author: SHARP, Judge.

text:
    Gail Lloyd COX, Appellant, v. STATE of Florida, Appellee.
    No. 82-614.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    Rehearing Denied Jan. 17, 1984.
    S. Ray Gill, P.A., Ocala, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Cox appeals from convictions for making a false report of a crime to a police officer and attempting to make a false insurance claim to an insurer. He raises many points. The only one we find has merit is that there is no such crime in Florida as an attempt to make a false insurance claim.

Cox was charged with violating section 817.234, Florida Statutes (1981), which provides in part:

(l)(a) Any person who, with the intent to injure, defraud, or deceive any insurance company, including, but not limited to, any motor vehicle, life, disability, credit life, credit, casualty, surety, workers’ compensation, title, premium finance, reinsurance, fraternal benefit, or home or automobile warranty company:
1. Presents or causes to be presented any written or oral statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim; or
2. Prepares or makes any written or oral statement that is intended to be presented to any insurance company in connection with, or in support of, any claim for payment or other benefit pursuant to an insurance policy, knowing that such statement contains any false, incomplete, or misleading information concerning any fact or thing material to such claim,
is guilty of a felony of the third degree. ...

In this case the evidence was sufficient to sustain a jury’s determination that Cox violated section 817.234 by making telephone calls to two agents for Nationwide Insurance Company and reporting the theft of a trailer he knew had not been stolen. Later he called the claims agent and told her he wanted to withdraw the claim. Nationwide never paid any money to Cox or any other person because of the claim.

At the close of the trial defense counsel urged the court to give the jury an instruction on attempt, regarding the false insurance claim count. The trial judge said he did not think attempt was a lesser included offense of this crime because the crime itself encompassed acts which would be attempts. He cited Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976), approved, 340 So.2d 928 (Fla.1976). However, contrary to his initial ruling, the trial judge instructed the jury on attempt. The jury returned a verdict of guilty of “attempted false and fraudulent insurance claim, a lesser included offense of Count II,” and the judge allowed the verdict to stand.

We are unable to distinguish this case from King v. State, 317 So.2d 852 (Fla. 1st DCA 1975), aff'd, 339 So.2d 172 (Fla.1976), which held there is no such crime as attempting to utter a forged instrument because the substantive crime itself includes acts which would be attempts. “If the crime is itself an attempt to do an act or accomplish a result, there can be no attempt to commit that crime.” King at 853. This analysis was also employed in Silves-tri, wherein the court held there was no such crime in Florida as the attempted making of a false report to a police officer concerning a crime under section 817.49, Florida Statutes (1975), because the acts constituting an attempt were included in the criminal offense itself.

Recently the Florida Supreme Court held in State v. Sykes, 434 So.2d 325 (Fla.1983), that there is no such crime in Florida as attempted second degree theft because the statute defines an attempt to commit the offense as part of the substantive crime. “The substantive completed crime is fully proved when an attempt, along with the requisite intent, is established.” Id. at 327.

In this case, the substantive crime clearly encompasses acts which logically are prepatory or preliminary to presenting a false claim to an insurance company. Even more clearly than section 817.49, Florida Statutes (1981), section 817.234 encompasses attempts.

The error in this case was clearly invited and urged on the trial court by defense counsel. To grant Cox a remedy based on that error seems outrageous to our system of justice as well as a complete collapse of logic. However, we are bound by Sykes, and Achin v. State, 436 So.2d 30 (Fla.1982), wherein the court reiterated the general rule that one may never be convicted of a nonexistent crime.

Accordingly, we reverse Cox’s judgment based on Count II. Attempted making of a false and fraudulent insurance claim is a nonexistent crime in Florida, since attempt is encompassed in the substantive offense itself. On remand Cox can be retried for the offense set forth in section 817.234. Double jeopardy will not bar a new trial. Sykes; Achin; Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1982). We affirm Cox’s conviction under Count I.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

ORFINGER, C.J., and DAUKSCH, J., concur.

      . § 817.49, Fla.Stat. (1981).

      . § 817.234, Fla.Stat. (1981).

      . These cases held that double jeopardy did not bar reprosecution where the defendant was convicted of a crime which although technically nonexistent, was in all elements equal to the main offense.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re ESTATE OF Fred Dewitt HARLESS, Deceased. Elvis Keith LESTER, Calvin Garrold Lester, Kathy Higginbotham, and Gayle Clelland, Appellants/Cross-Appellees, v. Patricia NORDELO, et al., Appellees/Cross-Appellants.
    No. 82-1133.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    Rehearing Denied Jan. 23, 1984.
    David LaCroix, of Sieg, Comfort, Hawk, LaCroix & Reid, and Harold Silver, Gaines-ville, for appellants Elvis Keith Lester, Calvin Garrold Lester and Kathy Higginbot-ham.
    Bernard A. Jackvony, of Sciarretta, Jackvony & Buresh, Fort Lauderdale, for appellant Gayle Clelland.
    Phil Trovillo, P.A., Ocala, for appellees Patricia Nordelo, Barbara England, and James Frederick Harless.
    No appearance for appellees Freda Wicker and Rita Hatfield.
   PER CURIAM.

This is an appeal and a cross-appeal from an “Order and Final Judgment”, in a probate case. Upon a careful examination of that document it is determined that it is not entirely an appealable order. The order determines certain persons to be “heirs and beneficiaries” but reserves ruling on whether others are to be such. Until the court finally determines all issues before it, we decline to take jurisdiction.

Appeal dismissed.

DAUKSCH and COWART, JJ., and FOX-MAN, Associate Judge, concur.


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. Paul PERRERA and Marjorie Perrera, Appellees.
    Nos. 83-105, 83-106.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    Rehearing Denied Jan. 23, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellees.
   COWART, Judge.

At the hearing on the petitions of appel-lees, Paul and Marjorie Perrera for writs of habeas corpus the only evidence presented was the extradition papers which named Paul and Marjorie Perrera as the persons sought. The trial court accepted appellees’ argument that the State had failed to meet its burden to establish by extraneous proof that the appellees were the same persons named in the extradition warrant and granted the petitions for habeas corpus. The State appeals. We reverse.

While it is generally held that the State has the burden of proving the identity of a person arrested for extradition as the person for whom the warrant was issued, evidence that the arrested person’s name is identical to the name contained in the extradition warrant is prima facie evidence that the person arrested is the person named in the warrant. Obviously the strength of the inference of identity arising from the identity of names varies with the rarity of the names and their combination. However, when the name of the person in custody is the same as that on the warrant the prima facie evidence is not overcome by the mere refusal of the arrested person to admit he or she is the same person named in the warrant and a petition for habeas corpus should be denied. Brunelle v. Norveil, 433 So.2d 19 (Fla. 4th DCA 1983), Solano v. State, 417 So.2d 302 (Fla. 3d DCA 1982); State ex rel. Sklaroff v. Purdy, 219 So.2d 723 (Fla. 3d DCA 1969).

The order granting the petitions for ha-beas corpus is

REVERSED and REMANDED.

ORFINGER, C.J., and WATSON, Associate Judge, concur.

      . See, e.g., 93 A.L.R.2d 912, §§ 10-11; 39A C.J.S. Habeas Corpus § 192; 39 Am.Jur.2d Habeas Corpus, § 80; 31 Am.Jur.2d Extradition, § 67.


author: COBB, Judge. COWART, Judge,

text:
    Heather A. LYNCH, Appellant, v. Adel D. TENNYSON, Richard A. Tennyson, American Liberty Insurance Company, The City of Casselberry and United States Fidelity & Guaranty Company, Appellees.
    Nos. 82-1237, 82-1563.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    Rehearing Denied Jan. 23, 1984.
    Paul H. Bowen of Swann & Haddock, P.A., Orlando, for appellant.
    Marón E. Lovell of Marón E. Lovell, P.A., Orlando, for appellees Adel D. Tennyson, Richard A. Tennyson, and American Liberty Ins. Co.
    H. David Luff of Sanders, McEwan, Mims & McDonald, Orlando, for appellees City of Casselberry and U.S. Fidelity & Guar. Co.
   COBB, Judge.

This appeal arises from a rear-end vehicle collision in Seminole County on May 16, 1980. Since the plaintiff/appellant, Heather Lynch, suffered an adverse summary judgment on the liability issue below, we review the record from the most favorable factual basis inferentially available to her.

Lynch was travelling east on Red Bug Road following an automobile driven by A. Tennyson, with a distance of some four to five car lengths between them. Tennyson stopped suddenly, having collided with the rear of the car in front of her. The traffic ahead of Tennyson had stopped because an emergency vehicle, a fire engine from the City of Casselberry, had pulled out into Red Bug Road in front of a car preceding Tennyson and Lynch. Lynch skidded into Tennyson. No brake lights were ever apparent to Lynch, according to her sworn statement.

