text:
    HOLIDAY GULF BUILDERS, INC., a Florida corporation, Appellant, v. TAHITIAN GARDENS CONDOMINIUM, INC., a nonprofit Florida corporation, Appellee.
    No. 83-1492.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.
    Rehearing Denied Jan. 6, 1984.

      Gerald A. Figurski of Martin, Richmond, Booth, Cook & Figurski, New Port Richey, for appellant.
    Richard A. Zacur of Mensh, Zacur & Graham, P.A., St. Petersburg, for appellee.
   SCHEB, Judge.

Holiday Gulf Builders, Inc., appeals the trial court’s order denying its motion to set aside default and the final judgment entered in favor of Tahitian Gardens Condominium, Inc. We affirm the order refusing to set aside the default but reverse the final judgment awarding damages and attorney’s fees to Tahitian Gardens.

Tahitian Gardens filed suit alleging that assessments were due from Holiday, a successor developer, for thirty-six unbuilt units in a Pasco County condominium complex. The trial court entered a default against Holiday after it failed to answer the complaint within the requisite time period.

Subsequently, without notice to the defendant, the trial court entered final judgment against Holiday. Over two weeks later, Holiday filed a motion to set aside default and final judgment pursuant to Florida Rule of Civil Procedure 1.500(d). After receiving Holiday’s affidavits and hearing arguments by counsel, the trial court found that Holiday failed to show excusable neglect and also failed to establish a meritorious defense. The court denied Holiday’s motion, and this appeal ensued.

We have examined the record and Holiday’s argument alleging error in the trial court’s denial of its motion to set aside default. We find no gross abuse of discretion on the part of the trial court. Therefore, we are not authorized to reverse on this point. Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977).

However, we do find merit in Holiday’s contention that the trial court erred in entering a final judgment awarding damages and attorney’s fees to Tahitian Gardens without submitting the issue of damages to a jury. Tahitian Gardens requested a jury trial in two of the three counts of the complaint. These two counts included the relief awarded in the final judgment.

In Ansel v. Kizer, 428 So.2d 671 (Fla. 2d DCA 1982), this court stated:

It is well settled that where a plaintiff has made a demand for jury trial, the defendant is entitled to a jury trial on the issue of damages even though a default has been previously entered against the defendant for failure to answer or otherwise plead.

428 So.2d at 672. See also Fla.R.Civ.P. 1.430. Here, Holiday never consented to any withdrawal of the demand for a jury trial. Tahitian Gardens, nevertheless, contends that any error in withdrawing the demand for a jury trial is harmless, because the damages in this case are liquidated. We disagree. The complaint incorporated the declaration of condominium, which formed the basis of the agreement between the parties. The declaration established the percentage of the total assessments that each unit would be required to pay. These percentages varied according to the individual units. The declaration also established a procedure for determining and collecting the assessments. Consequently, the assessments would vary depending upon the expenditures required to maintain the common elements as well as any additional special assessments. The amount of damages that Holiday owed Tahitian Gardens for assessments on the thirty-six unbuilt units would depend upon variables not set forth in the pleaded agreement. See Robinson v. Peterson, 375 So.2d 294 (Fla. 2d DCA 1979). Holiday is therefore entitled to a jury trial on the issue of damages.

Likewise, Holiday is entitled to a jury trial on the issue of attorney’s fees. In addition to establishing a procedure for assessments, the declaration of condominium provided for the payment of reasonable attorney’s fees when Tahitian Gardens incurs legal expenses in the collection of delinquent assessments. In Newcombe v. South Florida Business Negotiators, 340 So.2d 1192 (Fla. 2d DCA 1976), we stated that “[i]n a jury trial a claim for attorney’s fees predicated upon a provision in the contract between the parties becomes an element of damages and must be determined by the jury.” 340 So.2d at 1194. Tahitian Gardens’ request for “reasonable” attorney’s fees is a request for unliquidat-ed damages, and consequently Holiday is entitled to a jury trial on that issue as well. Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla. 5th DCA 1983).

Accordingly, we affirm the order denying Holiday’s motion to set aside default, but we vacate the final judgment and remand for a jury trial on the issue of damages including attorney’s fees.

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


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    Mariam L. VAYVOSKI, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Jay Tool & Die Company, Appellees.
    No. 83-398.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    Rehearing Denied Jan. 5, 1984.

      S.G. Green, Orlando, for appellant. Norman A. Blessing, Tallahassee, for ap-pellee Unemployment Appeals Commission.
    No appearance for appellee Jay Tool & Die Co.
   DAUKSCH, Judge.

This is an appeal from an order of the Commission affirming a referee’s decision to dismiss appellant’s appeal as untimely. The appeal was taken by appellant as a claimant for unemployment compensation.

Section 443.151(4)(b)l, Florida Statutes (1982) provides:

The claimant or any other party entitled to notice of a determination as herein provided may file an appeal from such determination with an appeals referee within 20 days after the date of mailing of the notice to his last known address or, if such notice is not mailed, within twenty days after the date of delivery of such notice.

Rule 38E-5.05, Florida Administrative Code provides:

Appeals filed by mail shall be considered to have been filed when deposited in a receptacle of the United States Postal Service. The postmark shall be considered evidence of the date of posting.

The record is not clear regarding certain factual matters which are important to this case. In order for the appeal to have been properly dismissed it must appear that the notice mentioned in the statute was mailed more than twenty days before the appeal was filed in accordance with the administrative rule. In order to make such a factual determination it is necessary for the Commission, or its proper designate, to hold a hearing and consider all relevant evidence on this issue, after due notice is given to the claimant. Due notice was not given to appellant that there was a jurisdictional question to be heard and decided. Therefore, we quash the decision affirming the order dismissing the appeal and remand this matter for the hearing and such further proceedings as are warranted.

REVERSED and REMANDED.

ORFINGER, C.J., and COWART, J., concur.


author: PER CURIAM.

text:
    James E. CHURCH, Petitioner, v. Lawrence R. KIRKWOOD, Circuit Judge, Respondent.
    No. 83-1027.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1983.
    Rehearing Denied Jan. 9, 1984.

      Charles R. Trulock, Jr., Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for respondent.
   PER CURIAM.

This matter is before us on a petition for writ of prohibition after the trial court denied a motion to discharge. Because the speedy trial period had expired and no delay attributable to the accused was substantially shown, we grant the writ and remand this matter to the trial court for an order discharging petitioner.

Writ granted.

DAUKSCH, SHARP and COWART, JJ., concur.


author: SHIVERS, Judge.

text:
    Rodney McCOLLOUGH, a/k/a Bruce Lane, Appellant, v. STATE of Florida, Appellee.
    No. AM-474.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.
    Rehearing Denied Feb. 1, 1984.
    David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

McCollough appeals his convictions and sentences for grand theft and malicious mischief. Appellant argues that the trial court committed reversible error by failing to make a Richardson inquiry after allowing into evidence the surprise testimony of a State witness concerning statements made to the witness by appellant. We agree, reverse and remand.

McCollough was accused of grand theft of merchandise from an Albertsons grocery store and malicious mischief in connection with the breaking of a window on a Tallahassee police car. Appellant filed a demand for discovery seeking, inter alia, information and materials specified in Florida Rules of Criminal Procedure 3.220(a)(1) and (2). Rule 3.220(a)(1)(iii) requires the prosecution to reveal the substance of any oral statement made by the accused. The State’s answer to demand for discovery states, “The defendant did not make oral statements .... ”

At trial, Jose Melappana testified that he was working at the Albertsons store at about 6:00 A.M. on October 25, 1981. Me-lappana advised Harry Pate, another store employee, that someone was leaving the store with a load of meat. Pate went after the person and returned with appellant after a few minutes. Melappana identified appellant as the person who left the store with a load of meat. Pate testified that after Melappana alerted him, he looked out of the store and spotted appellant putting a buggy near a car. Pate ordered him to halt, but appellant began running. Pate tackled appellant and brought him back to the store. At this point in the trial, the prosecutor asked Pate, “Was anything being said while you were going back?” Pate testified that appellant stated, “Come on, let me go. You got your meat and stuff.” At this point, defense counsel asked for a bench conference. Defense counsel objected that the State had violated discovery by making no mention of any oral statements of appellant in the State’s answer to appellant’s demand for discovery. Defense counsel claimed prejudice and moved for a mistrial. The trial court denied the motion for mistrial and allowed the testimony without making a Richardson inquiry. Pate continued his testimony, stating that appellant was the person he had apprehended that morning.

Officer Cofield testified that he placed appellant in the patrol car and went back into the Albertsons store, when he received word that appellant was breaking out of the patrol car. Cofield observed the back glass of his patrol car kicked out, and he pursued appellant into some woods behind the store and reapprehended him. The jury found appellant guilty on both counts, and he was sentenced to four years on the grand theft conviction and sixty days on the malicious mischief conviction.

The State’s non-compliance with discovery rules does not entitle a defendant to a mistrial as a matter of right. Richardson v. State, 246 So.2d 771 (Fla.1971). The trial court has discretion to determine whether the non-compliance resulted in harm or prejudice to the defendant. Id. However, Richardson states:

[T]he court’s discretion can be properly exercised only after the court has made an adequate inquiry into all of the surrounding circumstances. Without intending to limit the nature or scope of such inquiry, we think it would undoubtedly cover at least such questions as whether the state’s violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial.

