nominal damages should be reinstated.

We reverse the award of punitive damages. At the close of appellee’s case and at the close of all evidence, the bank moved for directed verdict. In this case, the record conclusively shows that the bank’s refusal to return the vehicle was based upon the bona fide assertion of its rights under the security agreement and solely to protect its interests. Punitive damages may be properly awarded only where a tort involves malice, moral turpitude, or wanton and outrageous disregard of a plaintiff’s rights. Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936). In the instant case, the tort was committed by mistake in the bona fide assertion of a supposed right, without any evidence of malicious motive or wrongful intention. Therefore, the issue of punitive damages should not have been submitted to the jury.

Appellee prevailed on the issue of whether a conversion occurred. The only error to be corrected on remand is the amount of the compensatory damages which should have been awarded. There is no dispute between the parties over evidence presented on the reasonable value of the automobile or the amount due and owing on the two loans. Therefore, the damages question is a mere matter of mathematical calculation applying the equation found in Page v. Matthews. A resubmission of this question to the jury would serve no useful purpose. Consequently, we reverse the award of compensatory damages and remand this cause to the trial court with instructions to compute the damages in a manner consistent with this opinion.

REVERSED and REMANDED.

GRIMES and RYDER, JJ., concur.


text:
    In re ESTATE OF John Alfred FAIRWEATHER, a/k/a John A. Fairweather, Deceased. Alan McPHEE, James William Fairweather, Gerald Fairweather, Joyce Palm, and Geraldine Corinetti, Appellants, v. Elisa M. FAIRWEATHER, Sandra K. Klamo, George E. Fairweather, and Jay B. Fairweather, Appellees.
    No. 83-888.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1983.
    Rehearing Denied Jan. 30, 1984.
    Britt Whitaker, Tampa, for appellants.
    Seymour L. Honig and Edward H. Posey, Tampa, for appellees.
   OTT, Chief Judge.

The decedent’s will devised his entire estate to his second wife and in the event she predeceased him to appellees, the children of the decedent and his second wife. The decedent died from a gunshot wound inflicted by his second wife. She pled guilty to second degree murder. The trial court found that by operation of section 732.802, Florida Statutes (1981), the decedent’s entire estate would pass to appellees. Appellants, a half brother, brother, and children of the decedent and his first wife, argue that the decedent’s property should be distributed in accordance with the laws of intestate succession. We affirm.

Section 732.802 provides:

Murderer
A person convicted of the murder of a decedent shall not be entitled to inherit from the decedent or to take any part of his estate as a devisee. The part of the decedent’s estate to which the murderer would otherwise be entitled shall pass to the persons entitled to it as though the murderer had died during the lifetime of the decedent.

Appellants argue that a condition precedent to the bequest to appellees has not occurred, that being the natural death of the second wife. Appellants argue that the “statutory” death of the decedent’s second wife does not fulfill the condition precedent, therefore, the conditional bequest to appellees must fail.

Although we find no case wherein this argument is discussed, the statute itself is clear. The decedent’s estate “shall pass as though the murderer [the second wife] had died during the lifetime of [the] decedent.” Id. Appellees are entitled to the entire estate under the will. The decision of the trial court is AFFIRMED.

HOBSON and SCHEB, JJ., concur.

      . Appellee Jay B. Fairweather was the natural child of the decedent and his second wife. The remaining appellees were children of the second wife adopted by the decedent.

      . See § 732.1Ó1, et seq., Fla.Stat. (1981).

      . This statute was amended by chapter 82-71, section 1, Laws of Florida, effective April 2, 1982. The decedent died prior to the effective date of the amendment.