The issue presented to the trial court at summary judgment hearing was whether or not Lynch was the sole cause of the last collision, as a matter of law, thereby discharging Tennyson and Casselberry from liability. It is beyond dispute that Lynch was negligent as a matter of law, and such has been conceded on appeal. Cf, Baughman v. Vann, 390 So.2d 750 (Fla. 5th DCA 1980).

A summary judgment is not proper if the facts and evidence are reasonably susceptible of conflicting inferences. Rogers v. Parker, 241 So.2d 428 (Fla. 2d DCA 1970). This court has recently stated that:

The movant for a summary judgment has the initial burden of demonstrating the non-existence of any genuine issue of materia] fact. Once he tenders competent evidence to support his motion, the opposing party must come forward with counter evidence sufficient to reveal a genuine issue. Landers v. Milton, 370 So.2d 368 (Fla.1979). Courts will not be disposed to grant a summary judgment unless a movant can show unequivocally that there was no negligence, or that the plaintiffs negligence was the sole proximate cause of the injury. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). Similarly, a question of proximate cause must generally be resolved by the trier of fact from all the facts and circumstances in a particular case, and where questions of negligence or contributory negligence are close, any doubt should always be resolved in favor of a jury trial. McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977). See Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977). Negligence must be shown to be a proximate cause of the injury, and proximate cause does not equal possible cause, nor does it cover every possibility that may indeed occur. Stanage v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980).

Goode v. Walt Disney World Co., 425 So.2d 1151, 1154 (Fla. 5th DCA 1982). It is not necessary at a hearing on summary judgment for the non-moving party to produce evidence to prove its case as it would at trial; available inferences may allow the case to survive a motion for summary judgment. Platel v. Maronda Homes, Inc. of Florida, 423 So.2d 627 (Fla. 5th DCA 1982).

From the facts in this case, there is an available inference that Tennyson was driving too close to the car in front of her and, consequently, came to a sudden and unexpected stop when she ran into its rear, thereby contributing to some degree to the second impact by Lynch’s vehicle. See Bialek v. Lensen, 421 So.2d 654 (Fla. 1st DCA 1982); Whitworth v. Cuchens, 397 So.2d 357 (Fla. 1st DCA 1981); Chiles v. Beaudoin, 384 So.2d 175 (Fla. 2d DCA 1980); Lubliner v. Gabrilowitz, 393 So.2d 46 (Fla. 3d DCA 1981); Revellino v. Avis Rent-A-Car System, Inc., 229 So.2d 896 (Fla. 3d DCA 1969); Pagan v. Holman, 195 So.2d 606 (Fla. 4th DCA 1967).

In respect to the summary judgment entered in favor of the City of Casselberry, no argument has been presented to this court, either in appellant’s written brief or oral argument, to indicate the factual nature of any negligence by the City of Cas-selberry. The vague negligence allegation against Casselberry was stated in the third amended complaint thusly:

12) Defendant, THE CITY OF CAS-SELBERRY, acting by and through its agents, servants or employees acting within the scope of their agency, service or employment, carelessly and negligently operated an emergency vehicle owned by such Defendant City on or about May 16, 1980, on Red Bug Road in Casselber-ry, Florida. Such negligence was the direct and proximate cause of an auto collision wherein Plaintiff was injured.
13) Defendant, THE CITY OF CAS-SELBERRY, had a duty to operate their emergency vehicle with due regard for the safety of all persons using the highway and to give adequate warning to all other vehicular traffic along the emergency route.
14) Defendant, THE CITY OF CAS-SELBERRY, breached such duty to Plaintiff by negligently operating their emergency vehicle without due regard for the safety of all persons using the highway and by failing to adequately warn all other vehicular traffic along the emergency route, thereby causing a multiple car collision wherein Plaintiff was injured.

Formal assignments of error are no longer required. Fla.R.App.P. 9.040. It is required, however, that the brief of an appellant contain an argument with regard to each issue. Fla.R.App.P. 9.210(b)(4). The issue of the negligence vel non of the City of Casselberry has not been addressed by the appellant before this court. Even in the absence of a rule requiring that errors be assigned, professional advocacy necessitates that errors relied on for reversal should be stated in the brief, with the points argued. Florida Citrus Comm. v. Owens, 239 So.2d 840 (Fla. 4th DCA 1969); cert. denied, 242 So.2d 873 (Fla.1971); Anderson v. State, 215 So.2d 618 (Fla. 4th DCA 1968); Cf, Health Clubs of Jacksonville v. State, 381 So.2d 1174 (Fla. 1st DCA), review denied, 389 So.2d 1110 (Fla. 1980).

The appellees, Casselberry and its carrier, have contributed to the confusing posture of this case by failing to raise the appellant’s omissions adverted to above, either by motion to strike appellant’s brief in regard to said appellees or in their answer brief, which is devoted to a discussion of the law of Florida relating to the presumption of negligence arising from a rear-end collision. The appellant attempts to raise one issue — the sufficiency of Casselberry’s motion for summary judgment per Florida Rule of Civil Procedure 1.510(c) — for the first time in her reply brief, which is improper.

Accordingly, the summary judgment in favor of the Tennysons and their carrier, American Liberty Insurance Co., is reversed. The summary judgment in favor of the appellees, City of Casselberry and United States Fidelity & Guaranty Co., is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

ORFINGER, C.J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Four cars were travelling successively east on Red Bug Road in Seminole County, Florida; the first driven by a person unknown, the second driven by Roberts, the third by the appellee Tennyson, and the fourth by appellant Lynch. When confronted with the sudden emergency created by a City of Casselberry fire department truck (C.F.D.) entering the road unexpectedly and without warning the unknown driver stopped successfully avoiding a collision with the fire truck. Roberts also stopped without colliding with the rear of the unknown ear. Tennyson was unable to voluntarily stop and collided with the rear of Roberts’ car. Likewise thereafter Lynch was unable to voluntarily stop and collided with the rear of Tennyson’s car.

These basic facts are simple and uncon-troverted. Their legal effect and consequence are not.

Lynch sued Tennyson and the City of Casselberry alleging negligence. Essentially Lynch’s claim was that Tennyson was negligent in following Roberts more closely than was reasonably prudent under the circumstances which negligence caused Tennyson to collide with Roberts which collision caused Tennyson to stop suddenly, unexpectedly and without warning which stop caused, or contributed to causing, Lynch to collide with Tennyson. One trial judge granted Tennyson’s motion for summary judgment. Another trial judge granted the City of Casselberry’s amended motion for summary judgment and granted a final summary judgment for the city and against Lynch. Lynch appeals the final summary judgment. The majority opinion affirms the summary judgment in favor of the City of Casselberry and reverses the summary judgment in favor of Tennyson. I would do the opposite.

Traffic control laws provide that no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions, having regard for all existing and potential hazards. The law further provides that in every event speed shall be controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance or object on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. Among the conditions of which all drivers must keep constantly aware are (1) all existing or potential hazards that may require a stop to prevent a collision and (2) all factors that may affect the driver’s ability to stop to avoid a collision with any person, vehicle or other object. Factors affecting an ability to stop without colliding include (1) the driven vehicle’s stopping capacity including its speed, weight, tires and brakes, (2) the road conditions, including visibility of a safe stopping range, (3) the driver’s skill, reaction time and attention. All of these factors are, or should be, within the knowledge and control of the driver of a vehicle but not that of the driver of some other vehicle. The law, in effect, places the duty on every driver to control the speed of a driven vehicle so that it can be stopped before it collides with any object ahead of it. This duty necessarily involves the distance within which the driver can see ahead and the distance to be maintained behind another vehicle moving in the same direction. Every driver has the duty and a concomitant right to stop as may be necessary to avoid colliding with any object ahead. This right and duty may require a quick stop and, when they do, this is a use of the road in the usual way and one of the “potential hazards” that is readily foreseeable by every driver who follows another vehicle. A driver is required to signal his stop. Every driver is also charged with the knowledge that the driver of the vehicle ahead has the same rights and duties to stop suddenly when necessary. In effect the law requires all drivers to push ahead of themselves an imaginary clear stopping distance or assured stopping space or adequate zone within which the driven vehicle can come to a stop. Failure to maintain such a zone is normally the sole proximate cause of injuries and damages resulting from the collision of a vehicle with an object ahead. This is why when a vehicle collides with an object ahead of it, including the rear of a leading vehicle, there is a presumption of negligence on the part of the overtaking or following vehicle. About the only exception to this common sense rule occurs when a driver is maintaining an assured stopping space ahead and unfore-seeably someone enters and shortens that space (such as the Casselberry fire department truck pulling onto Red Bug Road within the assured stopping space of the unknown car) and the first driver is unable to stop within the reduced stopping space. This is all elementary traffic court law.