246 So.2d 775 (quoting from Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970)). In the instant case, the trial court denied the motion for mistrial without making the inquiry required by Richardson.

Appellee argues that no discovery violation occurred because the State listed Harry Pate as a witness and appellant did not depose Pate. This contention is without merit. Rule 3.220(a)(l)(iii) clearly requires the State to reveal the substance of any oral statement made by the accused, and the State’s answer to demand for discovery clearly states that the defendant did not make any oral statements. Appellee also argues that no prejudice to appellant resulted from the violation. In essence, appellee asks this court to assume the role of the trial court, conduct a Richardson inquiry from a cold record on appeal, and make the determination of prejudice vel non which Richardson requires of the trial court. This we cannot do. Cumbie v. State, 345 So.2d 1061 (Fla.1977).

Although it may be in the instant case that if the trial court had made a Richardson inquiry it would have found no prejudice to appellant, the lack of such an inquiry is error. Further, the lack of a Richardson inquiry cannot be considered harmless error. Cumbie v. State, supra; Wendell v. State, 404 So.2d 1167 (Fla. 1st DCA 1981).

Accordingly, appellant’s convictions are reversed, the sentences vacated, and this cause is remanded for a new trial.

MILLS and ZEHMER, JJ., concur.


text:
    Aaron THREAT, Appellant, v. J. Carlisle ROGERS and Glenn Gentry, Appellees.
    No. AR-345.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.
    Irvin A. Meyers and Sherry L. Davis of Meyers & Mooney, Orlando, for appellant.
    Steven A. Rissman of Cooper & Rissman, Orlando, for appellees.
   PER CURIAM.

This cause is before us to review the order of the deputy commissioner vacating, within the 30-day period before it became final, a prior compensation order. We exercise our discretionary jurisdiction to review the order by certiorari, and affirm.

Claimant Aaron Threat injured his arm while pruning trees in a grove in Okahump-ka, Florida. An amended claim for benefits was filed, naming J. Carlisle Rogers and Glenn Gentry as employers. Because of an apparent miscommunication between counsel for Mr. Rogers and the deputy commissioner’s office, Mr. Rogers did not appear at the hearing held on the claim, subsequent to which the deputy issued his order, dated January 13, 1983, finding claimant entitled to TTD benefits, PTD benefits, and medical expenses, and awarding claimant’s attorney a fee under the “bad faith” provision of Section 440.34(3), Florida Statutes. Within the 30-day period before this order became final, Mr. Rogers’ attorney filed a motion to vacate the order, with supporting affidavits, asserting that Mr. Rogers’ failure to appear at the compensation hearing was the result of mis-communication and excusable neglect, and that Mr. Rogers had a meritorious defense to the claim for compensation, in that he does not own the grove property in question and never employed claimant. On February 4, 1983, the deputy entered an order granting the motion to vacate and setting aside his prior order.

Although the deputy commissioner has no authority to vacate an order which has become final, Farrell v. Amica Mutual Insurance Co., 361 So.2d 408 (Fla.1978), we hold that the deputy has the authority, within the period before the order becomes final, to correct errors arising from inadvertence, mistake, or excusable neglect, as in the case at issue. See, Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981), in which this court found such authority in Section 440.25(4)(a), Florida Statutes. See also, Morgan Yacht Corporation v. Edwards, 386 So.2d 883 (Fla. 1st DCA 1980), which found that Section 440.-33(1), Florida Statutes, authorized the deputy to rescind his approval of settlement stipulations upon a finding of fraud.

It is within the deputy’s discretion to determine whether the facts of a particular case constitute excusable neglect, mistake or inadvertence, so as to support a motion to vacate a compensation order. Appellants have not shown an abuse of discretion by the deputy; his order granting appellee’s motion to vacate the prior compensation order is therefore affirmed.

ROBERT P. SMITH, Jr., BOOTH and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge. ROBERT P. SMITH, Jr., Judge,

text:
    DREXEL PROPERTIES, INC. and Fred S. James & Company of Florida, Appellants, v. Robert P. BROWN, Appellee.
    No. AQ-392.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.
    Rehearing Denied Jan. 13, 1984.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellants/cross appellees.
    Stanley J. Narkier of Bernstein, Narkier, Monchick & Karp, P.A., West Palm Beach, for appellee/cross-appellant.
   WIGGINTON, Judge.

The posture and pertinent facts of this case are as set forth in Judge Robert Smith’s dissent and need not be expounded upon here. Grounded upon this court’s opinion in Threat v. Rogers, 443 So.2d 149 (Fla. 1st DCA 1983), the deputy commissioner s order of December 21, 1982 is AFFIRMED.

BOOTH, J., concurs.

ROBERT P. SMITH, Jr., J., dissents, with written opinion.

ROBERT P. SMITH, Jr., Judge,

dissenting:

Within the 30-day period before the deputy’s compensation order became final, § 440.25(4)(a), Fla.Stat. (1981), the employer filed a motion for rehearing and to vacate that order alleging:

For grounds, the Employer would show that the Claimant was less than truthful in sworn testimony; that the Deputy Commissioner erred in refusing to accept a WCC-4 as a notice to controvert; that the Deputy Commissioner erred in failing to find that the claimant has a greater earning capacity than the actual wages earned at Lake Hospital of the Palm Beaches; that the Deputy Commissioner erred in failing to find a deemed earning capacity between September 1981 and February 1982.

Also acting within the 30-day period, the deputy commissioner denied the motion in certain respects but set aside other portions of his order that were implicated by the alleged “less than truthful” testimony by claimant on the subject of his “earnings, job search, employment and unemployment compensation benefits.” At a later hearing the employer was permitted to introduce evidence impeaching claimant’s prior testimony and showing that claimant gave false and incomplete information in connection with his application for and receipt of unemployment compensation benefits. Reassessing claimant’s credibility, the deputy then entered the order now appealed, reducing but not eliminating certain benefits. The appellant employer now urges that we set aside all awards, and cross-appellant claimant urges that we restore the deputy’s original order because the rehearing procedure was unauthorized.

In my opinion neither Acosta Roofing Co. v. Gillyard, 402 So.2d 1321, 1132 (Fla. 1st DCA 1981), authorizing 30-day corrections of inadvertent errors in order to “discourage substantially groundless and unnecessary appeals” on matters that might readily be tended to below, nor Morgan Yacht Cory. v. Edwards, 386 So.2d 883 (Fla. 1st DCA 1980), authorizing rehearings for fraud in connection with settlement stipulations and their approval, extends to such a case as this. Conventional rehearings on substantial issues decided by a deputy are not authorized. Extraordinary rehearings out of time, in the nature of those available under civil Rule 1.540, have been disallowed in workers’ compensation cases. Farrell v. Amica Mutual Ins. Co., 361 So.2d 408 (Fla.1978).

While I am hard put to distinguish Morgan Yacht, there seemingly being little more reason to rehear settlement orders on account of fraud than to rehear disputed orders for fraud, I would not extend Morgan Yacht to this new class of orders. The perils of doing so are apparent in this case, in which the alleged fraud lay in representations made by claimant when applying for unemployment compensation, outside the workers’ compensation system, and also in testimony before the deputy that could and should have been prepared for and impeached when it was given, if at all.

Whether a deputy should be empowered to reopen an order for alleged fraud, or upon allegations that claimant (or an important witness for the employer) was previously “less than truthful,” is certainly a debatable issue. But absent authority in statutes or rules, I would not create this wide portal of attack upon settled orders. It is quite another thing to excuse a party’s excusable neglect to attend a hearing, Threat v. Rogers, 443 So.2d 149 (Fla. 1st DCA 1983), or to correct inadvertencies of the deputy in failing to rule upon submitted issues, in ruling on issues not submitted, or in uncontroversial details not affecting the merits previously disputed and settled. Cf. Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

I would reverse the modified order and reinstate the order previously and conventionally entered.


author: GRIMES, Judge.

text:
    Michael E. SALYERS, Appellant/Cross-Appellee, v. Martha A. GOOD, Appellee/Cross-Appellant.
    No. 83-992.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1983.
    Rehearing Denied Jan. 6, 1984.
    H.H. Baskin, Jr., P.A., of Baskin & Ben-nison, Clearwater, for appellant/cross-ap-pellee.
    Elihu H. Berman of Krug, Berman & Silverman, Clearwater, and Leon White-hurst, Jr., Clearwater, for appellee/cross-appellant.
   GRIMES, Judge.

In this postdissolution action, the husband appeals the denial of his motion for attorney’s fees, and the wife cross-appeals the order dismissing her complaint for partition.

Paragraph 7 of the parties’ property settlement agreement which was incorporated into the dissolution judgment of April 23, 1982, provided in part as follows:

[T]he Husband shall have the exclusive use and possession of the property [marital home] until such time as the same is sold. Upon the sale of the property, the Wife shall be entitled to forty percent (40%) of the net equity realized from the sale thereof less the following proceeds attributable to the contributions by the Husband during his tenancy therein:....

The balance of the paragraph spelled out the percentage of reimbursement to which the husband would be entitled for mortgage payments and other expenditures.