Lynch’s claim against Tennyson is based on the proposition that by stopping “suddenly and without warning” the driver of a lead car may be guilty of negligence that contributes to the negligence of a following driver whose vehicle negligently collides with the rear of the lead car. To better understand the theoretical basis for this claim let us first consider the potential liability of Roberts to Tennyson, a matter not in issue in this case. Depending on the time, distances, road, weather, traffic and other conditions and circumstances, including the space left between Roberts and the unknown car when Roberts came to a stop, Roberts may, or may not have, decelerated and stopped unnecessarily quick in avoiding collision with the unknown car ahead of her. If, in the face of the sudden emergency, she did have judgment decision discretion or alternatives or options as to her rate of deceleration and she elected to decelerate unreasonably rapid, and to stop sooner than was necessary in order to avoid colliding with the unknown car and thereby unnecessarily and unreasonably shortened the time and distance Tennyson would have otherwise had within which to stop without colliding with Roberts and this contributed to causing Tennyson to collide with Roberts, then all questions of fact intrinsically involved in determining whether Roberts was guilty of negligence contributing to causing the Tennyson-Roberts collision, or even the Lynch-Tennyson collision, might properly be left to a jury for determination and no summary judgment should be entered on those issues. This rationale, although tenuous, might support a finding of negligence by Roberts as to Tennyson and even as to Lynch. The city employees operating the Casselberry fire truck obviously had an opportunity to make a judgment decision as to whether to pull out and into Red Bug Road exactly when and where it was done and if they exercised that judgment under the circumstances alleged (that is, without adequate warning and without due regard for the danger that decision and action created for oncoming traffic), imprudence and lack of due care in making that decision and in taking that action might be an adequate basis to support a finding that negligence of employees of the city contributed to causing the resulting multi-car chain reaction collisions that ultimately injured Lynch.

As no one has suggested or explained a better one, the above rationale also appears to be the sole basis for Lynch’s claim of negligence against Tennyson. However, the above rationale does not apply to Tennyson’s liability for the Lynch-Tennyson collision and I cannot agree with the statement in the majority opinion that negligence on the part of Tennyson that contributed to causing Lynch to collide with Tennyson can be inferred from the facts in this case because that statement is based on the premise or assumption that the proximate cause of the Tennyson car coming to a “sudden and unexpected” stop was the consequence of Tennyson’s action in following Roberts too closely. Appellant’s argument, approved by the majority opinion, goes as follows: Tennyson was negligent in following Roberts too closely, which caused Tennyson to collide with Roberts, which caused Tennyson to stop suddenly, which contributed to causing Lynch to collide with Tennyson. Therefore, it is reasoned, Tennyson’s negligence in following Roberts too closely contributed to causing Lynch to collide with Tennyson. It sounds good because it flows good but this argument is not sound. The fallacy in this chain of reasoning lies in the assumed causal relationship in the implicit proposition, or enthymeme, that because Tennyson was legally negligent in colliding with Roberts, therefore Tennyson should be legally responsible to Lynch for the sudden stop that occurred as the result of the collision of Tennyson with Roberts. The fallacy is in the reasonable sounding assumption that Tennyson stopped because of the Tennyson-Roberts collision. Certainly in an immediate physical sense Tennyson stoped and stopped “suddenly” because she collided with Roberts but Lynch did not collide with Tennyson because Tennyson collided with Roberts but because Tennyson stopped and Lynch could not stop in time to avoid colliding with Tennyson. Tennyson was forced to stop because Roberts stopped in the road ahead of her and, once Roberts stopped when and where she did, Tennyson had no choice but to stop, one way or another. In a correct comparative sense, because it is uncontroverted that Roberts did stop before Tennyson stopped, Tennyson then had, at best, but two alternatives, viz: to stop by colliding with Roberts or to stop before colliding with Roberts. By colliding with Roberts Tennyson did not stop sooner or more suddenly than she would have stopped had she stopped before colliding with Roberts. While Tennyson may have collided with Roberts because she (Tennyson) was following Roberts too closely Tennyson did not stop ahead of Lynch because of her collision, she had no choice but to stop, with or without a collision, when, where and how she did because Roberts had already stopped. In a real sense Tennyson was but. one link, without will or volition, in a connected causal chain stretching from the Casselberry fire truck entering the road back through the resulting necessary reactions of the other drivers and to Lynch’s collision with Tennyson. The last event in this causal chain, that is, the one closest to the event whose cause is being sought (in this case Lynch’s collision with Tennyson) is correctly referred to as the proximate efficient cause and in this case it is Lynch’s inability to meet her duty to stop before colliding with Tennyson. Again, this is why a rear-end collision raises a presumption of negligence on the part of the overtaking vehicle. In the study of causation a necessary condition is one in the absence of which the event cannot take place. Neither Tennyson’s following Roberts too closely nor Tennyson’s collision with Roberts nor even an unnecessarily sudden stopping by Tennyson was a necessary condition in the absence of which Lynch could not have collided with Tennyson. A sufficient condition is one in the presence of which the event is certain to take place. Lynch’s driving at such a speed and close distance to Tennyson that she could not, under all conditions, stop without colliding with Tennyson is alone a sufficient condition of her collision with Tennyson, there being no other necessary conjunctive conditions.

As a matter of obvious and actual fact Tennyson’s car did not come to a stop as a consequence of Tennyson following Roberts too closely but because Roberts’ car, stopped in the highway, set a positive outer limit within which both Tennyson and Lynch were required to stop or collide. Under the uncontroverted facts and circumstances existing in this ease Tennyson cannot be legally liable to Lynch for negligence in stopping her car too suddenly and unexpectedly and cannot be said to have stopped her car unnecessarily suddenly because, as a matter of law and physical fact, Tennyson could not, and did not, stop suddenly enough to avoid colliding with Roberts which Tennyson had an absolute legal duty to do and consequently an absolute legal right to try to do. When confronted with the sudden emergency caused by the Casselberry fire truck entering Red Bug Road no one has suggested that any of the car drivers, Lynch, Tennyson, Roberts, or the unknown driver, had any option except to try to stop before hitting the car (or fire truck) ahead of them. Apparently, from the fact that the unknown driver did not hit the fire truck and Roberts did not hit the unknown car, both the unknown driver and Roberts did have some discretion or option but it was only to stop before or after hitting the fire truck or car ahead of them.

The tort duty to act only with due regard for foreseeable danger to others relates only to volitional acts. Under the uncontested facts in this ease, consistent with a legal duty to avoid colliding with others, those operating the Casselberry fire truck had two choices: (1) the decision to, or not to, move onto Red Bug Road and (2) the manner in which it was done. The unknown driver and Roberts had no choice but to stop but may have had choice or volition as to the manner (i.e., the rate of deceleration). Tennyson and Lynch had no choice as to either stopping or the manner — they had to stop and do it as fast as absolutely possible.

From the moment Roberts stopped, Tennyson may not even have had a choice but to hit Roberts. If Tennyson had no choice but to stop by colliding with Roberts and made no decision, then, although she may be legally responsible for damages to Roberts (and to herself, Tennyson) for negligence in following too closely to stop without colliding with Roberts, nevertheless, Tennyson would not be liable to Lynch for negligence in making a decision as to the rate of her deceleration or as to the time and place she stopped. On the other hand, even considering that, theoretically, Tennyson had the same two options as did Roberts and the unknown driver, that is, to stop either before or after hitting the car ahead, consider carefully what they were and the consequences of Tennyson’s exercise of either choice: if Tennyson had a choice and had exercised it in favor of stopping before hitting Roberts, then Tennyson’s choice would have only shortened the time and space that Lynch had within which to stop before hitting Tennyson. By Tennyson actually hitting Roberts, Tennyson, whether intentionally or not, gave Lynch the maximum time and distance possible within which to stop without collision and Tennyson cannot be liable to Lynch for doing that. In summary, Tennyson either did or did not have volition as to the time and place she stopped ahead of Lynch. If she did not have choice she cannot be liable to Lynch for negligence in exercising that volition; if she did, she made the decision giving Lynch the maximum time and distance in which to stop without collision. As a matter of fact it was Roberts or the unknown driver or the fire truck driver but definitely not Tennyson, that made the decision and did the act that effectively set the limit of time and space within which both Tennyson and Lynch had to stop or collide with the car ahead.