On March 10, 1983, the wife filed a complaint for partition of the marital home. The husband moved to dismiss for failure to state a cause of action and requested reasonable attorney’s fees pursuant to section 57.105, Florida Statutes (1981). The court dismissed the complaint with prejudice “for the reason that the wife is not entitled to immediate possession of the subject real property and therefore will be unable to amend her complaint for partition to state a cause of action.” The court denied the husband’s motion for attorney’s fees.

The argument pertaining to attorney’s fees centers on whether the complaint was frivolous. Because we have determined to sustain the wife’s position on cross-appeal, further discussion of this point would be superfluous.

The husband argues alternative positions to support the dismissal of the complaint for partition. First, he relies upon the supreme court’s decision in Tresher v. McElroy, 90 Fla. 372, 106 So. 79 (1925), for the proposition that without unity of possession, there can be no tenancy in common. Tresher was decided in another context and is not controlling. The marital home in the instant case was formerly owned by the parties as tenants by the entirety. Under the provisions of section 689.15, Florida Statutes (1981), when their marriage was dissolved, the parties became tenants in common.

The husband further argues that even if they are tenants in common, the wife has no right of partition at this time because her interest is burdened by the husband’s right of possession. Where one spouse has been awarded possession of the marital home as an incident of the other spouse’s obligation to support, the nonpos-sessing spouse cannot obtain partition until the other’s right to possession has terminated. Black v. Miller, 219 So.2d 106 (Fla. 3d DCA), cert. denied, 225 So.2d 920 (Fla.1969); Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947). The question here, however, is whether the settlement agreement as incorporated into the dissolution judgment gave the husband a continuing right of possession for as long as he wished.

We find this court’s previous decision in Hoemke v. Hoemke, 342 So.2d 127 (Fla. 2d DCA 1977), analogous. In that case, a final judgment of dissolution ordered the husband to pay child support and awarded the wife possession of the marital home “until such time as the same is sold.” The husband later conveyed to his parents his undivided one-half interest in the home. Twelve and one half months after the date of the dissolution judgment, the parents filed a complaint for partition. On the wife’s appeal from a judgment of partition, she contended that she was entitled to remain in possession of the home until the children reached majority, died, married or became self-supporting. In rejecting this argument and affirming partition, we said that “it is clear to us from a reading of the provisions of the final judgment set out above that the trial court intended to award possession of the premises to appellant only ‘until such time as the same is sold.’ ” Id. at 128.

We interpret paragraph 7 of the settlement agreement as contemplating that following the dissolution the parties would endeavor to sell the home at a mutually advantageous price and that during the interim the husband was entitled to possession. Upon the failure to effect an agreeable sale within a reasonable time, either party had a right to force a sale through partition. When the property is sold, the husband’s right to possession will terminate. We do not read the agreement as giving the husband the right to live in the home for the balance of his life by unilaterally refusing to sell. The ten and one half month period between the entry of the dissolution judgment and the date on which the complaint was filed constituted a reasonable period of time for the parties to try to sell the property.

Our view of the complaint makes it obvious that the wife’s position was not frivolous. Thus, the court properly denied the husband’s motion for attorney’s fees. We reverse the order dismissing the complaint and remand the case for further proceedings consistent with this opinion.

OTT, C.J., and BOARDMAN, J., concur.


author: NIMMONS, Judge. ERVIN, Chief Judge,

text:
    Leon Elmore POWE, Appellant, v. STATE of Florida, Appellee.
    No. AP-107.
    District Court of Appeal of Florida, First District.
    Dec. 9, 1983.
    Rehearing Denied Jan. 20, 1984.

      Michael Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Powe appeals from a drug trafficking conviction. He claims that the trial court erred in admitting, over objection, tape recordings of four telephone conversations between the defendant and one Robert Levesque, an informant who was participating with law enforcement officials in an undercover drug investigation. We affirm after considering this case en banc pursuant to Fla.R.App.P. 9.331(a) and (b).

Two of the calls were placed on October 8, 1980, by Levesque to Powe at his home in Miami. The next day, Powe telephoned Levesque and advised him that he was in Jacksonville prepared to do business. This call was not monitored or recorded by the detectives and is, therefore, not in dispute. After advising the lead detective of Powe’s call, Levesque placed the other two disputed telephone calls on October 9, 1980, to Powe at the latter’s motel room.

In addition to the tape recordings of the four conversations being received in evidence, Levesque testified at trial concerning such conversations and stated that the conversations were monitored and recorded with his consent. The trial court also admitted, over objection, Officer Prescott’s testimony in which he related the contents of the October 8, 1980, conversations which he overheard with Levesque’s consent.

Powe does not contend that the monitoring and recording of these calls without a court order were violative of Chapter 934, Florida Statutes, inasmuch as Section 934.-03(2)(c) purports to excuse any Chapter 934 authorization order under these circumstances:

It is lawful under this Chapter for a law enforcement officer or person acting under the direction of a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

Instead, Powe’s objections were based upon Article I, Section 12, of the Florida Constitution. That section, prior to its amendment effective January 4, 1983, provided in pertinent part:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means shall not be violated.
Articles or information obtained in violation of this right shall not be admissible in evidence, (emphasis supplied)

Powe relies upon State v. Sarmiento, 397 So.2d 643 (Fla.1981), and this Court’s opinion in Williams v. State, 420 So.2d 404 (Fla. 1st DCA 1982), in which the majority per Judge Shaw extended the Supreme Court’s holding in Sarmiento. In Williams, the majority observed:

In State v. Sarmiento, 397 So.2d 643 (Fla.1981), the defendant and undercover agent were in the defendant’s home when their conversation was transmitted outside the home by means of a “body bug” to police officers who monitored and recorded the conversation. The court held that the undercover agent could testify as to the contents of the conversation, but the police officers who monitored and recorded the conversation from outside the home could not testify as to the conversation, nor could the recording be introduced. Our reading of Sarmiento and of article I, section 12 is that they protect the person within the home and that this protection is not predicated on the physical location of the person who consents to the recording of the conversation. It matters not whether the consenting party is outside of the home, nor whether the means used to penetrate the privacy of the home is a “body bug, as in Sarmiento, or a telephone, as here. A “body bug” and a telephone are electronic devices which, by transmitting the human voice beyond the confines of the home, provide the means to intrude into the home. Both fall within the phrase “by any means” in article I, section 12. In our view, Sar-miento is dispositive of all the issues posed here: the warrantless recordings of the telephone conversations from within the home must be suppressed, the warrantless recordings of the person-to-person conversations outside the home may be admitted; the police informant may testify as to the contents of all the conversations; and the fruits of all the conversations may be admitted. [420 So.2d at 405] [emphasis supplied]

We feel compelled to recede from the majority’s holding in Williams. It is one thing to hold, as in Sarmiento, that the Article I, Section 12, right of privacy is violated where a “bugged” police informant conversing with a suspect inside the latter’s residence transmits their conversation to nearby surveilling law enforcement officers. It is, we think, quite another to hold that privacy rights under the above Florida Constitutional provision should be construed to encompass telephone conversations between a person in his residence and agents of law enforcement officials situated away from such premises. Even if the appellant in this case subjectively expected that his telephone conversation would be regarded as private and not divulged to others, such expectation, in order to fall within the protection of Article I, Section 12, must be one which society reasonably can be expected to recognize. Compare State v. Rickard, 420 So.2d 303, 306 (Fla.1982). We are of the view that a person who chooses to converse with another person located outside his home does so at risk that such other person may be a law enforcement officer or a consenting agent of the officer and that the contents of his incriminating conversations will be admissible in evidence. The majority’s mistake in Williams centers around the following expressed premise:

It matters not whether the consenting party is outside of the home, nor whether the means used to penetrate the privacy of the home is a “body bug,” as in Sarmiento, or a telephone, as here. [420 So.2d at 405]

To the contrary, we think there is a significant difference in terms of the reasonableness of a person’s privacy expectations between the situation involving conversations within the person’s home and the situation where the person chooses to converse with another who has not been admitted into the sanctity of the home. We agree with our sister court in Miller v. State, 411 So.2d 944, 946 (Fla. 4th DCA 1982):

Sarmiento is inapplicable in a situation where one of the parties to a telephone conversation is located outside the person’s home and is acting pursuant to Section 934.03(2)(c), Florida Statutes (1979).

See also State v. Vanyo, 417 So.2d 1104 (Fla. 4th DCA 1982).

Powe cán find no comfort in the pre-Sarmiento Florida Supreme Court decision of Tollett v. State, 272 So.2d 490 (Fla.1973). There, the monitoring officers testified that the telephone conversations between Toilet and the undercover agent were monitored with the consent of the agent. A sharply divided Supreme Court held that the testimony of the officers concerning such conversations must be suppressed under Article I, Section 12. However, the opinion clearly reflects that the reason for its ruling was because of the fact that the undercover agent did not testify at trial, the court holding that the officers’ testimony that the agent had consented to the monitoring of the calls was inadmissible. Stated Justice Ervin for the court:

Davis [the undercover agent] was not present as a witness. No explanation appears in the record as to why Davis was not called by the State as a witness or any reason given for his unavailability. [272 So.2d at 492]
Under the language of Section 12 of Article I of the 1968 Constitution, the recordings should not have been made by the officer unless he had first obtained an interception warrant, or had secured consent from one of the parties to the communication and established this fact under the safeguards and conditions hereinafter noted. Such a requirement for a search warrant absent clearly established consent is neither unfair nor impractical. [272 So.2d 493]

As previously noted in this opinion, Levesque was present and testified at trial regarding the telephone conversations, and it was clearly established that they were monitored with his consent.

Although the Florida Supreme Court has not directly addressed the issue regarding the possible extension of its Sarmiento holding to telephone conversations as in the case sub judice, we are persuaded by a reading of the Sarmiento opinion and the post-Sarmiento expressions of the Florida Supreme Court that the overly broad construction of Article I, Section 12, urged by appellant and embraced by the majority in Williams v. State, supra, is not justified. In Sarmiento, the court stated:

Our colleague in dissent contends vigorously that the Florida Legislature recognizes the right of a police officer to intercept an oral communication when such person is a party to the conversation or where one of the parties to the communication has given prior consent to the interception. § 934.03(2)(c), Fla.Stat. (1977). Our response to this contention is simple; insofar as that statute authorizes the warrantless interception of a private conversation conducted in the home, it is unconstitutional and unenforceable. [emphasis in original]

Later, in Hill v. State, 422 So.2d 816, 818 (Fla.1982), the Court had this to say about the limitations of its holding in Sarmiento:

The instant case is, however, distinguishable from Sarmiento because the instant tape recording was a conversation which occurred in appellant’s backyard, not in the home. We refuse to extend the reasoning in Sarmiento and the protections of article I, section 12, beyond the four walls of the home. We note Odom v. State, 403 So.2d 936 (Fla. 1981), is also distinguishable from our holding in the instant case because that interception was in the home.

We, therefore, recede from the majority’s opinion in Williams v. State, supra, and hold that the trial court did not err in receiving in evidence the tape recording of the two October 8, 1980, telephone conversations resulting from Levesque’s calls to appellant at the latter’s home. We also hold that it was not error to receive Officer Prescott’s testimony relating those two conversations.

With respect to the two October 9, 1980, telephone conversations between Levesque and appellant while the latter was situated in a Jacksonville motel room, the trial court did not err in receiving in evidence the tape recordings of those conversations. We have previously held that a motel room is not the functional equivalent of a home insofar as the applicability of the Sarmiento ruling. Padgett v. State, 404 So.2d 151 (Fla. 1st DCA 1981), accord Miller v. State, 411 So.2d 944 (Fla. 4th DCA 1982).

We have examined the remaining points asserted by appellant and find them to be without merit.

AFFIRMED.

MILLS, ROBERT P. SMITH, Jr., BOOTH, LARRY G. SMITH, SHIVERS, WENTWORTH, JOANOS, THOMPSON, WIGGINTON and ZEHMER, JJ., concur.

ERVIN, C.J., specially concurs.

ERVIN, Chief Judge,

specially concurring.

I was in the process of preparing a dissent to the court’s opinion when the Florida Supreme Court’s decision in State v. Williams, 443 So.2d 952 (Fla.1983), was brought to my attention. As the views expressed in the Powe opinion have now been generally vindicated by State v. Williams, quashing our holding in Williams v. State, 420 So.2d 404 (Fla. 1st DCA 1982), I now concur in the result reached.

      . The amendment to Article I, Section 12, provides for that section to be construed, in conformity with the Fourth Amendment as interpreted by the United States Supreme Court. It further provides that evidence acquired in violation of that section shall be inadmissible if such evidence would be inadmissible under United States Supreme Court decisions construing the Fourth Amendment. The State argues that we should apply the amendment retroactively to the case at bar. However, the Florida Supreme Court recently determined the retroactivity question adversely to the State. State v. Lavazzoli, 434 So.2d 321 (Fla.1983).

      . Even this "intrusion” is not deemed a violation of a person’s Fourth Amendment reasonable expectation of privacy. See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1970); United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). The rationale, in part, is that the Fourth Amendment does not protect a person from the possibility that one in whom he confides will violate that confidence. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1976); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Odom v. State, 403 So.2d 936, 939 (Fla.1981).


author: MILLS, Judge.

text:
    Joseph G. ROUKOUS, Appellant, v. ESTATE OF Ruby J. KERNAN, Deceased, et al., Appellees.
    No. AR-444.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.
    Edward A. White, Jacksonville, for appellant.
    Lloyd T. Asbury of O’Donnell & Asbury, Jacksonville, for appellees.
   MILLS, Judge.

Roukous appeals from a final judgment which denied his $38,272 claim against the Estate because it was barred by the two-year statute of limitations. We affirm.

From 1970 to 1977, Roukous rendered a variety of personal services to the elderly Mrs. Kernan including acting as her driver, caring for her home, doing her shopping, seeing that her bills were paid, and acting as a general handyman. There was no agreement between Roukous and Mrs. Ker-nan that he would be compensated for these services.

In 1978, Mrs. Kernan received a visit from her daughter, Mrs. Frances Waugh. While there, Mrs. Waugh showed Mrs. Ker-nan’s will to Roukous. It contained a $35,-000 bequest to him, and it was his understanding that this bequest was to compensate him for all his years of service to Mrs. Kernan.

Mrs. Waugh allegedly told Roukous that Mrs. Kernan intended to make a new will and that he would not be a beneficiary under that will. She also allegedly told Roukous that he should make up a bill for his services and have it approved by Mrs. Kernan.

Roukous complied and presented a bill for $38,272 to Mrs. Kernan on 3 May 1978. She wrote “O.K. Ruby J. Kernan” at the bottom of the statement, but no payment was made on this debt.

Roukous filed a claim against the Estate which the trial court ultimately denied on authority of Broward Builders Exchange, Inc. v. Goehring, 231 So.2d 513 (Fla.1970).

We agree with the trial court and hold that this was a claim for wages which was barred by the two-year statute of limitations codified in Section 95.11(4)(c), Florida Statutes (1981). Goehring, id.; Buenger v. Kennedy, 151 So.2d 463 (Fla. 2d DCA 1963); Keel v. Brown, 162 So.2d 321 (Fla. 2d DCA 1964); Jones v. Lummus, 359 So.2d 538 (Fla. 3d DCA 1978).

Although this decision conflicts with Schenkel v. Atlantic National Bank of Jacksonville, 141 So.2d 327 (Fla. 1st DCA 1962), Schenkel was indirectly overruled by the Supreme Court in Broward Builders Exchange, supra, when it disapproved the holding in Goehring v. Broward Builders Exchange, Inc., 222 So.2d 801 (Fla. 4th DCA 1969), and by implication adopted the holding in Buenger, supra.

Roukous argues that even if his claim was barred by the statute of limitations, Mrs. Kernan’s acknowledgment of the debt on 3 May 1978 acted to revive the claim. We do not agree. As the parties have agreed, this cause of action accrued when Mrs. Kernan signed the statement. Until that time, there was no debt because there was never an employer-employee relationship between Mrs. Kernan and Roukous during the period in which the services were rendered. Mrs. Kernan’s signature on the statement could not act to “revive” a previously nonexisting debt.

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


text:
    Dorothy Lyles WILSON, as personal representative of the Estate of Joann Lyles Ratliff, deceased, Appellant, v. CHARTER MARKETING COMPANY, a Florida corporation, Appellee.
    No. AS-9.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.

      Marshall D. Davis of Liptak & Davis, P.A., and Law Offices of Brent M. Turbow, Jacksonville, for appellant.
    Wm. M. Howell of Howell, Liles, Braddock & Milton, Jacksonville, for appellee.
   MILLS, Judge.

Wilson, as personal representative of the Estate of Joan Lyles Ratliff, brought suit against Charter Marketing Company alleging negligence in the design and operation of one of its self-service gasoline stations located in Jacksonville. Ratliff was killed in an automobile accident which occurred at the station.

Wilson filed a request for production of documents, requesting “all accident reports or incident reports regarding injuries to employees and/or customers at any Charter Gas Station ... for a period of five years prior to August 12, 1979.” Charter owned over 400 service stations, and its objection to this request on the ground that it was too broad was sustained by the trial court.

Wilson also served a set of interrogatories on Charter, one of which asked whether any accidents similar to the one alleged in the complaint had occurred at any of its service stations. Charter responded that two such accidents had occurred, and it provided reports of those accidents to Wilson.

Arguing at trial that this accident was not reasonably foreseeable, Charter emphasized the low number of accidents similar to the one alleged in the complaint which had occurred at its stations. The jury rendered a verdict for Charter, and judgment was entered accordingly.

After judgment had been entered, Wilson discovered reports of five accidents which she alleged should have been disclosed pursuant to her interrogatory. She moved for a new trial pursuant to Rule 1.540(b)(3), Florida Rules of Civil Procedure, alleging fraud, misrepresentation, or other misconduct on the part of Charter. This appeal followed the denial of that motion.

Wilson first contends that the trial court erred in sustaining Charter’s objections to her request for production of documents. The production of these documents allegedly would have aided Wilson in effectively cross-examining one of Charter’s expert witnesses. However, the trial court possesses broad discretion in granting or refusing such a discovery motion, and we find no abuse of discretion here. Orlowitz v. Orlowitz, 199 So.2d 97 (Fla.1967).

Citing the analogous Federal Rule of Civil Procedure, Rule 60(b)(3), and Rozier v. Ford Motor Company, 573 F.2d 1332 (5th Cir.1978), Wilson further contends that Charter’s failure to disclose the additional five accident reports warranted a new trial. Charter concedes that one of these reports should have been made available for discovery but asserts that it was somehow overlooked.