As they traveled along down Red Bug Road, consider the distance between Roberts and Tennyson as “A” and the space between Tennyson and Lynch as “B.” A driver must not follow another vehicle more closely than is reasonable and prudent. This means Tennyson had a duty to Roberts to maintain within distance “A” sufficient space within which Tennyson could stop without colliding with Roberts. Lynch likewise had a duty to Tennyson to maintain sufficient distance in “B” to enable Lynch to stop before colliding with Tennyson. Both Tennyson and Lynch violated this duty. However, in the context of Tennyson s right to stop, or to try to stop, to meet her duty to avoid colliding with Roberts, Tennyson had no legal duty to maintain a lookout for following vehicles. More specifically, Tennyson owed no legal duty to Lynch to observe the distance “B” that Lynch was maintaining as an assured stopping space and then to decide that Lynch was not maintaining a safe assured stopping distance and then to consider and extend distance “A” and to maintain it solely so that in any emergency Tennyson could use extended distance “A” ahead of herself in order to decelerate at a slower rate than necessary for Tennyson to avoid colliding with Roberts all only in order to give Lynch needed time and distance within which she (Lynch) could safely stop in addition to the insufficient distance “B” which Lynch was maintaining for that purpose. No driver does or is required by law to do this and merely to state it should be sufficient to demonstrate its absurdity. If Lynch needed more distance within which to come to a stop without colliding with Tennyson she was the best one to know it and she could gain it herself by merely extending distance “B.” Drivers can control the distance between themselves and the car ahead but cannot effectively control the distance to the car behind them and the law should put no burden on them to do so. Tennyson cannot be legally faulted or held responsible for merely occupying the space equal to the distance of her car as it was crushed between Roberts and Lynch because “everyone must be somewhere” and Tennyson had as much right to be on Red Bug Road as any of the other drivers. She cannot be held liable for negligence by having merely been there. Tennyson was merely caught between two jaws or pincers, comprised of Roberts’ stopped car ahead and Lynch’s overtaking car from behind; for the result to Lynch, Tennyson should not be liable.

The absence of negligence because of the absence of an applicable legal duty can be ruled as a matter of law. Roberts’ car being stopped in the highway ahead of Tennyson was an emergency that absolutely necessitated Tennyson stopping and as a matter of law Tennyson did not stop more suddenly than was necessary and is not liable to Lynch for stopping unnecessarily suddenly (by colliding with Roberts) although Tennyson may be liable to Roberts for not stopping soon enough. Tennyson should not be liable to Roberts for not stopping soon, or suddenly, enough and at the same time be liable to Lynch for stopping too soon or suddenly. By granting the summary judgment for Tennyson the trial judge correctly ruled as a matter of law that Tennyson owed no legal duty to Lynch as to the distance Tennyson followed Roberts. For these reasons I would affirm the summary judgment in favor of Tennyson and reverse the summary judgment in favor of the City of Casselberry.

      . Of course, every following driver desires an "adequate and sufficient signal” meaning one that gives the following driver adequate time and space within which to safely stop. However "an appropriate signal" is more correct and the usual vehicle automatic brake light permitted by statute is appropriate as a matter of law.

      . There are numerous ways to invade and encroach upon the assured stopping space that a driver is trying to maintain ahead. Another example is a sudden stopping by a passing vehicle after a return to the right lane within the passed vehicle’s assured stopping space.

      . Lynch could overtake and collide with Tennyson even if Tennyson never stopped and was only moving in the same direction at a lesser speed.

      . If Lynch should claim that Tennyson could have, and should have, veered to the left or right to avoid colliding with Roberts that argument would avail Lynch nothing because Lynch would have the same option and duty and the fact that Tennyson rammed Roberts rather than swerving left or right means only that Tennyson left that option open to Lynch by not preempting space to either side of Roberts.


text:
    Linton Douglas GILLING, Appellant, v. STATE of Florida, Appellee.
    No. 82-1517.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 1983.
    Rehearing Denied Jan. 20, 1984.

      H.S. Henderson, III, Melbourne, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

The State made a prima facie showing sufficient to withstand defendant’s motion for judgment of acquittal, • so we find no error in the denial of that motion. See Tibbs v. State, 397 So.2d 1120 (Fla.1981). Neither was there any objection to the introduction of certain State’s evidence which appellant now contends was erroneously admitted. Appellant contends also that there was prosecutorial misconduct such as to destroy his fundamental right to a fair trial, but there was no objection at all to any of the prosecutor’s comments now complained of, nor did appellant file a motion for new trial. Therefore none of these matters now complained of have been preserved for appeal. The judgment of conviction must therefore be

AFFIRMED.

ORFINGER, C.J., COWART, J., and WATSON, Associate Judge, concur.


author: SCHOONOVER, Judge.

text:
    Jerome W. PECKINS, Lynne Peckins, and Charold & Co., Ltd., Appellants, v. Harold KAYE, Virginia Kaye, Charles C. Hoffberger and Bernice Hoffberger, Appellees.
    No. 83-477.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.
    Rehearing Denied Jan. 19, 1984.

      Carl J. Robie, III, Sarasota, for appellants.
    Philip N. Hammersley of Trawick & Grif-fis, P.A., Sarasota, for appellees.
   SCHOONOVER, Judge.

This is an appeal from a summary judgment entered in an abuse of process action. We affirm.

Litigation between the parties began when the appellants filed an eight count complaint against the appellees and others. The appellees answered and counterclaimed alleging that the appellants had maliciously joined them in the action. In response to this counterclaim, the appellants, with court permission, filed the instant action for. abuse of process.

The appellants alleged, in substance, that the appellees’ counterclaim was filed and implemented for the purpose of carrying out a threat to delay the appellants’ main action, and to cause them to suffer unreasonable attorney’s fees, costs, harassment, aggravation, and inordinate expenditures of their time and money.

The court granted the appellees’ motion for summary judgment and this appeal timely followed.

We agree with the appellants’ contention that it is not necessary to prove a technical issuance of process in order for them to recover. In an abuse of process action, process may mean an action that is initiated independently such as the commencement of a suit, or one initiated collaterally, such as an attachment. Tellefsen v. Key System Transit Lines, 198. Cal.App.2d 611, 17 Cal.Rptr. 919 (1961). Therefore, the filing of a counterclaim may constitute issuance of process for the purpose of an abuse of process action. Blackstock v. Tatum, 396 S.W.2d 463 (Tex.Civ.App.1965); Hewes v. Johnston, 61 N.C.App. 603, 301 S.E.2d 120 (1983); Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979).

However, although it is not necessary to show a technical issuance of process, the trial court properly found that no genuine issue of material fact existed, and that the appellees were entitled to a summary judgment as a matter of law. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

A cause of action for abuse of process requires a showing of a willful and intentional misuse of process for some wrongful and unlawful object, or collateral purpose. Cline v. Flagler Sales Cory., 207 So.2d 709 (Fla. 3d DCA 1968). The abuse consists not in the issuance of process, but rather in the perversion of the process after its issuance. The writ or process must be used in a manner, or for a purpose for which it is not by law intended. Black-stock.

In the case sub judice, the record contains evidence that prior to the filing of the counterclaim in question, one of the appellees threatened' to cause the appellants undue and inordinate expenditures of their time and money. This indicates there may have been an ulterior motive of harassment in the filing of the counterclaim. An ulterior motive in itself is not sufficient. There must be an improper willful act during the course of the proceedings to constitute an abuse of process. Hewes. The record does not reflect any improper willful act using the process to achieve a collateral purpose not within the normal scope of the process. Accordingly, the trial court properly determined that the appellees were entitled to a judgment as a matter of law.

AFFIRMED.

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


author: GRIMES, Acting Chief Judge.

text:
    In re FORFEITURE OF the following described property: 1977 JEEP CHEROKEE, VEHICLE I.D. # J7A17MP120681. Jim D. HARDCASTLE, Sheriff of Sarasota County, Florida, Appellant, v. Rudolph KRATZ, Appellee.
    No. 83-915.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1983.
    Rehearing Denied Jan. 19, 1984.
    F. Steven Herb of Nelson, Hesse, Cyril, Smith, Widman & Herb, Sarasota, for appellant.
    Mark Lipinski of Law Offices of Jerome Platt, Palmetto, for appellee.
   GRIMES, Acting Chief Judge.