There are no Florida cases dealing with this issue. However, “[bjecause the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent and operative effect of various provisions of the rules.” Wilson v. Clark, 414 So.2d 526, 531 (Fla. 1st DCA 1982). In order to be successful under a Federal Rule 60(b)(3) motion, the moving party must establish by clear and convincing evidence that the verdict was obtained through fraud, misrepresentation, or other misconduct and that the conduct complained of prevented the losing party from fully and fairly presenting his case or defense. Bunch v. United States, 680 F.2d 1271 (9th Cir.1982). Even assuming that Charter’s conduct here was fraudulent or otherwise wrongful, we are convinced that Wilson was not prevented from fully and fairly presenting her case. The additional reports concerned accidents which were so remote in time, place, and similarity that they would have been inadmissible at trial. Therefore, Wilson was not prejudiced by Charter’s failure to disclose the existence of these reports.

AFFIRMED.

THOMPSON and WIGGINTON, JJ., concur.


author: THOMPSON, Judge.

text:
    GREYHOUND LINES, INC., Appellant, v. DEPARTMENT OF BANKING AND FINANCE, Appellee.
    No. AS-363.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.
    John H. Wilbur of Wilbur & Allen, Jacksonville, for appellant.
    Thomas L. Barnhart, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Greyhound Lines, Inc. (Greyhound) appeals a final order of the Department of Banking & Finance (Department) allowing Greyhound, inter alia, a pro rata refund of 35 percent of the § 323.15(l)(a), Fla.Stat. (1979) road taxes it paid for the 1980 tax year instead of allowing Greyhound a pro rata refund of 100 percent of such road taxes. Greyhound argues it is entitled to a pro rata refund of 100 percent of the § 323.15(l)(a) road taxes it paid for the 1980 tax year instead of a pro rata refund of only that portion of the road tax credited to the Florida Public Service Regulatory Trust Fund. We reverse.

Prior to June 30, 1980, Greyhound operated as a motor carrier throughout the State of Florida and was regulated by the Florida Public Service Commission (PSC) pursuant to Chapter 323, Florida Statutes. Greyhound was required to pay, on or before January 31 of each year, a $100 road tax for each bus engaged in intrastate services and having a capacity of more than 21 passengers. See § 323.15(l)(a), Fla.Stat. For the 1980 tax year Greyhound paid a total of $144,700 in road taxes. Section 323.16, Florida Statutes, required the PSC to keep a separate account of all moneys collected under § 323.15, and required that said moneys be placed in the State Treasury to be credited as follows:

(1) Thirty-five percent of such funds shall be deposited in the Florida Public Service Regulatory Trust Fund, as created by s. 350.78, for use by the commission in the administration of this part.
(2) Two percent of such funds shall be credited to the Revenue Sharing Trust Fund for Municipalities.
(3) The remainder of such fund shall be placed in the State Treasury to the credit of the Revenue Sharing Trust Fund for Counties, subject to distribution as provided in this act.

The 1980 legislature allowed Chapter 323 to “Sunset,” effective July 1, 1980, by failing to reenact this chapter. Greyhound filed a request for a refund of road taxes paid for the 1980 tax year. See § 215.-26(2), Fla.Stat. The Office of the Comptroller of the State of Florida issued a Notice of Intent to Deny Refund. After an administrative hearing, a hearing officer recommended that Greyhound be refunded seven-twelfths, representing the period from July 1, 1980, the date Chapter 323 was effectively repealed, through January 31, 1981, of 35 percent of the road taxes it paid for the 1980 tax year. The Department essentially adopted this recommendation.

Greyhound takes the position that it is entitled to a refund of seven-twelfths of 100 percent of the 1980 road taxes pursuant to § 215.26(1), Fla.Stat., which provides:

The Comptroller of the state may refund to the person who paid same, or his heirs, personal representatives or assigns, any moneys paid into the State Treasury which constitute:
(a) An overpayment of any tax, license or account due;
(b) A payment where no tax, license or account is due; and
(c)Any payment made into the State Treasury in error;
and if any such payment has been credited to an appropriation, such appropriation shall at the time of making any such refund, be charged therewith. There are appropriated from the proper respective funds from time to time such sums as may be necessary for such refunds.

The Department argues that by complying with § 323.15 and paying road taxes for the 1980 tax year Greyhound neither made a payment where none was due nor made a payment in error. According to the Department, Greyhound made an overpayment relative to the moneys deposited into the Florida Public Service Regulatory Trust Fund, because these moneys, which were intended to defray the administrative and regulatory costs of enforcing the motor carrier provisions of Chapter 323, were no longer needed by the PSC after repeal of Chapter 323 since the PSC no longer had administrative and regulatory duties under Chapter 323 subsequent to its repeal. However, the Department concludes that Greyhound did not make an overpayment relative to the moneys deposited into the municipal and county trust funds, because these moneys, which were for construction, maintenance, and use of Florida’s public highways for an entire year and which were not related to the PSC’s administrative and enforcement responsibilities under Chapter 323, were not dependent upon the existence of motor carrier regulations during the entire tax year.

The Department’s position that the amount of Greyhound’s refund is dependent on the nature of the funds into which the moneys were placed is not tenable, especially in light of the evidence presented below that the 1980 fourth quarter receipts from the § 323.15 road taxes were not distributed “pending a legal determination regarding motor carrier requests for refunds of fees and taxes for the calendar year 1980.” There was no statutory authority for the imposition of the road tax for the last seven months of the 1980 fiscal year. The language of the refund provision, § 215.26, does not indicate that entitlement to a refund is dependent on the nature of the appropriation to which the payment was credited. Indeed, § 215.26(1) specifically indicates that if an appropriation has been credited with the sum which is to be refunded under that subsection, the appropriation is to be charged with the amount of the refund.

The order of the Department is reversed and the cause is remanded with directions that the Department enter an order allowing Greyhound a pro rata refund of 100 percent of the road taxes it paid for the 1980 tax year.

MILLS and WIGGINTON, JJ., concur.


text:
    James SEWELL, Appellant, v. STATE of Florida, Appellee.
    No. AT-64.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.
    Robert G. Kerrigan of Kerrigan, Estess & Rankin, Pensacola, for appellant.
    Jim Smith, Atty. Gen., Wallace Allbrit-ton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Sewell appeals an order of the trial court finding him guilty of direct criminal contempt for failure to appear at the time set by the court for the commencement of a trial. He contends there is no evidence that he intended to interfere with the functioning of the court. We agree and reverse.

Sewell is an assistant public defender and was before Judge Gordon on 18 April 1983 representing a defendant during jury selection. After selection, the judge announced that trial would begin at 8:30 a.m. on 20 April 1983.

At 8:30 a.m. on 20 April, neither Sewell nor the prosecutor was in the courtroom. Both were summoned to the courtroom and the trial began. After the judge declared a mistrial, he asked both the prosecutor (who was not present on 18 April when the court announced the 8:30 a.m. starting time) and Sewell to show cause why they should not be held in contempt for showing up late.

The prosecutor stated that he was not informed by the prosecutor who was present at the jury selection that trial would start at 8:30. He said he assumed the trial would begin at 9:00 a.m. because all other eases he had handled began at 9:00 a.m. Sewell said he did not hear the court announce the 8:30 a.m. starting time and also assumed that trial would start at 9:00 a.m. He apologized for being late.

The judge did not hold the prosecutor in contempt because the court was not sure whether he knew of the starting time. The judge did hold Sewell in contempt and assessed a $25.00 fine. The next day the judge suspended the $25.00 fine.

Sewell appealed on 20 May 1983 and on 24 May 1983 the judge filed a Judgment of Contempt and Sentence Nunc Pro Tunc finding Sewell guilty of direct criminal contempt. This judgment found that it was not certain whether Sewell was in the courtroom when the announcement of the starting time was made, however, if he was not in the courtroom he left without the court’s permission. The judgment also contained a finding that the court had warned Sewell several times before 20 April about being late for court.

Sewell filed an affidavit on 8 June 1983 asserting the judge had never warned him about being late before 20 April. The affidavit was stricken from the record on appeal following the State’s motion to strike.

Criminal contempt requires some willful act or omission calculated to hinder the orderly functions of the court. Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977).

The record, including the judge’s findings of fact, doesn’t show that Sewell was intentionally late for court. Both Se-well and the prosecutor told the court that proceedings usually begin at 9:00 a.m. so they assumed the trial on April 20 would also start at 9 a.m. Sewell was not dilatory. He apologized to the court for being late.

The State’s assertion that “a disclaimer of intent to be contemptuous is not sufficient to deprive a trial judge of the power to punish contempt” is true, but only if a finding of intent is supported by the facts. The judge’s finding he had warned Sewell about being late several times before should not be used to show willfulness because there is no proof of these prior warnings.

The trial court abused its discretion and must be reversed.

THOMPSON and WIGGINTON, JJ., concur.'


author: ERVIN, Chief Judge.

text:
    HOME INSURANCE COMPANY and North River Insurance Company as Subrogees For Athlone Industries, Inc., Petitioners, v. ADVANCE MACHINE COMPANY, Respondent.
    No. AV-55.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.

      J-. Craig Knox of Fuller & Johnson, P.A., Tallahassee, for petitioners.
    Thomas J. Jones of Holland & Knight, Tallahassee, for respondent.
   ON PETITION FOR WRIT OF CERTIORARI

ERVIN, Chief Judge.

By petition for writ of certiorari, petitioners seek review of an interlocutory discovery order denying, in part, their motion to quash a notice of deposition and for protective order. Finding that the order departs from the essential requirements of law and may cause material injury not remediable by direct appeal, we grant the petition and quash, in part, the trial court’s order.

This case arose in 1979 when a personal injury action was brought on behalf of a minor plaintiff who was seriously injured by a malfunctioning electric pitching machine. Named as defendants were the city of Calloway; Commercial Mechanisms, Inc., the original manufacturer; Athlone Industries, Inc., a distributor; and Advance Machine Company (Advance), the successor corporation to Commercial Mechanisms. During trial, plaintiffs announced that a settlement of $1,100,000.00 had been reached with Athlone. The settlement resulted in dismissal, with prejudice, of all claims the plaintiffs had asserted against all defendants. Home Insurance Company and North River Insurance Company, as subrogees for Athlone, then brought a contribution action against the remaining co-defendants.

Pursuant to its discovery in the contribution action, Advance served notice of taking depositions, and requested that representatives of the two insurers appear and answer questions on five subjects, including the following categories:

c) The reasonableness and good faith of the $1,100,000.00 payment by plaintiffs to Myron Johnson, a minor, and Betty S. Barcia, individually, for the damage claims as alleged in paragraphs 6 and 7 of the Complaint for Contribution.
d) Athlone Industries, Inc.’s share of the liability for the injuries to Myron Johnson as alleged in Exhibit A to the Complaint for Contribution, both as to the amount or percentage of liability and the method of calculation.
e) The identity of persons employed by or associated with plaintiffs and Athlone Industries, Inc., who participated in and/or approved the $1,100,000.00 settlement as alleged in the Complaint for Contribution.

The insurers then moved to quash the notice of deposition, and sought a protective order contending, among other things, that inquiry into the subject matter outlined in categories (c), (d) and (e) would violate the attorney-client privilege. The trial court granted in part the motion for protective order but, finding that “Plaintiffs have waived their attorney-client privilege by bringing this action for contribution”, denied the motion insofar as it sought to preclude discovery as to categories (c), (d) and (e), and directed the insurers to designate representatives to testify as to those subjects.

The insurers seek review of that portion of the order which found they had waived the attorney-client privilege by simply bringing an action for contribution in which they alleged the settlement was reasonable, contending that the court’s ruling departs from the essential requirements of law and results in irreparable harm. We agree.

The Florida Legislature adopted in 1975 the Uniform Contribution Among Tort-feasors Act, thus creating a statutory right of action for contribution. Section 768.31, Florida Statutes, provides that contribution may be had under the following circumstances:

(2) RIGHT TO CONTRIBUTION.—
(a) Except as otherwise provided in this act, when two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
* * * * * *
(d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement or in respect to any amount paid in a settlement which is in excess of what was reasonable.

(e.s.)

Advance successfully argued below that by simply bringing an action for contribution and injecting the requisite element of “reasonableness" of the settlement into issue, the insurers had effectively waived their attorney-client privilege insofar as such issue was concerned; therefore it was entitled to full discovery into that issue. Although it is the rule in Florida that a party who bases a claim on matters which would be privileged, the proof of which will necessitate the introduction of privileged matter into evidence, and then attempts to raise the privilege so as to thwart discovery, may be deemed to have waived that privilege, see Savino v. Luciano, 92 So.2d 817, 819 (Fla.1957), the general and we think controlling rule is that the attorney-client privilege is not “waived by bringing or defending a suit.” Burlington Industries v. Exxon Corporation, 65 F.R.D. 26, 35 (D.Md.1974). The attorney-client privilege is of course “designed precisely to enable people to bring and defend lawsuits. Consequently, if the mere bringing of a lawsuit waived the privilege, it would have little meaningful existence.” Connell v. Bernstein-Macaulay, Inc., 407 F.Supp. 420, 422 (S.D.N.Y.1976).

As evidenced by Savino, exceptions to the general rule have been applied where the party seeking to avoid discovery has injected into the litigation issues going to the very heart of the litigation. See Hearn v. Rhay, 68 F.R.D. 574 (E.D.Wash. 1975); Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444 (S.D.Fla.1980). We do not consider, however, that a party’s simple allegation in a contribution action that a settlement was reasonable, made in compliance with the statute, takes the case out of the general rule that the mere bringing of an action cannot be said to have waived the attorney-client privilege. As we determine that the trial court’s ruling departs from the essential requirements of law, we grant the petition for certiorari and quash that portion of the order holding that petitioners waived the attorney-client privilege by merely bringing an action for contribution.

Petitioners also contend that Advance should be precluded from any discovery relating to the subject matter in categories (c), (d) and (e) of the notice of deposition because the issue of reasonableness of the settlement is to be determined by the trier of fact on the basis of objective factors only. To the contrary, however, we find that the case law on the subject refutes this position. It is true that the “test as to whether the settlement is reasonable and prudent is what a reasonably prudent person in the position of the defendant would have settled for on the merits of plaintiff’s claim”, Miller v. Shugart, 316 N.W.2d 729, 735 (Minn.1982), and that certain objective factors may properly be considered in making that determination, including the extent of the plaintiff’s injuries, his past, present and future medical expenses, his age and his ability to work. Stevens v. East-West Towing Company, Inc., 470 F.Supp. 484, 488-489 (E.D.La. 1979). At the same time, certain subjective factors may also be appropriately considered, including the degree of certainty of the tortfeasor’s subjection to liability, the risks of going to trial and the chances that a jury verdict may exceed the settlement offer. Miller, 316 N.W.2d at 735; Stevens, 470 F.Supp. at 489. In rejecting petitioner’s contention that only objective factors are to be considered, thereby precluding the necessity for discovery in this case, we are persuaded by the somewhat unique procedural aspects of an action for contribution.

The contribution claimant must, of course, plead and prove that the contribution defendant is jointly negligent, see Beaches Hospital v. Lee, 384 So.2d 234 (Fla. 1st DCA 1980), as well as the fact that the settlement amount was not in excess of what is reasonable. The general rule, nevertheless, is that a prima facie case is made if the claimant establishes common liability and introduces proof of the fact of and the amount of the settlement reached. See 18 Am.Jur.2d Contribution § 107 (1965); Consolidated Coach Corporation v. Burge, 245 Ky. 631, 54 S.W.2d 16 (1932). The burden then shifts to the defendant to show, if possible,

the nonexistence of any fact essential or necessary to establish that he was liable at the time to the injured person, or he may show that the amount paid by the claimant in settlement was not paid in good faith or was unreasonable or excessive.

18 Am.Jur.2d Contribution § 107 at 145 (1965) (e.s.). See also Burge, 54 S.W.2d at 18; Traveler’s Insurance Company v. United States, 283 F.Supp. 14, 31 (S.D.Tex. 1968). If the defendant is successful in showing the amount paid in settlement was unreasonable or excessive, his liability for contribution will be reduced to a pro rata share of that amount which would in the jury’s mind be determined reasonable. Young v. Steinberg, 53 N.J. 252, 250 A.2d 13, 14-15 (1969).

In that both objective and subjective factors are to be considered in deciding the reasonableness of a settlement, along with the burden placed on the contribution defendant to show, if he can, that the settlement exceeded a reasonable amount, we cannot say that discovery of matters set out in categories (c), (d) and (e) of the deposition notice must necessarily be precluded. Indeed, petitioners have conceded in their motion for protective order that some of the information sought may fall outside the ambit of the attorney-client privilege, while other information may come within it. As stated in Young, Stern & Tannenbaum, P.A. v. Smith, 416 So.2d 4, 5 (Fla. 3d DCA 1982): “Only those communications which actually fall under the attorney/client privilege are protected.” (e.s.) See also Section 90.502, Florida Statutes (1981). We therefore reject petitioners’ suggestion that their motion for protective order should have been granted in its entirety.

To summarize, we hold that portion of the trial court’s, order finding that petitioners have waived their attorney-client privilege entirely by simply bringing an action for contribution is a departure from the essential requirements of law, and therefore grant the petition for certiorari and quash that portion of the order. We reject, however, petitioners’ contention that discovery into matters set out in categories (c), (d) and (e) of the notice of deposition must be totally precluded on the theory that objective factors only are to be considered in determining the reasonableness of the settlement. Although at this juncture we decline to quash the remaining portions of paragraph 3 of the order which direct petitioners to designate representatives to testify as to the matters in categories (c), (d) and (e) of the notice, we do so without prejudice to petitioners’ right to seek a protective order or raise the attorney-client privilege during deposition should specific communications and information be shown to fall within that privilege.

Petition for writ of certiorari is GRANTED and paragraph 3 of the order is QUASHED in part, and the cause is remanded for further proceedings consistent with this opinion.

THOMPSON and NIMMONS, JJ., concur.


text:
    U.S. FIRE INSURANCE COMPANY, Petitioner, v. William Glenn FRANKO and Bobbie Jean Franko, Respondents.
    No. AV-245.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.
    Rehearing Denied Jan. 9, 1984.