The sheriff appeals from a final order denying forfeiture of a jeep involved in a drug transaction. The order reads as follows:

THIS CAUSE having come to be heard upon the Petition for Rule to Show Cause and for Final Order of Forfeiture of JIM D. HARDCASTLE, SHERIFF OF SARASOTA COUNTY, and the Court having been advised in its premises, it is
Findings of Fact
Special Agent Cornelius of the Florida Department of Law Enforcement met with Rudolph Kratz several times about purchasing two kilos of cocaine. At these meetings, the cocaine was to be delivered from Kratz to Cornelius through a Confidential Informant. On the day of the transfer, the Confidential Informant drove to Pete Reynard’s Restaurant, Holmes Beach, Florida in his B.M.W. automobile. Kratz arrived in his 1977 Jeep Cherokee Wagon. After a short conversation between Kratz and the Confidential Informant, Kratz left the restaurant and drove the 1977 Jeep Cherokee Wagon to his residence located in Holmes Beach, Florida. He went into the residence and then returned to the Jeep and drove back to Pete Reynard’s restaurant where he met again with the Confidential Informant. While Kratz was away from the restaurant, the Confidential Informant was searched by a special agent of the FDLE and he was clean. His B.M.W. automobile was not searched. After the meeting with Kratz, the Confidential Informant immediately drove to the Manatee-Sarasota Airport where he turned over the cocaine to Agent Cornelius. The Confidential Informant and Cornelius then drove to FDLE headquarters in Sarasota and Special Agent Trubey then tested the suspected cocaine with a reliable field test and the results were positive. After the cocaine was delivered, Agent Cornelius had a phone conversation with Kratz and complained about the quality of the cocaine and Kratz told him that if he didn't like it he could return it and they would try for better stuff the next day. Thereafter Kratz was arrested in Sarasota County and the 1977 Jeep Cherokee seized.
Issue: Whether the 1977 Jeep Cherokee Wagon was significantly involved in the furtherance of an illegal drug operation and is therefore liable to forfeiture.
Findings
The Confidential Informant did not testify and there was no testimony that Kratz ever had the cocaine in the Jeep, although there is an inference that Kratz picked up the cocaine at his residence and delivered it to the Confidential Informant at Pete Reynard’s. There was no showing of a nexus between the illigal [sic] cocaine delivered and the 1977 Jeep Cherokee,
it is hereby
ORDERED AND ADJUDGED:
1. That the Petition of JIM D. HARD-CASTLE, SHERIFF OF SARASOTA COUNTY, for forfeiture of the 1977 Jeep pursuant to Florida Statutes, Sections 932.701 through 932.704 is denied.
DONE AND ORDERED this 6th day of April 1983, in Sarasota, Florida.

Because the findings of fact are supported by the evidence, we accept them for purposes of this appeal. However, we hold that as a matter of law the court erred in reaching the findings drawn from these facts.

The Florida Contraband Forfeiture Act directs the forfeiture of any motor vehicle used in violation of section 932.702, Florida Statutes (1981). Subsection (3) of that provision makes it unlawful:

[t]o 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. (Emphasis added.)

Apparently, the court below was under the impression that the jeep could be forfeited only if the sheriff were able to prove that the cocaine had been in it. There is some authority for this position. Certain federal courts have construed 49 U.S.C. § 781, which contains the same wording as section 932.702, as authorizing the forfeiture of only those vehicles which serve as the site of a drug transaction or are used to transport the contraband itself. Howard v. United States, 423 F.2d 1102 (9th Cir.1970); Platt v. State, 163 F.2d 165 (10th Cir.1947). On the other hand, there are at least two district court rulings upholding the forfeiture of an automobile simply because it was used to transport a key figure to the site of a drug transaction. United States v. One 1941 Pontiac Sedan, 83 F.Supp. 999 (S.D.N.Y.1948); United States v. One Dodge Coupe, 43 F.Supp. 60 (S.D.N.Y. 1942). Cf. United States v. One 1977 Cadillac, 644 F.2d 500 (5th Cir.1981), which implies that a vehicle used to transport a dealer to the site of drug sale negotiations might be subject to forfeiture under 49 U.S.C. § 781.

The only Florida case to confront this issue is In re Forfeiture of 1979 Toyota Corolla, 424 So.2d 922 (Fla. 4th DCA 1982). There, German Mora had driven a Toyota automobile to a grocery store parking lot to meet an undercover detective. At the parking lot, he got into the detective’s vehicle where the parties agreed upon a drug sale. Mora’s accomplice then arrived and handed a bag containing cocaine to Mora who delivered it to the detective. The Toyota was neither the site of negotiations nor the repository of the cocaine. Nevertheless, the court affirmed an order forfeiting the Toyota and stated:

The real issue in this case is how little a nexus is necessary to make a vehicle subject to forfeiture. In this case, we have no question of the following things: a drug deal was made; Mora was a key figure in the deal; the deal was to be consummated in a parking lot; Mora drove the car in question to the parking lot to consummate the criminal transaction. Given those facts, we hold that is all that is necessary to warrant a forfeiture of the car in question. By using his car to transport himself to the site of a drug transaction, Mora used the car to facilitate the consummation of the transaction.

424 So.2d at 924.

In the instant case, Kratz agreed to sell cocaine to agent Cornelius through a confidential informant. Kratz drove to Pete Reynard’s Restaurant in the jeep. After meeting the informant, Kratz drove the jeep back to his residence in Holmes Beach and returned in the jeep to the restaurant where he again met the informant. The informant then proceeded directly to the airport where he delivered cocaine to Cornelius. Any doubt concerning whether Kratz supplied the cocaine was dispelled by his telephone conversation with Cornelius the following day. While the evidence did not unequivocally place the cocaine in the jeep, the record clearly reflects that the jeep was used to transport cocaine or to carry Kratz to and from the transaction site. In either event, the jeep was used to “facilitate” the sale of the cocaine.

We do not overlook our recent decision in City of Clearwater v. One 1980 Porsche 911 SC, 426 So.2d 1260 (Fla. 2d DCA 1983). There we held that an automobile driven from Clearwater to the Tampa Airport by a drug dealer who flew to North Dakota to consummate a marijuana sale was only remotely incidental to the drug transaction. Here, the jeep was more closely related to the cocaine sale in that, at the very least, it was used by Kratz as his sole means of transportation to and from the place where the cocaine changed hands.

We reverse the order and remand with directions to enter a judgment of forfeiture.

DANAHY and CAMPBELL, JJ., concur.


author: COBB, Judge.

text:
    Melvin C. JAMES, Appellant, v. Elise C. JAMES, Appellee.
    No. 82-1569.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1983.
    Rehearing Denied Jan. 20, 1984.

      Nicholas A. Caputo, P.A., Holly Hill, for appellant.
    John V. Doyle, Daytona Beach, for appel-lee.
   COBB, Judge.

The parties petitioned the lower court to dissolve their marriage of almost 17 years. The Final Judgment of Dissolution from which the former husband appeals is affirmed, except with respect to the award of permanent periodic alimony to the former wife. Given the former wife’s lump sum alimony award of the husband’s one-half interest in the jointly-owned marital home, her good health and her education, only an award of rehabilitative alimony is proper. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983); Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981), review denied, 412 So.2d 465 (Fla.1982); cf., G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980).

Accordingly, the portion of the Final Judgment awarding permanent periodic alimony is reversed and this cause is remanded for the lower court to enter an award to the former wife of rehabilitative alimony for a period of two years, the length of time which the record reflects she will need to obtain a teaching certificate. The Final Judgment is in all other respects

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

      . According to the former wife's testimony, the net proceeds from the sale of the marital home would be approximately $120,000. This amount, less the $65,000 mortgage, is $55,000, one-half of which, $27,500, would be the value of the former husband's interest, which the lower court awarded as lump sum alimony.


author: FOXMAN, Associate Judge.

text:
    COLONIAL PENN COMMUNITIES, INC., and Colonial Penn Insurance Company, Appellants, v. James R. CROSLEY, Appellee.
    No. 82-1640.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1983.
    Rehearing Denied Jan. 23, 1984.

      Ted R. Brown of Maguire, Voorhis & Wells, P.A., Orlando, for appellants.
    Thomas F. Woods of Woods, Johnston & Carlson, Tallahassee, for appellee.
   FOXMAN, Associate Judge.

Colonial Penn Communities, Inc., Colonial Penn Insurance Company, and CPC Agency, Inc., appeal the entry of final partial summary judgment in favor of plaintiff/appellee James Crosley on the issue of whether appellants wrongfully withheld commissions from appellee on the sale of certain policies of mobile home insurance. For the reasons set forth below, we reverse.

Appellee Crosley was hired in 1973 to act as sales coordinator for Colonial Penn Communities in the sale of mobile homes and the lease of mobile home lots. That same year, CPC Agency, Inc., which is engaged in the business of insurance underwriting, began marketing insurance to mobile home buyers at the Colonial Penn Communities development. To facilitate insurance sales, Colonial Penn Communities reimbursed ap-pellee for expenses incurred in obtaining an insurance sales license, and thereafter ap-pellee acted as sales agent for both mobile homes and mobile home insurance policies. Appellee was paid a salary plus commissions and fees on the sale of mobile homes and the renting of lots.

In 1980, Crosley filed suit against appellants, claiming that he was wrongfully denied commissions on the policies of insurance he sold from 1973 until 1979. Specifically, appellee maintained that appellants violated Florida Statute § 624.425(1) (1979) by failing to pay him the standard and usual commission paid to insurance agents employed by CPC Agency, Inc.

The statute appellee relies on provides:

(1) Except as stated in s.624.426, no authorized property, casualty, or surety insurer shall assume direct liability as a subject of insurance resident, located, or to be performed in this state unless the policy or contract of insurance is issued by or through and is countersigned by, a local producing agent who is a resident of this state, regularly commissioned and licensed currently as an agent of the insurer under this code. If two or more authorized insurers issue a single policy of insurance against legal liability for loss or damage to person or property caused by the nuclear energy hazard, or a single policy insuring against loss or damage to property by radioactive contamination, whether or not also insuring against one or more other perils proper to insure against in this state, such policy if otherwise lawful may be countersigned on behalf of all of the insurers by a licensed resident agent of any insurer appearing thereon. Such agent shall receive on each policy or contract the full and usual commission allowed and paid by the insurer to its agents on business written or transacted by them for the insurer.

This statute was enacted by the legislature to assure the presence of local agents to serve the needs of policyholders who had previously encountered difficulties in dealing with insurance companies headquartered out of state. The provision, which is contained in Florida’s Insurance Code, § 624.01 et seq., is designed to protect the public and not insurance agents. See Taggart v. House Finance Group, Inc., 239 S.C. 345, 123 S.E.2d 250 (1961). Nonetheless, appellee urges that a private action exists for insurance agents.

If the legislature fails to create an express statutory cause of action, courts will reluctantly imply such right if the plaintiff is in the class of persons whom the statute is intended to protect. Taggart, supra. In the instant case, the policyholders who purchased insurance from CPC Agency, Inc., and not the agents who sold such policies, are the protected class.

Even if we were to accept appellees’ argument that he is entitled to base his claim or section 624.425(1), we are still mindful that the statute only provides that the “full and usual commission shall be paid.” Presumably, if the insurer does not ordinarily compensate its agents by commission, then the insurer is not obligated to pay any amount in addition to salary. In Broderick v. Travelers Ins. Co., 175 F.2d 694 (9th Cir.1949), the Ninth Circuit interpreted an Idaho statute almost identical to the statute presently under consideration. The court observed:

The statute appears to assume that a commission will be paid the agent, but it does not prescribe the amount; nor does it in terms or by necessary implication require that all policies be issued on a commission basis. Without more, the enactment would ordinarily be thought to contemplate only that when a commission is paid the full amount thereof shall be paid the resident agent, the carrier and agent being in other situations impliedly left free to determine by contract the mode of compensation, (footnotes omitted).

As in Broderick, this court is left speculating about what percentage commission would be proper. The notable absence of guidelines in the statute concerning the amount agents are to receive suggests that the legislature intended the parties to be free to fix for themselves the method of such compensation. Appellee Crosley’s ample salary during his employment with appellant CP Communities indicates that the parties were aware of, and took into consideration, the value of appellee’s services as insurance agent in setting his level of compensation.

We are also reluctant to grant the appel-lee a commission on the sale of policies of insurance dating back as far as 1973. Ap-pellee sold mobile home insurance policies continuously from 1973 until 1979. Although he apparently notified appellants that he thought a commission was due and owing for this period, he voluntarily refrained from filing suit for six years.

Rights which may be conferred by statute, contract,, or constitution may be waived by the beneficiary of such rights. Kilpatrick v. McLouth, 392 So.2d 985 (Fla. 5th DCA 1981). In Arbogast v. Bryan, 393 So.2d 606 (Fla. 4th DCA 1981), a real estate agent claimed that he had not received the full amount of the commissions he was owed on property sold over a six-year period. The court refused to compel his employer to pay any additional amount to the agqnt because of his acceptance of the reduced commission for such an extended length of time. The Arbogast court stated:

Waiver may be express or implied. Although waiver does not arise from fore-bearance for a reasonable time, it may be inferred from conduct or acts putting one off his guard and leading him to believe that a right has been waived. Id. at 608.

Thus, in view of the arguments outlined above, and based on appellee’s failure to present his claim in a timely fashion, this court is compelled to reverse the trial court’s grant of summary judgment in ap-pellee’s favor.

REVERSED and REMANDED.

COWART, J., concurs.

DAUKSCH, J., dissents without opinion.


author: DELL, Judge.

text:
    RESORT PROPERTIES, INC., Appellant, v. JUPITER INLET CONDOMINIUM ASSOCIATION, INC., Jupiter Roofing & Sheet Metal, Inc., and Resort Properties & Pilot Homes, Appellees. and JUPITER INLET CONDOMINIUM ASSOCIATION, INC., Cross-Appellant, v. RESORT PROPERTIES, INC., Jupiter Roofing & Sheet Metal, Inc. and Resort Properties & Pilot Homes, Cross-Appellees.
    Nos. 81-1957, 82-1705.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Rehearing Denied Feb. 9, 1984.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellant/cross-appellee, Resort Properties, Inc.
    Thomas A. Hoadley of Hoadley & Gavi-gan, P.A., West Palm Beach, for appel-lee/cross-appellant, Jupiter Inlet Condominium Ass’n, Inc.
    Daniel H. James of Hamilton, James, Merkle & Young, West Palm Beach, for appellee/cross-appellee, Jupiter Roofing & Sheet Metal, Inc.
   DELL, Judge.

This appeal involves a claim for damages resulting from the defective construction of certain condominium buildings in the Jupiter Inlet Condominium Association.

We have carefully reviewed the record and find there is substantial competent evidence to support the trial judge’s final judgment holding appellant, Resort Properties, Inc., liable for the damages of appel-lee, Jupiter Inlet Condominium Association, Inc., and to support his judgment exonerating Jupiter Roofing & Sheet Metal, Inc., from liability. However, we find merit in appellant’s contention that the trial court erred in failing to reduce the amount of the judgment by the sum of $14,500 which Resort Properties, Inc., and Jupiter Roofing & Sheet Metal, Inc., collectively spent making repairs to the roofs.

Accordingly, we affirm the judgment of liability in favor of Jupiter Inlet Condominium Association, Inc., and against Resort Properties, Inc. We reverse that portion of the judgment assessing the amount of damages in the amount of $63,315 and remand this cause to the trial court with directions to award Resort Properties, Inc., a setoff in the amount of $14,500 against the judgment. We affirm all other aspects of the judgment.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

HURLEY, J., and SIMONS, STUART M., Associate Judge, concur.


author: WALDEN, Judge.

text:
    ROYAL PALM BEACH COLONY, INC., Appellant, v. GREENWAY VILLAGE SOUTH ASSOCIATIONS NO. 1, 2, 3, AND 4, INC., non-profit Florida corporations, a class representation, Herbert Kaplan, Martin Samuels, Martin Katz and D.J. Panerali, individually and collectively, Appellees. ROYAL PALM BEACH COLONY, INC., Appellant, v. GREENWAY VILLAGE SOUTH ASSOCIATION NO. 1, INC., Greenway Village South Association No. 2, Inc., Greenway Village South Association No. 3, Inc., and Greenway Village South Association No. 4, Inc., Appellees.
    Nos. 83-143, 83-197.
    District Court of Appeal of Florida, Fourth District.
    Dec. 28, 1983.
    Robert M. Gross of Moyle, Jones & Flani-gan, P.A., West Palm Beach, for appellant.

      Herbert P. Benn of Blank & Benn, West Palm Beach, for appellees.
   WALDEN, Judge.

The appealed orders in these consolidated cases effectively ended the litigation by granting summary judgment in one and granting motion to dismiss in the other. We are of the opinion that the trial court acted prematurely and in violation of procedural law; and thus, we reverse.

Appellant, Royal Palm Beach Colony, Inc., owned and developed a condominium project known as Greenway Village South. It was built in four stages. Each stage became a condominium association. As the project was completed it was turned over to the unit owners. Each Declaration of Condominium contained identical recreational leases. The appellees are the several associations.

Pursuant to the leases’ escalation clauses, appellant, Royal Palm Beach, increased the rent in accordance with the consumer price index. The appellees, the Associations, refused to pay.

The Associations sought declaratory relief and asserted that the escalation clauses were unlawful and unenforceable (Appeal No. 83-143). The trial court granted summary judgment in favor of the Associations based on a finding that the escalation clauses were void as a matter of public policy and hence were unenforceable. Royal Palm Beach appeals.

In the county court, Royal Palm Beach sued the Associations for rent pursuant to the escalation clauses. The trial court granted the Associations’ motion to dismiss based on a finding that the leases were contrary to public policy. Royal Palm Beach appeals (Appeal No. 83-197).

We are of the opinion that, according to Florida Rule of Civil Procedure 1.510(c), there were genuine issues of material facts which stood in the way of a determination that the Associations were entitled to judgment as a matter of law. (Appeal No. 83-143).

In summary and without unduly laboring it, the summary judgment improperly determined that because the recreational lease appeared to contain all nine prohibited elements listed in Section 718.-122(1), Florida Statutes (1977), it was unconscionable as a matter of law, and no genuine issues of material fact remained. However, the statute creates only a presumption of unconscionability that may be rebutted upon a showing of additional facts and circumstances to justify and validate what otherwise appears to be an unconscionable lease. Additionally, the summary judgment failed to address and to resolve several affirmative defenses raised by the appellant, in particular:

1. The statute of limitations operated to bar the proceedings.
2. The appellant had tendered full disclosure, thereby negating alleged unconscionable sales practices.
3. The various recreational leases were executed prior to the effective date of Section 718.401(8)(a), Florida Statutes (1981) which declared void as against public policy such rent escalation clauses.

As to Appeal No. 83-197, it is basic that the well pled allegations of a complaint are to be taken as true when faced by a motion to dismiss. The grounds for the motion to dismiss were these:

1. Whether pursuant to Section 718.122, Florida Statutes (1977) the recreational lease was facially unconscionable because it contained all nine elements which raise a presumption of unconscionability; and
2. Whether pursuant to Section 718.-401(8)(a), Florida Statutes (1981) the rent escalation clause was against public policy and therefore unenforceable. Applicability of the statute was effective only if the condominium documents adopted future amendments to the Condominium Act.

The complaint, without here reproducing it, clearly stated an action for rent so that the Associations’ defenses would necessarily have to be pleaded and proved. Critically, the issue was whether or not the parties intended to be bound by future amendments to the Condominium Act. This decision, in light of the allegations of the complaint, could not be decided against Royal Palm Beach upon motion to dismiss.

We reverse as to both appeals and remand for further proceedings consistent herewith.

REVERSED and REMANDED.

ANSTEAD, C.J., and DOWNEY, J., concur.


author: BOOTH, Judge.

text:
    John DA COSTA, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Miami Association of Fire Fighters, Local 587, I.A.F.F., Appellees.
    No. AJ-235.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    Rehearings Denied Feb. 2, 1984.

      Robert L. Norton and Barry Jay Warsch of Hogg, Allen, Ryee, Norton & Blue, Coral Gables, for appellant.
    J.W. Cheatham, Staff Counsel, Tallahassee, for appellee Public Employees Relations Commission.
    Joseph H. Kaplan of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, and Joseph C. Segor, Miami, for appel-lee Miami Ass’n of Fire Fighters, Local 587, I.A.F.F.
   BOOTH, Judge.

This cause is before us on appeal and cross-appeal from an order of the Public Employees Relations Commission (PERC) dismissing unfair labor practice charges brought by a public employee (Da Costa) against the Miami Association of Fire Fighters, Local 587, IAFF (Union). The charges filed with PERC stated the following basis:

Since April, 1981, John Da Costa, an employee of the City of Miami Fire Department, has been the object of threats, intimidation and harassment due to his desire to withdraw from the above Union and stop payments of dues to that Union. The Union: (1) circulated a so-called “hit list” of non-members to all station houses, listing the seven out of 600 unit members who do not belong to the Union, with his name at the top of the list, so as to “make an example” of him and force him to “take his medicine”, and has posted these lists in all City of Miami station houses, where they remain to this day; (2) forced him to appear before the Union’s Executive Board before he could resign and cease paying dues; (3) made and continue to make prank phone calls to his home, disturbing and upsetting his wife and children, thoughout the day and night; (4) continues to bring his name up at Union meetings as a “scab”, whereupon the men in attendance threaten him with bodily harm; and, (5) causes him to receive threats, harassment, and insults on the job while engaged in non-union, work related duties. All of the above continues to this day, solely because John Da Costa wanted to quit the Union and thereby stop paying dues.

The Union responded with a simple denial of “the essential allegations of the charge” but admitted circulating a notice to its membership that Da Costa was not a member. Hearing was had, and the hearing officer issued a recommended order in favor of the Union which the Commission adopted.

On appeal, the three issues to be addressed are:

I. Application of Section 447.503(6)(b), Florida Statutes, which provides:

If the commission determines that the alleged unfair labor practice occurred more than 6 months prior to the filing of the charge, the commission shall issue an order dismissing the ease.

II. The interpretation of Section 447.-301, Florida Statutes, which provides, in part:

(1) Public employees shall have the right to form, ... or to refrain from forming, joining, or participating in, any employee organization....
(2) ... Public employees shall have the right to refrain from exercising the right to be represented.
(3) Public employees shall have the right to engage in concerted activities not prohibited by law, for the purpose of collective bargaining or other mutual aid or protection. Public employees shall also have the right to refrain from engaging in such activities.

III.The interpretation with respect to the facts of this case of Section 447.501(2), Florida Statutes, which provides, in part as follows:

... A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from:
(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part ....

Appellant Da Costa is one of eight fire fighters in the City of Miami who is not a member of the 700-member Union, Fire Fighters Local 587, IAFF. The hearing officer found that Da Costa, a fire fighter and driver/engineer, joined the Union 18 years ago when he began his employment; that in December of 1980, Da Costa’s loans to the Fire Fighters’ Credit Union were discharged in bankruptcy, and that his payroll deductions for Union dues were stopped as a result of the bankruptcy order. Thereafter, the Union’s Executive Board, having attempted to persuade Da Costa to remain in the Union and pay back dues and having allowed him a certain time for payment of back dues without success, voted at the November 11 meeting to drop Da Costa’s membership. At the same meeting, the Executive Board decided to post in all the City firehouses lists of nonunion members, and to include Da Costa’s name on that list.

The posting of the lists and all pertinent events thereafter occurred within six months prior to the filing of an unfair labor charge by Da Costa. The Union meeting of October 9, 1980, and the Union Executive Board meetings of November 11, 1980 and December 11, 1980, at which statements, charges, and decisions were made which culminated in the posting of the list of non-members, occurred prior to the six-month period preceding the filing of the unfair labor charge.

The hearing officer ruled that events that occurred more than six months prior to the date the charge was filed would be dismissed, but that such events could be used “to shed light on the true character of matters within the limitations.” Despite that statement, however, the hearing officer explicitly refused to resolve factual disputes relative to various events outside the six-month period and did not consider such events as an indicia of improper conduct on the part of the Union. In his order, the hearing officer rejected for “technical reasons, i.e. ... statute of limitations, agency, and free speech,” events which would otherwise indicate improper conduct on the part of the Union, as follows:

In sum, I find no evidence that the Union interferred with, restrained, or coerced DaCosta in the exercise of his rights, or that the Union caused or attempted to cause the City of Miami to discriminate against DaCosta or that the Union discriminated against DaCosta because he filed this charge. I am conscious of the fact that my conclusion is based in part upon a series of “technical” reasons, i.e. it is based upon statute of limitations, agency, and free speech grounds with which various events have been rejected as valid indi-cia of improper conduct on the part of the Union. I find it necessary, therefore, to state that I have also viewed the case from a wider perspective, yet I find the result to be the same.
The Union, not content with having 99.9% of the bargaining unit as members, zealously sought to retain DaCosta as a member and recruit those few other nonmembers. The Union’s proselytizing was vigorous I believe, but not illegal. DaCosta’s problems, however, may be attributable to more than his simply quitting the Union. The record also supports an inference that members are unhappy with the man for the effect that his bankruptcy had on the Credit Union. And beyond that, I believe some fire fighters resent DaCosta’s allowing the Union to “carry” him for nearly all of 1980 without paying Union dues, seeking the Union’s assistance during the disciplinary matter and then complaining about the quality of that assistance. The remedy for DaCosta may have to come, not from the filing of an unfair labor practice charge, but through “a certain toughening of the mental hide.” (emphasis added)

The Commission adopted the recommended order of the hearing officer and, with regard to the statute of limitations issue, ruled:

Having concluded that the evidence as a whole fails to show any threat or intimidation within the limitations period to Da Costa in retaliation for his withdrawing from membership in the Union or to regain his membership, we agree with the Hearing Officer that those events which occurred outside the statute of limitations for unfair labor practices are immaterial to the ultimate decision in this case, (emphasis added)

The Commission and the hearing officer erred in their interpretation of the six-month limitation period of Section 447.-503(6)(b) as applied to an unfair labor practice based on a continuing course of conduct. The employee has the burden to prove that an unfair labor practice occurred within six months of the filing of his complaint. However, he may, as in this case, seek to prove that charge by evidence of events occurring prior to the six-month period. The hearing officer must receive evidence of such events, as he did in this case, but further, he must fulfill his function of resolving conflict, determining credibility of witnesses, and evaluating evidence as it bears on the unfair labor practice charged to have occurred within the six-month period.

In the instant case, the posting of the non-membership list, followed by the telephone calls to the employee’s home, verbal abuse of the employee coupled with threats, a fight with a former Union official, and other events occurring within the six-month period, should be interpreted against the background of the earlier occurrences for the purpose of determining whether the events within the statutory period constituted an unfair labor practice.

Basic to the rights guaranteed to employees to form, join, or assist labor organization is the right to engage in concerted activities to persuade other employees to join for their mutual aid and protection NLRB v. Drivers, Chauffeurs, Helpers, Local Union, 362 U.S. 274, 80 S.Ct. 706, 4 L.Ed.2d 710 (1960). However, there are limits to that right. Both the Union and the employer are precluded, by virtue of Section 447.501(2), Florida Statutes, from activities infringing on the rights of individual employees. These rights include those incident to membership, and to non-membership, in a Union. The public interest in preserving the neutrality of institutions concerned with essential public services is clear and precludes intimidation and harassment of public employees by either the employer or the union.

The Florida Legislature chose to go further than did Congress in protecting the rights of employees. The Florida Act defines unfair labor practices to include union activities “interfering with” employee rights, in addition to those activities restraining or coercing the exercise of employee rights, while the NLRA only proscribes those activities of a union which “restrain or coerce employees in the exercise of their rights.” Both the federal and the Florida Acts protect expression, arguments, or opinions from being the basis for unfair labor charges, so long as they do not carry a threat of reprisal or force or promise of benefit. NLRA, Section 8, 29 United States Code, Section 158(c); Section 447.501(3), Florida Statutes. Neither Act protects all verbal conduct, however. Even under the NLRA, words which might seem harmless can be found to be coercive depending on the circumstances under which they are uttered. The broader protection of the Florida statute proscribing activities which interfere with rights of public employees extends at least as far as the NLRA in protecting employees from such harassment.

The hearing officer and the Commission clearly take too narrow a view of the public employee’s rights and of what constitutes conduct interfering with those rights under Section 447.501(2). It matters not whether the harassment of the employee is for the purpose of collecting Union dues, punishing the employee for his discharge in bankruptcy of the loan made him by the largely Union-sponsored credit union, coercing renewal of membership in the Union, or a combination of these. If the “moving cause” of the actions against Da Costa was that employee’s membership or participation in, or lack of membership or participation in, the Union, Section 447.-501(2) applies. Lake City v. Public Employees Relation Commission, 353 So.2d 127, 129 (Fla. 1st DCA 1977).

The question to be determined is whether the events occurring within the six months prior to the filing of the charge were orchestrated by the Union and interfered with the employee’s rights. Conduct which might otherwise be protected activity loses that status when it invades the employee’s home. Duval County School Board v. PERC, 363 So.2d 30 (Fla. 1st DCA 1978) (peaceful picketing of employee’s residence not protected as free speech); United Mechanics Union, etc., 151 N.L.R.B. 386 (1965) (demonstration at non-strikers’ homes with demonstrators accusing non-strikers of “scabbing,” held not protected activity). The hearing officer found that Da Costa received late-night, annonymous telephone calls at his home after the Union posted the non-membership list, and that fire fighter White, referring to Da Costa’s discharge in bankruptcy of the loan from the Fire Fighters Credit Union, said, “In this crazy town there’s people that blow up people’s cars for less than that,” but held that the Union could not be held responsible unless the evidence showed that the Union “intended to confer the right upon the unknown callers and White [to do the acts charged] or endorsed or ratified these actions.” This test for union responsibility is too limited, in that it does not take into account the rule that intent can be inferred where the result is the reasonably foreseeable consequence of union conduct.

Accordingly, the order below is reversed and the cause remanded for further proceedings consistent herewith, including the taking of further evidence, if any, as may be required.

MILLS and THOMPSON, JJ., concur.

      . The Union’s answer did not meet the requirements of PERC Rule 38D-21.05(2); under PERC Rule 38D-21.05(4), the charges would have been deemed admitted at that point. We find it unnecessary to rule on this procedural issue in view of our disposition of the primary point on appeal. We also find it unnecessary to address the sequestration of witnesses issue raised by appellant. The Union’s cross-appeal of the denial of its claim for litigation expenses we find to be without merit.

        . For instance, the hearing officer explicitly did not resolve the factual dispute between appellant and Gonzalez concerning whether Gonzalez, a Union officer, stated that appellant would have to "take his medicine.” Resolution of that issue, as well as consideration of other confrontations between appellant and the Board and/or its officers, may shed light upon the Union’s intent in posting the list of non-members and could result in a determination that the Union instigated, directed, approved or acquiesced in the acts of its members.

      .Under federal law [also a six-month statute of limitations, NLRA § 10(b), 29 U.S.C. § 160(b) ], evidence of events outside the statutory period is admissible where "occurrences within the six-month limitation period in and of themselves may constitute, as a substantive matter, unfair labor practices." Local Lodge No. 1424, International Assoc. of Machinists v. NLRB, 362 U.S. 411, 416-417, 80 S.Ct. 822, 826, 4 L.Ed.2d 832 (1960); See, e.g., Shumate v. NLRB, 452 F.2d 717, 719 (4th Cir.1971) (suit against union for coercion held not barred by statute of limitation, and evidence that more than six months before filing the charge employees had crossed the picket line and union had fined and expelled them was admissible, because union threats to sue and filing of suits to collect fines against employees were within six-month period; evidence of prior events was “admissible to illuminate the character of the union’s more recent tactics"); International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. NLRB, 363 F.2d 702, 706 (DC Cir.1966):
      When within the six-month period there has been active conduct, as contrasted with mere passive inaction following an old offense, it is open to the Board to refer to previous acts “to shed light on the true character of matters occurring within the limitations period.” 362 U.S. at 416, 80 S.Ct. at 826. In effect what was involved” here was a basic Company approach started more than six months prior to the charge, but carried forward by more recent actions.

        NLRB v. Southern Plasma Corporation, 626 F.2d 1287 (5th Cir.1980), where employer closed his laboratory, allegedly to rid himself of unionizing employees prior to the six-month period, but reopened the laboratory within the statutory period, having hired new, non-union employees, the court held that the charge was timely filed and that evidence of the motive of the employer in closing and in reopening the plant, although derived from circumstances arising outside the six-month period, was admissible.

      . North Brevard County Hospital District, Inc. v. PERC, 392 So.2d 556, 566 (Fla. 1st DCA 1980).

      . The federal Act, NLRA Section 8(b)(1), 29 United States Code, Section 158(b), provides:
      It shall be an unfair labor practice for a labor organization or its agents — (1) to restrain or

        coerce (A) employees in the exercise of the rights guaranteed in section 7 (29 U.S.C.S. § 157).... (emphasis added)
      By comparison, Section 447.501(2)(a), Florida Statutes, provides:
      (2) A public employee organization or anyone acting in its behalf or its officers, representatives, agents, or members are prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.... (emphasis added)

      . Corriveau & Routhier Cement Block, Inc. v. NLRB, 410 F.2d 347 (1st Cir.1969), where president of employer company in conversation with employee said "You must know who went union,” court held circumstances made those words coercive and not protected. The same opinion, reversing the Board, held that statements by a union sympathizer to a co-worker that he would "see him down the road” was a threat and not protected language, stating: "An employee's Section 7 rights are a shield against employer oppression, not a sword to intimidate fellow employees ...;” NLRB v. United Mine Workers of America, 195 F.2d 961, 962 (6th Cir.1952), cert. denied, 344 U.S. 920, 73 S.Ct. 387, 97 L.Ed. 709 (1953):
      It is true that the calling of names under certain circumstances may not amount to coercion; but in the degree to which it was exhibited here it expressed overwhelming hostility.

      . Radio Officers Union of the Commercial Telegraphers’ Union v. NLRB, 347 U.S. 17, 44-45, 74 S.Ct. 323, 338, 98 L.Ed. 455 (1954); NLRB v. General Drivers, Chauffers & Helpers, etc., 264 F.2d 21, 23 (10th Cir.1959): "It is sufficient if the result is the foreseeable consequence of Union conduct”; NLRB v. Local 140, United Furniture Workers of America, 233 F.2d 539, 541 (2d Cir.1956): "No evidence of specific intent is necessary, as these duly accredited representatives of the union must be presumed to have intended the natural and reasonable, foreseeable consequences of their acts”; Kerry Coal Co. v. United Mine Workers of America, 637 F.2d 957 (3d Cir.1981), cert. denied, 454 U.S. 823, 102 S.Ct. 109, 70 L.Ed.2d 95 (where union argued it could not be held responsible in the absence of evidence that union "instigated, supported, ratified, or encouraged” the activities, the court responded that the fact finder could "infer” such instigation, etc., by union); Hull v. Sheet Metal Workers’ International Ass’n., 161 F.Supp. 161, 170-171 (ND Ohio 1958):
      In determining whether the activities of the respondents restrain or coerce Burt’s employees, The Board has the right to take into account all the facts and circumstances in the case and to draw reasonable inferences therefrom. N.L.R.B. v. Link-Belt Co., 311 U.S. 584 [61 S.Ct. 358, 85 L.Ed. 368] [1940], ... Radio Officers’ Union of Commercial Telegrapher’s Union v. N.L.R.B., 347 U.S. 17 [74 S.Ct. 323, 98 L.Ed. 455] [1954]....

      While Link-Belt and Ford involved unfair labor practice of an employer, it is submitted that there is no difference between coercion by an employer and coercion by a labor union. It may be just as effective when applied by either....

      Proof of specific intent is unnecessary where the conduct of the respondents inherently restrains or coerces employees in the exercise of their rights. This is but an application of the common law rule that a man is held to intend the foreseeable consequences of his own act....