      Larry Hill, of Sherrill, Moore, Hill & Westmoreland, Pensacola, for petitioner.
    Samuel W. Bearman, of Cetti, McGraw, Bearman & Eddins, Pensacola, for respondents.
   SHIVERS, Judge.

U.S. Eire Insurance Company (U.S. Fire) petitions for writ of certiorari to review a non-final order of the trial court which denies petitioner’s motion to dismiss the Frankos’ complaint. The trial court found that petitioner had waived its right to demand arbitration and denied the motion to dismiss. We agree with petitioner that the trial court departed from essential requirements of law in denying the motion to dismiss.

On or about October 24, 1982, the Fran-kos’ dwelling was damaged by fire. Although U.S. Fire was promptly notified of the loss, a proof of loss form was not sent to the Frankos by petitioner until March of 1983. On April 22, 1983, the Frankos sent U.S. Fire an appraisal indicating the cost of repair to the dwelling to be $35,444.96. On June 14, 1983, U.S. Fire sent to the Fran-kos’ counsel an appraisal indicating the cost of repair to the damaged dwelling to be $19,116.26. U.S. Fire offered to settle for the amount of its appraisal. On July 5, 1983, U.S. Fire received a letter from the Frankos’ attorney advising that suit had been filed, rejecting petitioner’s offer of settlement, and informing U.S. Fire of the amount due the mortgagees under the terms of the mortgage lien on the property in question. Suit had been filed by respondents on June 22, 1983, but petitioner was not served until after it received the letter on July 5, 1983. On July 7, 1983, Mark Green, Claims Manager of petitioner, called respondents’ counsel advising that U.S. Fire would not waive its right to have the dispute settled by appraisal (arbitration).

Petitioner filed its motion to dismiss respondents’ complaint on July 20,1983. The motion alleges that arbitration is required by the contract between the parties as a condition precedent to a suit against U.S. Fire. The trial court denied the motion on the ground that U.S. Fire had waived its right to demand arbitration because U.S. Fire was dilatory in failing to provide the Frankos with a proof of loss form in due time following the loss. The trial court also found that the disparity between the appraisal submitted by U.S. Fire and the one submitted by the Frankos was tantamount to a rejection of the Frankos’ appraisal. Further, the trial court found that it was not clear whether a formal demand for arbitration had ever been made. This petition for review followed.

The arbitration agreement in the insurance contract between the parties reads as follows:

8. Appraisal. If you and we fail to agree on the amount of loss, either can demand that the amount of the loss shall be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, independent appraiser and notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select a competent, impartial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state of the Described Location to select an umpire. The appraisers shall then set the amount of the loss. If the appraisers submit a written report of agreement to us, the amount agreed upon shall be the amount of the loss. If the appraisers fail to agree within a reasonable period of time, they shall submit their differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss. Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be paid equally by you and us.

Generally, arbitration agreements are favored in the law. Arrieta v. Volkswagen Insurance Company, 343 So.2d 918 (Fla. 3d DCA 1977); see Chapter 682, Florida Statutes (1981) (Florida Arbitration Code). Implied waiver of the right to arbitration occurs only when a party engages in conduct which is inconsistent with that right. Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 412 So.2d 871 (Fla. 3d DCA), rev. denied, 419 So.2d 1197 (Fla.1982). In the instant case, petitioner took no action which is inconsistent with its right to arbitration. Under the insurance contract sub judice, the right to arbitration only arises when the parties fail to agree as to the amount of loss. Although it appears that U.S. Fire may have been acting in bad faith and attempting to drag out the claim by delaying many months before sending a proof of loss form to respondents, neither party could have known during that period of time that the claim would eventually be disputed as to the amount of loss. Petitioner’s dilatoriness, therefore, is unrelated to petitioner’s right to arbitration and cannot constitute a waiver of that right.

Further, petitioner’s failure to immediately demand arbitration upon discovery that there was a large disparity between petitioner’s appraisal and respondents’ appraisal does not constitute waiver of the right to arbitration. At that time, petitioner made a settlement offer to respondents for the amount of the low appraisal. Arms length negotiations between parties often begin with widely disparate dollar amounts being promoted by each side. Petitioner’s settlement offer was, perhaps, merely a first step in attempting to resolve the dispute amicably and without any formal proceedings. This type of conduct is not inconsistent with the right to arbitration. Miller Construction Company, Inc. v. First Baptist Church of Live Oak, Inc., 396 So.2d 281 (Fla. 1st DCA 1981).

As can be seen from the language of the contract between the parties, a written demand is required to trigger the arbitration clause. Once the clause is appropriately invoked, arbitration becomes a condition precedent to the right of the insured to maintain an action on the policy. New Amsterdam Casualty Co. v. J.H. Blackshear, Inc., 116 Fla. 289, 156 So. 695 (1934); Transamerica Insurance Co. v. Weed, 420 So.2d 370 (Fla. 1st DCA 1982). Although in the instant case the trial court found that it was not clear whether an affirmative and formal demand for arbitration was ever made by petitioner, we hold that petitioner’s motion to dismiss constituted such a demand. In Balboa Insurance Co. v. W.G. Mills, Inc., 403 So.2d 1149 (Fla. 2d DCA 1981), the court held that where the allegations of a motion to dismiss are based on a contractual right to arbitration, the motion to dismiss is, in substance, also a motion to compel arbitration. The Balboa court noted that a pleading is to be governed by its substance rather than its label. As in Balboa, the allegations of petitioner’s motion to dismiss sub judice are based on the contractual right to arbitration. Therefore, the motion to dismiss is, in substance, a motion to compel arbitration and a demand for arbitration. See also Butcher & Singer, Inc. v. Frisch, 433 So.2d 1360 (Fla. 4th DCA 1983); Rinker Portland Cement Corp. v. Seidel, 414 So.2d 629 (Fla. 3d DCA 1982).

Respondents’ contentions that the dispute is not over the amount of loss and that a nonarbitrable claim asserted subsequent to the order sub judice should preclude arbitration are without merit.

Permitting parties to litigate a dispute in court instead of proceeding to arbitration, if there is a right of arbitration, constitutes a departure from the essential requirements of law which cannot be adequately remedied by appeal. Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981). Certiorari is the appropriate remedy to review a nonfinal order denying the right to arbitration where such right exists. Lip ton Professional Soccer, Inc., 416 So.2d 1236 (Fla. 1st DCA 1982); Paine, Webber, Jackson & Curtis v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982). Accordingly, the writ of certiorari is granted, and the order of the trial court denying petitioner’s motion to dismiss is quashed.

BOOTH and LARRY G. SMITH, JJ„ concur.


author: WIGGINTON, Judge.

text:
    Howard OWEN, Harold Owen and Terry Wayne Barnhill, Appellants, v. STATE of Florida, Appellee.
    No. AQ-425.
    District Court of Appeal of Florida, First District.
    Dec. 12, 1983.
    Rehearing Denied Jan. 11, 1984.

      Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellants entered pleas of nolo conten-dere to the charge of trafficking in cannabis in violation of section 893.135(l)(a), Florida Statutes (1981), reserving their right to appeal the denial of their motions to dismiss based on prosecutorial misconduct and selective and discriminatory enforcement of the trafficking law. We affirm.

Appellants’ arrests were the culmination of a “reverse sting” operation conducted by the Bay County Sheriff’s Department. As indicated in the record, deputy sheriff Allen Johnson, assigned to the department’s special investigation unit, disclosed to an informant that the department could conduct reverse stings, and to get in touch with him if someone contacted the informant wanting to purchase or sell a large quantity of drugs. Although the informant did not discuss the possibility of compensation, Johnson volunteered that he could predict no set figure at that time.

Six months following the initial conversation, Johnson was contacted by the informant who disclosed that appellants, all being unknown to Johnson, were interested in buying drugs, and requested whether Johnson could procure 200 pounds of marijuana and some dilaudids, and could conduct a reverse sting. As before, the informant did not request compensation. Johnson discussed the possibility of a sting operation with the sheriff, and a flat fee of $5,000 was arranged as compensation. Johnson later testified on deposition that a percentage fee was never contemplated, that the informant’s compensation did not depend on how large the deal was or on the amount of property seized, and that the informant would not necessarily be called as a witness during the trial.

The department ultimately procured the 200 pounds of marijuana and 2,000 tablets of dilaudid. Utilizing the informant as a middleman, the department was successful in apprehending appellants during the course of the drug sale.

Following arraignment and during the course of discovery, appellants filed their motions to dismiss the information and requests for an evidentiary hearing. A hearing was held on the motions during which portions of the depositions of deputy Johnson and of Joe Coram, the department’s chief investigator, were considered by the trial court. Upon reading the depositions and memoranda of law, and listening to counsels’ arguments, but without conducting an evidentiary hearing, the court denied the first motion primarily because it did not find that there had been a contingency fee arrangement, and denied the second motion under the impression that “the state has the right to select the cases that it feels are worthy of prosecution,” subject only to conduct so reprehensible as to shock the judicial conscience. The court’s judicial conscience was not shocked by the instant conduct.

Appellants now argue that the facts before the trial court compel a finding of prosecutorial misconduct and selective enforcement, or, at least, that they were entitled to an evidentiary hearing on those points. Apart from its argument that no such misconduct or selective enforcement existed, the state argues, as it did below, the procedural impropriety of the motions, pointing to the fact that the motions were neither filed before or upon arraignment, nor with the permission of the trial court, contrary to rule 3.190(c), Florida Rules of Criminal Procedure. The state also notes that the facts were agreed to as being in dispute and the motions were not sworn to, circumstances which would preclude their consideration by way of rule 3.190(c)(4).

Before reaching the merits of appellants’ cause, we take time to briefly reply to the state’s procedural arguments. Rule 3.190(c) provides that motions to dismiss the indictment or information shall be made before or upon arraignment unless the court, in its discretion, permits the defendant to plead and thereafter file a motion to dismiss at a time to be set by the court. Although the procedure followed below by the trial court and the parties can hardly be considered ideal under the rule, we can only assume that by setting a time for and conducting a hearing, the court exercised its discretion as provided by Rule 3.190(c). In any event, considering the trial court’s resolution of the motions in favor of the state, and our affirmance of that action on its merits, the procedural discrepancies to which the state draws our attention is hardly necessary as an alternative consideration on which to base our affirmance.

Turning now to the merits of the appeal, appellants’ secondary argument, which we shall consider first, is that they were entitled to an evidentiary hearing on their motions to dismiss. For that proposition appellants rely upon United States v. Graves, 556 F.2d 1319 (5th Cir.1977). Without reaching the point made by the state that the applicable federal criminal rules differ from Florida’s criminal rules and therefore Graves is not controlling, we note that Graves, a prosecutorial misconduct case, does not stand for the proposition that an evidentiary hearing was mandatory, but rather, that a pretrial hearing was appropriate, as the motion to dismiss essentially involved a question of law. As regards an evidentiary hearing, Graves merely indicates that the “district court permitted extensive testimony by defense witnesses.” Id., at 1320 (emphasis added). Similarly, rule 3.190(d) provides that a court may receive evidence on any issue of fact alleged in the motion and necessary to the decision on the motion. Thus, whether an evidentiary hearing was held on the motion alleging prosecutorial misconduct was a question to be resolved within the trial court’s discretion and the record assures us that the court did not abuse its discretion.

Likewise, an evidentiary hearing on the motion alleging selective prosecution was not mandated but was within the trial court’s discretion. Indeed, United States v. Ream, 491 F.2d 1243 (5th Cir.1974), relied on by appellant for reversal, supports our holding. Ream states that where selective prosecution is argued, “an evidentia-ry hearing need be held only when a defendant presents facts sufficient to raise a reasonable doubt about the prosecutor’s motive.” Id., at 1246. Without adopting the Ream test in the instant case, we cannot say that the facts presented to the trial court should have raised a reasonable doubt concerning the prosecutor’s motive necessitating an evidentiary hearing; the depositions and arguments were sufficient on which the trial court could have based its ruling.

The hearing issue aside, appellants’ primary argument is that the motions to dismiss should have been granted based on the depositions and legal memo-randa. We can easily dispose of this argument as it relates to appellants’ motion alleging selective enforcement: the motion and accompanying memorandum wholly fail to establish the denial of equal protection arising from selective and discriminatory enforcement. As stated by our supreme court, “[i]n order to constitute a denial of equal protection, the selective enforcement must be deliberately based on an unjustifiable or arbitrary classification .... The mere failure to prosecute all offenders is no ground for a claim of a denial of equal protection ... [citations omitted]” Bell v. State, 369 So.2d 932, 934 (Fla.1979). In the instant case, we fail to see how Bay County’s policy of conducting reverse stings (the present being the second of two conducted) only when it would involve in excess of fifty pounds of marijuana constitutes an arbitrary classification comparable to the unjustifiable selection of alleged criminal defendants based on standards of race or religion. Cf. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). The trial court’s denial of the motion is affirmed.

Finally, we dispose of appellants’ argument alleging prosecutorial misconduct by distinguishing the facts of this case from those in Glosson v. State, 441 So.2d 1178 (Fla. 1st DCA 1983), relied on by appellants for reversal. In Glosson the state admitted to a scheme whereby an individual was promised payment contingent upon his successfully making criminal cases against others to whom he was to sell cannabis provided by the Levy County Sheriff’s Department. The state also admitted that it had no case without that individual’s testimony. We held those circumstances to be intolerable as “akin to the manufacturing of criminal activity by the state,” and affirmed the trial court’s dismissal of the informations. Id., at 1179.

The type of outrageous conduct represented in Glosson is not now before us. On the contrary, in the instant case there was no contingency fee arrangement and the fee did not depend on the effectiveness of the informant’s cooperation, either during the sting operation or afterwards at trial. There is simply nothing to support a finding here of the impermissible criminal fabrication by law enforcement as was so prevalent in the Glosson case. The decision of the trial court to deny this motion to dismiss is also affirmed.

MILLS and THOMPSON, JJ., concur.


author: HENDRY, Judge. JORGENSON, Judge,

text:
    Raymundo ALFONSO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-738.
    District Court of Appeal of Florida, Third District.
    Dec. 13, 1983.

      Bennett H. Brummer, Public Defender, and Carol R. Gersten, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   HENDRY, Judge.

Raymundo Alfonso appeals from his conviction of burglary of a structure and carrying a concealed firearm following the denial of his motions for a mistrial. We affirm.

On the second day of trial, an incident occurred which gave rise to appellant’s motions for a mistrial, and thus, to this appeal. On that day, Officer Beard, the City of Miami police officer who initially apprehended appellant, was seen talking with two of the jurors in the ease. The trial court was notified and appellant immediately moved for a mistrial. The trial court denied the motion and proceeded to question the jurors about the incident. One juror, Mr. Dunlevy, was dismissed when it was learned that Officer Beard had commented on the case to him. Mr. Shoaf was allowed to remain on the jury because the only conversation he had with Officer Beard concerned fishing and boats. The other members of the jury were also questioned. They all stated that they heard the conversation and that it involved fishing. No one, other than Mr. Dunlevy, heard Officer Beard comment on the case. Appellant again moved for a mistrial when it was learned that all of the jurors heard the conversation about fishing, arguing that the members would be more sympathetic to the police officer (and thus prejudiced against the appellant) because of it. The trial court again denied the motion and proceeded to question each juror individually as to his or her ability to render a fair and impartial judgment in the case. All of the jurors stated that the conversation would have no effect on their deliberations or verdict. Thus satisfied, the trial court seated the alternate juror in place of Mr. Dunlevy and the trial resumed.

The procedure to be followed when there has been an impermissible contact with the jury or when the jury may have had access to potentially prejudicial material (such as a television or newspaper report) regarding the case is set out in United States v. Herring, 568 F.2d 1099 (5th Cir.1978). The issue which must first be resolved in such an instance is whether the material or contact raises serious questions of possible prejudice to the litigants. If so, the trial court must determine whether the material has actually reached the jury or whether members of the jury have knowledge of the impermissible contact. If, in the court’s view, there are serious questions of possible prejudice, the court must question the members of the jury on their ability to render an impartial verdict. Id. at 1104-1105. This procedure is now followed by the federal courts in the Fifth Circuit Court of Appeals, United States v. Pecora, 693 F.2d 421 (5th Cir.1982); United States v. Phillips, 664 F.2d 971, 997-1000 (5th Cir.1981); United States v. Forrest, 620 F.2d 446 (5th Cir.1980), appeal after remand, 649 F.2d 355 (5th Cir.1981); Dorminey v. United States, 546 F.Supp. 702 (M.D.Ga.1982), and by our state courts. Jones v. State, 411 So.2d 165 (Fla.1982); Diaz v. State, 435 So.2d 911 (Fla. 4th DCA 1983); State v. Tresvant, 359 So.2d 524 (Fla. 3d DCA 1978).

While the conduct of the jury is the responsibility of the trial court and the court is allowed discretion in dealing with any problems that arise, Orosz v. State, 389 So.2d 1199 (Fla. 1st DCA 1980), due process and the sixth amendment to the United States Constitution require that the verdict in a criminal trial be rendered by a fair and impartial jury. The court in Herring set out a procedure whereby all of these concerns are satisfied. Since the trial court in this case followed the Herring hearing procedure precisely, we find that none of appellant’s constitutionally guaranteed due process or sixth amendment rights were violated.

Affirmed.

JORGENSON, Judge,

specially concurring.

I agree that an affirmance is the proper result in this case and write separately only to emphasize that our affirmance should not be read as an approval of the conduct described in the majority opinion. While I agree that it is the responsibility of the trial judge to deal with problems of this nature, that burden could be significantly lessened if trial counsel would properly instruct their witnesses on the fundamental rules of court. We glean from the record that this was the first jury trial in which the police officer had ever been involved. The trial court properly chastised the officer and instructed him on his duty to have no contact with a juror.

      . The jury had been given the standard admonishment at the start of the trial.

      . Canon 7 of the Florida Code of Professional Responsibility (1970) provides:
      EC 7-29. To safeguard the impartiality that is essential to the jury process, veniremen and jurors should be protected against extraneous influences. When impartiality is present, public confidence in the judicial system is enhanced. There should be no extrajudicial communication with veniremen prior to trial or with jurors during trial by or on behalf of a lawyer connected with the case.... DR 7-108(B). During the trial of a case: (1) A lawyer connected therewith shall not communicate with or cause another to communicate with any member of the jury.
      (G) A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge.