author: OTT, Chief Judge. LEHAN, Judge,

text:
    FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. James L. COPE, as Personal Representative of the Estate of Anna L. Cope, deceased, Appellee.
    No. 82-1706.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1984.

      Jonathan L. Alpert of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellant.
    Robert W. Holman of Hammond & Holman, Pinellas Park, and G. Robert Schultz of St. Petersburg, for appellee.
   OTT, Chief Judge.

The trial court found that appellant had acted in bad faith by failing to settle a claim made against its insured. Judgment in excess of appellant’s policy limits was entered against appellant in favor of the claimant. Appellant raises several points on appeal. Those which merit discussion are (1) whether a certain release and satisfaction specifically released appellant, (2) whether appellant as excess insurer could be guilty of bad faith, and (3) whether the complete discharge of appellant’s insured bars the claimant’s bad faith action against appellant.

On March 30, 1978, appellant’s insured (Brosnan) was, with permission, operating an automobile owned by Gehan and in which Gehan was a passenger. Brosnan ran a stop sign and collided with a vehicle driven by appellee James L. Cope. Appel-lee’s wife, Anna L. Cope, was a passenger in the car. Mrs. Cope was killed and Mr. Cope was injured. Brosnan was charged with driving while under the influence (alcohol) and vehicular homicide.

Appellant had issued a $10,000/20,000 liability policy to Brosnan. On April 26, 1978, appellee’s attorney wrote to Brosnan informing Brosnan of the attorney’s representation of appellee. Brosnan turned this letter over to an attorney representing him in the DWI/homicide case. On May 2, 1978, she forwarded the letter to appellant’s adjuster with her request that the case be settled.

By letter dated May 16,1978, appellant’s adjuster advised Brosnan it was “continuing to handle” the claim. The letter informed Brosnan that it was foreseeable that the damages claimed would exceed Brosnan’s policy limits. “The company will, of course, attempt to adjust the loss within the limits and defend any suit and [sic] it’s [sic] expense as provided in the policy.” [Emphasis supplied.] Brosnan testified that he never again heard from the adjuster or from appellant.

On September 27, 1978, appellee’s attorney wrote to the adjuster requesting that all future communications regarding the case be directed to the attorney. A second letter followed on October 9, 1978, in which appellee’s attorney forwarded all medical reports and bills. Appellee’s attorney demanded the full policy limits and expressed his intent to file suit if no response was received within seven days. The adjuster responded on October 16, 1978, admitting that the severity of the injuries warranted payment of the policy limits, however, the adjuster would first require appellee to reach a settlement with Gehan, who had also sustained injuries.

Meanwhile, appellee had attempted to negotiate with Hartford with whom Gehan had a $10,000/20,000 liability policy. No agreement was reached.

Negotiations having failed to produce a settlement with either insurer, ap-pellee filed suit on November 22, 1978, against Brosnan, appellant, Gehan, and Hartford for the wrongful death of his wife and for his own personal injuries. Ap-pellee’s individual claim for personal injuries was settled, appellant and Hartford each paying $10,000. Jury trial of the wrongful death action resulted in a $100,-000 judgment for appellee. Appellant and Hartford immediately tendered their respective policy limits of $10,000 each. Thereafter, appellee filed a complaint for excess judgment against Hartford, alleging that Hartford had acted in bad faith by failing to negotiate a settlement. This suit was settled for $50,000. Appellee executed a release and a satisfaction of judgment in connection therewith which discharged Hartford, its insured (Gehan), and its omnibus insured (Brosnan) from any further liability on the $100,000 wrongful death judgment.

Appellee next sued appellant for the $30,-000 balance of the original $100,000 judgment. The complaint alleged that appellant negligently and in bad faith refused to negotiate a settlement of appellee’s claim. Appellee prevailed, and judgment for $30,-000 was entered against appellant.

At pretrial conference, appellant moved to amend its affirmative defenses to allege that the release executed pursuant to the settlement appellee reached in his bad faith suit against Hartford also released appellant. It is not clear from the transcript that the.trial court specifically granted this motion. However, the final judgment contains the finding that the release and the satisfaction of judgment were not intended to benefit appellant and did not relieve appellant of liability. Obviously, the trial court considered and rejected this additional defense asserted by appellant, and we affirm this finding. Paragraphs 1 and 2 of the release specifically “release and forever discharge” Gehan, Hartford, and Brosnan. Appellant was not named in the releasing claim nor did it contribute any money toward securing the release or the satisfaction of judgment. Appellant argues that general language in paragraph 9 of the release was effective to discharge it even though not specifically named. This is a question of fact and the trial court’s finding that appellant was not released is supported by substantial competent evidence. Cf. Hurt v. Leatherby Insurance Co., 380 So.2d 432 (Fla.1980).

Appellant argues that a cause of action for bad faith can be maintained only when an insured is legally obligated to pay a judgment in excess of his policy limits. Because Brosnan was completely safeguarded by the release and the satisfaction executed by appellee, appellant contends that the bad faith cause of action no longer exists. Kelly v. Williams, 411 So.2d 902 (Fla. 5th DCA), petition for review denied, 419 So.2d 1198 (Fla.1982), is cited by appellant in support of its contention. In Kelly, a stipulation completely safeguarded an insured tortfeasor from liability in excess of his liability insurance policy limits. Even though the injured party specifically reserved the right in the stipulation to pursue a bad faith claim against the tortfeasor’s insurer, the fifth district held that such an action was barred. “The stipulation completely safeguarded the insured, and therefore it completely discharged the insurer’s duty to its insured.” 411 So.2d at 904.

We disagree with Kelly and hold that appellant remained liable. Florida law recognizes that an injured party/judgment creditor may maintain suit directly against a tortfeasor’s liability insurer for judgment in excess of the policy limits based upon bad faith of the insurer in the conduct or the handling of the original claim. Thompson v. Commercial Union Insurance Co. of New York, 250 So.2d 259 (Fla.1971). Hence, it is a separate and distinct cause of action. See Kelly, 411 So.2d at 905 (Co-wart, J., dissenting). If Brosnan had satisfied the judgment out of his own pocket and obtained a release and satisfaction of judgment, absent a prohibition in the policy, appellant would not have been relieved of liability to Brosnan. Cf. Aetna Casualty & Surety Co. v. Beane, 385 So.2d 1087 (Fla. 4th DCA 1980). Similarly, we think that where the insurer’s bad faith is a separate tort, as here, the injured party may release the tortfeasor from personal liability on the judgment without discharging the insurer from liability for its independent tort. Indeed, Hartford had a duty to both its insureds, Gehan and Brosnan, to seek their discharge from further personal liability as a part of the negotiated settlement of the bad faith claim against Hartford. However, this did not affect appellant’s liability for its own bad faith.

Appellant points out that it was only the excess or secondary insurer of Brosnan in this case. The policy of insurance issued by appellant to Brosnan contained a clause dealing with “other insurance." It provided, "... any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.” Gehan’s insurance policy covered Brosnan as a user of the insured automobile, therefore, Hartford was primary insurer. Appellant takes the position that it had no opportunity to settle because Hartford, as primary insurer, was in control of Brosnan’s defense. In support of its position, appellant relies on General Accident Fire & Life Assurance Corp. v. American Casualty Co., 390 So.2d 761 (Fla. 3d DCA 1980), petition for review denied, 399 So.2d 1142 (Fla. 1981).

General Accident is distinguishable from the instant case in several respects. First, in General Accident, American Casualty was a true excess insurer; it had issued an excess liability insurance policy. Appellant, on the other hand, was only an excess insurer because Brosnan occupied a non-owned vehicle. In many other situations, appellant would be the primary insurer. Second, appellant represented to Bros-nan in the May 16, 1978, letter that it would “handle” the matter, attempt to settle within the policy limits, and defend any suit. In the instant case, there was no question that Brosnan was liable and that the injuries sustained were likely to exceed all available insurance. Under these facts we hold that not only was appellant permitted to negotiate a settlement, but also it had a duty to defend Brosnan or attempt a settlement. We are not holding that appellant would ever be obligated to offer or pay more than its policy limits to protect itself from a potential bad faith claim.

We find support for our holding from other jurisdictions. Aetna Casualty and Surety Co. v. Buckeye Union Casualty Co., 157 Ohio St. 385, 105 N.E.2d 568 (Ohio 1952), arose out of an automobile accident. A policy issued by Aetna to the driver/tortfeasor provided that it “shall be excess insurance over any other valid and collectible insurance available to the insured.” 105 N.E.2d at 571. Buckeye, the primary insurer, denied coverage. After demand upon and notice to Buckeye, Aetna settled with the claimant. Aetna then sued Buckeye to recover the amount paid to the claimant. The question before the Ohio Supreme Court was whether Aetna in making the settlement was a mere volunteer without right of recovery from Buckeye. The court held that Aetna had an interest to protect and a legal obligation to pay. As long as Buckeye refused to participate in negotiations or defend the action, there was no “other valid or collectible insurance.” Also, in Fireman’s Fund Insurance Co. v. Security Insurance Co. of Hartford, 367 A.2d 864 (N.J.1976), an excess insurer was permitted to assist the insured in settling an action directly with the injured claimant when the primary insurer unreasonably refused to do so.

Finally, appellant argues that even if it' could have been guilty of bad faith as excess insurer, the evidence presented in this cause was insufficient to support a finding of bad faith. Appellant further asserts that the lower court found that appellant could have or should have settled the claim between October 9, 1978, and November 22, 1978. We disagree that the lower court’s finding was limited to that time span. We hold that there was substantial competent evidence to support a finding that appellant acted in bad faith in failing to negotiate or settle the original claim against Brosnan within its policy limits.

From the evidence it is apparent that there was never any basis for contending that Brosnan was not liable for Mrs. Cope’s death. Appellant never denied liability. On the contrary, the May 16, 1978, letter from the adjuster to Brosnan conceded that Brosnan was liable, that the damages would exceed coverage, and that settlement was desirable. In accord with this letter was a June 7, 1978, interoffice communication of the adjuster admitting that appellant would “undoubtedly” have to pay its policy limits. This communication concluded, “we will be in constant touch with Hartford and [appellee’s attorney] regarding settlement of the Copes’ claim.” Contrary to this statement, the record contains no evidence that appellant ever initiated contact with appellee or his attorney. Also, it is unrefuted that, other than the initial letter from the adjuster, appellant made no attempt to contact Brosnan or advise him of settlement negotiations. Appellant was obligated “to advise the insured of settlement opportunities, to advise of the probable outcome of the litigation, to warn of the possibility of an excess judgment, and to advise the insured of any steps he might take to avoid same.” Boston Old Colony Insurance Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.), cert. denied, 450 U.S. 922, 101 S.Ct. 1372, 67 L.Ed.2d 350 (1980).

When faced with the October 9, 1978, offer to settle the admittedly serious and legitimate claim, appellant was willing to tender its policy limits only after a settlement was reached with Gehan. Gehan had suffered personal injuries but had made no attempt to assert a claim against Brosnan or as an omnibus insured under appellant's policy. There is no evidence that appellant ever contacted Gehan concerning her injuries. In Harmon v. State Farm Mutual Automobile Insurance Co., 232 So.2d 206 (Fla. 2d DCA 1970), this court held that where multiple claims arise out of one accident an insurer has the right to settle with some claimants regardless of whether such action depletes or even exhausts the policy limits to the extent that other claimants are left without recourse against the insurer. The Harmon court refused to distinguish between claims of insureds under insurance policies and mere third-party claims against insurers. Hence, Gehan's potential claim did not bar settlement with appellee.

We AFFIRM the decision of the trial court and certify that our decision is in direct conflict with Kelly v. Williams, 411 So.2d 902 (Fla. 5th DCA), petition for review denied, 419 So.2d 1198 (Fla.1982).

DANAHY, J., concurs.

LEHAN, J., concurs with opinion.

LEHAN, Judge,

concurs with opinion.

I concur with the majority opinion because there is an especially stringent requirement that a releasor’s intent to release a party who is only generally described in a release of the type involved here be clearly manifested. As Hurt v. Leatherby Insurance Co., cited in the majority opinion, says:

[I]t is important that the releasor’s intent to give a general release be clearly expressed. ... We feel that the manifestation of the intent must be more explicit than signing a printed form which' happened to contain broad, general release language in addition to providing spaces for the specially discharged parties.

Id. at 433-34. The release in the case before us is not on a printed form. But its paragraphs 1 and 2, which specifically release Hartford, Gehan and Brosnan, neither name nor refer to appellant. Appellant must rely upon paragraph 9, quoted in the majority opinion, the language of which appears to be the type of “boiler plate” language referred to in Hurt. Hurt explains the historical origin of such generalized language as not necessarily connoting the intent of the parties to the release.

Accordingly, I understand our holding to include the following point: in a case like this, general language, which refers to “insurers” but does not name the insurer, does not in itself constitute a sufficiently clear manifestation of intent to require the release of the insurer when other parties released are specifically named and there is other evidence contrary to that general language. See also Avery v. Owen, 404 So.2d 754 (Fla. 3d DCA 1981).

The record establishes beyond doubt that the parties to the release did not intend to release appellant. Therefore, elements of a reformation action by reason of mutual mistake exist. But under the circumstances of this case and consistent with Hurt, there is and should be no formalistic, technical requirement that a reformation action be a condition precedent to relief. See Alexander v. Kirkham, 365 So.2d 1038 (Fla. 3d DCA 1979), which involved reformation of a release which had mistakenly released an insurer who had paid nothing for the release.

      . A judgment creditor may maintain suit directly against a tortfeasor's liability insurer for recovery of judgment in excess of policy limits. Thompson v. Commercial Union Insurance Co. of New York, 250 So.2d 259 (Fla.1971).

      . That paragraph provided:
      9. That I hereby covenant with each of the parties hereby released, their heirs, executors, administrators, successors, representatives, assigns, principals, agents, servants, insurers and employees for or on account of the matters described herein that this settlement is made in good faith, and that these presents may be pleaded as a defense to any action or other proceeding which may be brought or instituted by me or on behalf of ANNA L. COPE’s estate against them in breach of this covenant.

      . If judgment against a common insured is entered, a primary insurer is obligated to exhaust its policy limits before a secondary is required to contribute toward payment of the judgment.

      . In addition, see generally 7C J. Appleman, Insurance Law and Practice (Berdal ed.), § 4922 (1979); Couch on Insurance 2d (Rev. ed.), § 51:27 (1982); 5 Long, Law of Liability Insurance, § 5.63 (1981).


source: Caselaw Access Project

author: LEHAN, Judge.

license: Public Domain

text:
    HALLMARK BUILDERS, INC., Appellant, v. HICKORY LAKES OF BRANDON, INC., Appellee.
    No. 83-514.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1984.
    Rehearing Denied Feb. 13, 1984.
    Lynn James Hinson and Paul J. Mokris of Dean, Mead, Egerton, Bloodworth, Ca-pouano & Bozarth, P.A., Orlando, for appellant.
    Lewis M. Kanner of Williams, Salomon, Kanner, Damian, Weissler & Brooks, Miami, for appellee.
   LEHAN, Judge.

Plaintiff, Hallmark Builders, Inc., appeals from a final summary judgment entered for defendant, Hickory Lakes of Brandon, Inc., in an action seeking specific performance of a right of first refusal to purchase real property. The issue involved is whether the holder of a right of first refusal must submit an agreement to purchase that is identical in every term to the offer to purchase received by the owner of the property. Finding that the offers must be identical only in essential terms, we reverse the summary judgment.

Hallmark Builders entered into an agreement of sale and purchase with Hickory Lakes pursuant to which Hallmark purchased a parcel of real property located in Hillsborough County. Among other things, this agreement granted Hallmark a right of first refusal to purchase certain other real property owned by Hickory Lakes. The agreement required Hickory Lakes to notify Hallmark if Hickory Lakes received an offer from another purchaser for the property. Hallmark would then have fifteen days from receipt of the notice within which to offer to purchase the property on the same terms and conditions contained in the first offer to purchase. Upon such an offer by Hallmark, Hickory Lakes would then be obligated to convey the property to Hallmark under those terms and conditions.

On July 20, 1979, Hickory Lakes gave Hallmark written notice that it had entered into an agreement of purchase and sale with two parties, D.V. McConnohie and Bendon Investment Company, for sale of the subject property. The relevant terms of the McConnohie/Bendon contract were that Hickory Lakes would receive $410,000 and would transfer to McConnohie and Bendon the title to the real property together with two particularly described promissory notes marked “paid in full.” Each of these described promissory notes was dated January 5, 1977, was in the amount of $30,000, and was payable to Housing Investment Corporation, which was the parent company of Hickory Lakes. McConnohie had signed one of the promissory notes and Underberg, the president of Bendon, had signed the other. The notes arose out of a four-party agreement entered into between Housing Investment Corporation, McConnohie and his wife, Un-derberg and his wife, and Custom Industrial Park, Inc. The four-party agreement provided that McConnohie and Underberg would execute the notes in lieu of being subject to liability for a deficiency decree under a mortgage given by Custom Industrial Park, Inc. to Housing Investment Corporation. McConnohie and Underberg had guaranteed the obligation secured by that mortgage. Under that agreement the liability of McConnohie and Underberg on the notes would be reduced by certain percentages of commissions or fees for sales or leases that resulted from contacts made by Underberg or McConnohie which aided Housing Investment Corp. in either leasing or selling properties which it owned.

After receiving notice of the McConnohie/Bendon contract, Hallmark notified Hickory Lakes that it desired to purchase the real property upon which it had a right of first refusal. Hallmark delivered an agreement of sale and purchase to Hickory Lakes and tendered a $20,000 check as deposit. Hickory Lakes refused to close on the agreement, contending that Hallmark had not properly exercised its right of first refusal. Hickory Lakes claimed that the agreement submitted by Hallmark was not on the same terms as the McConnohie/Bendon contract because it differed in the provisions dealing with the two promissory notes. Hallmark’s agreement offered to purchase the property for $410,000, less a credit of $60,000 for the total outstanding principal balances of the two promissory notes. Hallmark believed that the promissory notes had not been satisfied and, therefore, viewed the return of the notes marked “paid in full” under the McConnohie/Bendon contract as a credit against the purchase price of $410,000. Hallmark’s agreement further provided that, in the event the balance due under the two notes was greater than or less than $30,000 each, the credit to Hallmark against the purchase price of $410,000 would be increased or decreased accordingly. All other terms of the Hallmark agreement were identical to the McConnohie/Bendon contract. When Hickory Lakes rejected Hallmark’s proposed agreement, it extended the period for Hallmark to exercise its right of first refusal until August 14, 1979.

On August 14, 1979, Hallmark submitted a second agreement with all terms identical to the McConnohie/Bendon contract except for the provision relating to the promissory notes. This second agreement provided that Hallmark would be entitled to a $60,-000 credit against the $410,000 purchase price or, alternatively, at the option of Hickory Lakes, Hallmark would pay Hickory Lakes the full $410,000 purchase price and receive at closing an assignment of the two promissory notes endorsed by Housing Investment Corporation to Hallmark without recourse.

Hickory Lakes refused to close on this agreement also. Hallmark then sued Hickory Lakes seeking specific performance or damages for failure to convey the property in accordance with the terms of the right of first refusal held by Hallmark. One of Hickory Lakes’ affirmative defenses was that Hallmark had attempted to vary the terms of the competing McConnohie/Ben-don contract and, therefore, had failed to properly exercise its right of first refusal. After pleadings and discovery, Hallmark moved for partial summary judgment against Hickory Lakes, contending that Hallmark was entitled as a matter of law to specific performance of its right of first refusal. Hickory Lakes also moved for summary judgment, contending that Hallmark as a matter of law was not entitled to specific performance or damages because of Hallmark’s failure to properly exercise its right of first refusal. After hearing, the trial court ruled that there were no genuine issues of material fact and that Hickory Lakes was entitled to summary judgment, finding that Hallmark had failed to properly exercise its right of first refusal. This appeal followed.

Hallmark contends that summary judgment was improper because genuine issues of material fact existed as to whether Hallmark’s offer to purchase the real property was on the same terms and conditions as the McConnohie/Bendon contract. Hallmark contends that factual questions remain to be resolved concerning the status of the two promissory notes. Hallmark argues that the facts surrounding the two notes, such as whether the notes had been partially or fully paid, are relevant to determine whether Hallmark’s offer matched the McConnohie/Bendon offer.

Hickory Lakes, on the other hand, contends that there were no genuine issues as to any material fact and that summary judgment was proper as a matter of law. Hickory Lakes argues that, in a proper exercise of a right of first refusal, the offer to purchase tendered by the holder of the right matches the competing contract only if the terms of both the offer to purchase and the competing contract are identical, citing Coastal Bay Golf Club, Inc. v. Holbein, 231 So.2d 854 (Fla. 3d DCA 1970).

In Coastal Bay, the lessee of certain real property held a right of first refusal on that property which was very similar to that held by Hallmark in that it gave the lessee the right to purchase the property on the same terms and conditions offered by another offeror. The owner of the property received an offer from a third party to purchase the property at a total price of $2,200,000, payable $200,000 at closing, with the balance bearing interest at seven percent per year and payable $600,000 six months after closing, $700,000 two years after closing, and $700,000 three years after closing. This contract also provided for the payment of a commission of $200,000 to the real estate broker involved in the transaction. After being notified by the owner of the receipt of this offer to purchase, the lessee tendered an offer purportedly matching the first offer under the terms of the right of first refusal. The lessee offered to purchase the property at a price of $2,000,000 payable $200,000 at closing, $600,000 six months after closing, $700,000 two years after closing and $500,-000 three years after closing. The lessee argued that its offer matched the first offer, even though it provided for a smaller purchase price, because its offer eliminated the need for payment of a broker’s commission. The appellate court upheld the trial court’s finding that the lessee had failed to match the first offer to purchase because the purchase price of the two contracts was substantially different and because there was a substantial difference in the interest that the sellers would receive under the two contracts. Under the first contract the sellers would receive seven percent interest on $700,000 for three years, but under the lessee’s contract they would receive seven percent interest on only $500,000 for three years. The Third District Court of Appeal agreed with the trial court that the lessee’s offer was not an unconditional acceptance of the right of first refusal and did not match the first offer because the lessee’s offer “required a disposition of the property by a different method and under different conditions” that the first offer. Id. at 858.

We do not feel bound by Coastal Bay to find that as a matter of law Hallmark failed to properly exercise its right of first refusal because its offer did not match the McConnohie/Bendon offer. As the court in Coastal Bay noted, one offer to purchase matches another if the essential terms of the offer are identical. Id. at 858. The determination as to whether the essential terms of Hallmark’s offer are identical to the essential terms of the McConnohie/Bendon offer requires a determination of factual issues as to the status of the two promissory notes. Hickory Lakes, as the party moving for the summary judgment, did not carry the burden of conclusively establishing the absence of any genuine issue of material fact. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

If the two promissory notes had been fully paid, then the offers by Hallmark and McConnohie/Bendon would appear to have been substantially identical, at least insofar as the consideration to be received by Hickory Lakes is concerned. That is, if the notes had been already paid, Hickory Lakes would receive $410,000 under either offer, and delivery to the purchaser by Hickory Lakes of the notes marked paid in full under the McConnohie/Bendon contract would then have been but an incidental aspect of the transaction. On the other hand, if the notes were unpaid, then presumably in order to deliver them marked paid in full under the McConnohie/Bendon offer, Hickory Lakes would have had to first pay off the notes to Housing Investment Corporation. Therefore, assuming the notes to be unpaid, under the McConnohie/Bendon contract Hickory Lakes would receive a net purchase price of $410,000 less the amount paid to Housing Investment Corporation in repayment of the notes. Under the first Hallmark contract, which offered to pay a purchase price of $410,000 less any amount due on the promissory notes, Hickory Lakes would evidently receive a net purchase price identical to that under the McConnohie/Bendon contract because under that contract, as we have noted, Hickory Lakes would, on the face of the transaction, be required to pay to Housing Investment Corporation the balance due under the notes. Similarly, under Hallmark's second contract, which offered a purchase price of $410,000 and acceptance of an assignment of the two promissory notes without recourse, Hickory Lakes would appear to also receive the balance of $410,000 left after paying off Housing Investment Corporation in order to effect the assignment of the notes. Accordingly, under either of Hallmark’s offers, it appears that Hickory Lakes would receive the same net purchase price and Hallmark would pay the same amount as under the McConnohie/Bendon contract.

The record shows substantial issues of fact as to whether or not the promissory notes were enforceable for any part of the principal amount. The record indicates that no cash payments on the principal or interest were ever made under either of the two notes. McConnohie and Underberg claim that their obligations under the notes were satisfied by services they provided pursuant to provisions of the four-party agreement. Housing Investment Corporation, however, claims that the notes were at best only partially satisfied.

If the promissory notes were not satisfied, it would appear, as explained above, that the same consideration would be received by Hickory Lakes under either the Hallmark offers or the McConnohie/Ben-don offer. Accordingly, it does not appear from the record before us that there was any special, legally cognizable benefit to Hickory Lakes from the McConnohie/Ben-don offer which Hickory Lakes would not receive under the Hallmark offer.

In the absence of any proof by Hickory Lakes of a special benefit to them under the McConnohie/Bendon contract, this situation can be distinguished from that in Coastal Bay where the lessee’s offer would have resulted in $42,000 less in interest payments to the owner, thus showing a difference in the essential terms of the offers. See also City National Bank of Miami Beach v. Lundgren, 307 So.2d 870 (Fla. 3d DCA 1975), cert. denied, 316 So.2d 286 (Fla.1976), in which it was found that the holder of the right of first refusal had not tendered an unconditional acceptance of the purchase contract and had not properly exercised its right of first refusal when its offer, unlike the offer by the third party, did not contain an obligation to pay the real estate broker’s commission, thus resulting in a receipt by the seller of a smaller sum of money.

In summary, the offers of Hallmark and McConnohie/Bendon appear to be identical in their essential terms, specifically in the disputed area of consideration, because the net purchase price to be received by Hickory Lakes would appear to be identical under either offer. Although it therefore would appear that Hallmark’s offer matches the McConnohie/Bendon offer in its essential terms, the matter is relatively complex and disputed issues of fact remain concerning the status of the promissory notes. Under the circumstances, it appears inappropriate that we direct judgment for Hallmark at this point. The parties should be allowed to show, in light of our foregoing conclusions, why those notes do or do not create a difference in the consideration, monetary or otherwise, to be received under each offer and why there is or is not any legally cognizable benefit to Hickory Lakes under the McConnohie/Bendon contract which it would not receive under the Hallmark contract.

We' reverse the summary judgment granted to Hickory Lakes and remand to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . We consider Whyopen v. Via, 443 So.2d 419 (Fla. 2d DCA 1984) to be not inconsistent despite its use of the term "equal" in describing the requisites of a matching offer.


author: PER CURIAM.

text:
    Michael Frank CHESTER, Appellant, v. STATE of Florida, Appellee.
    No. AK-332.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.
    Rehearing Denied Feb. 29, 1984.
    Philip Carlton, Jr., of Carlton & Carlton, Miami, for appellant.
    Jim Smith, Atty. Gen., and Gregory C. Smith, Asst. Atty. Gen., for appellee.
   PER CURIAM.

It is conceded that a comment upon the accused’s exercise of his right to remain silent was made during the course of the trial. The appellee contends, however, that the remark was harmless. It is settled doctrine in this State that the error of which appellant complains warrants reversal without consideration of the doctrine of harmless error. Bennett v. State, 316 So.2d 41 (Fla.1975); Shannon v. State, 335 So.2d 5 (Fla.1976). See also, Willinsky v. State, 360 So.2d 760 (Fla.1978); Clark v. State, 363 So.2d 331 (Fla.1978). In light of the foregoing authorities, we decline to certify to the Florida Supreme Court for reconsideration, as requested by the State, the issue of the preclusion of the harmless error doctrine to comments upon the accused’s exercise of his right to remain silent. Accordingly, the judgment of conviction and sentence is reversed and the cause remanded for new trial.

BOOTH, WENTWORTH and THOMPSON, JJ., concur.

      . In view of the dispositive nature of this issue, the remaining points on appeal are not addressed.


author: BOOTH, Judge.

text:
    George PUGH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AM-464.
    District Court of Appeal of Florida, First District.
    Jan. 20, 1984.
    Rehearing Denied Feb. 29, 1984.
    Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

Appellant pleaded nolo contendere to two counts of attempted burglary of a dwelling, five counts of burglary, seven counts of grand theft, and possession of a firearm, reserving the right to appeal the trial court’s denial of his motion to suppress evidence seized in his bedroom. We affirm.

The only witness testifying for appellant at the suppression hearing was his brother, Larry Pugh. Appellant’s brother admitted he signed a consent to search form in the presence of appellant, but testified that he limited the search of the residence to his own room by virtue of a verbal statement that “it was all right to search [his] part of the house and what was in [his] brother’s room was his private stuff,” and that appellant objected to the officers’ entry into his room by stating, “Hey, man, don’t go in there. That’s mine.”

In contradiction to the testimony of appellant’s brother, Officer Mayton testified that he was present when Corporal Nix explained the consent form to appellant and his brother, and that neither of them voiced any objection. Furthermore, Officer Mayton, who initially participated in the search of appellant’s room, did not hear any objection made by appellant to any of the seven officers present, nor was one made directly to him. During the course of the search of appellant’s room, Officer Mayton obtained appellant’s written consent to search his vehicle, in which were found a pair of gloves believed to have been used in the burglaries.

Appellant contends that the trial judge should have granted the motion to suppress because a third party may not validly consent to a search where the person against whom the search is directed is present and objects thereto. Silva v. State, 344 So.2d 559 (Fla.1977); Lawton v. State, 320 So.2d 463 (Fla. 2d DCA 1975). Appellant’s statement of the law is correct but inapplicable to the case under consideration. In denying appellant’s motion to suppress, it is apparent that the trial judge weighed the credibility of Larry Pugh and Officer Mayton, and found in favor of the latter.

Appellant contends, however, that the State failed to prove Larry Pugh possessed common authority over, or other sufficient relationship to, the area searched, namely, appellant's bedroom, an element upon which the validity of third-party consent is dependent. We find this contention to be without merit. As pointed out by the Florida Supreme Court in Silva, supra at 563, cases concerning the question of joint dominion and control of the third party consenting “have generally been decided on the basis of the individual’s reasonable expectation of privacy in the area, whether others generally had access to the area, and/or whether the objects searched were the personal effects of the individual unavailable to consent.”

We conclude that the circumstances of this case support the trial court’s determination that the officers acted reasonably in relying on the consent, actual and apparent, for the search. Accordingly, the order of the trial judge denying appellant’s motion to suppress and the judgment of conviction are affirmed.

LARRY G. SMITH, and ZEHMER, JJ., concur.

      . The consent to search form read, in pertinent part, as follows:
      I, Larry Pugh, Freely and Voluntarily give permission to the Escambia County Sheriffs Department to search residence Apt. U-183 Moorings Apartments, property to be seized clothing and stolen property involved in burglaries which occurred 11-24-81.

      . United States v. Matlock, 415 U.S. 164, 171 at n. 7, 94 S.Ct. 988, 993 at n. 7, 39 L.Ed.2d 242 (1974):
      Common authority, of course, is not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, see Chapman v. U.S., 365 U.S. 610, 5 L.Ed.2d 828, 81 S.Ct. 776 (1961) (landlord could not validly consent to the search of a house he had rented to another), Stoner v. California, 376 U.S. 483, 11 L.Ed.2d 856, 84 S.Ct. 889 (1964) (night hotel clerk could not validly consent to search of customer’s room), but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.


author: WIGGINTON, Judge.

text:
    Anthony R. BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. AO-434.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.
    Michael E. Allen, Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellant was convicted of dealing in stolen property contrary to section 812.019, Florida Statutes (1981). On appeal he argues the trial court erred in denying his motion for judgment of acquittal where the evidence shows that appellant pawned the property he knew or should have known was stolen. We affirm.

Appellant admits that sufficient testimony was presented at trial to lead the jury to believe that appellant, at the time he pawned the property, knew or should have known the property was stolen. Rather, he moved for judgment of acquittal on the sole basis that his pawning the property did not amount to trafficking in stolen property as “trafficking” is defined in section 812.012(7)(a) and (b). The trial court disagreed and instructed the jury in language tracking that of sections 812.019(1) and 812.012(7)(a) and (b).

Section 812.012(7)(a) defines the term “traffic,” as used in section 812.019(1), broadly by utilizing the language “or otherwise dispose of such property.” Appellant would argue, however, that the pawning of stolen property does not amount to the “otherwise” disposing of that property, because a person pawning property does not relinquish ownership or control, but only immediate possession.

We do not take issue with appellant’s understanding of the nature and legal ramifications of pawn brokerage, or of his grasp of the definition of “to dispose.” We do, however, agree with the state’s argument that the question of title to pawned property is irrelevant to the issue of whether a person has trafficked in stolen property. As noted by the state, the crime of dealing in stolen property is complete upon the attempt. Ervin v. State, 410 So.2d 510 (Fla. 2d DCA 1981), aff'd in part, 435 So.2d 815 (Fla.1983). That is, a person violates section 812.019(1), if he either traffics in, “or endeavors to traffic in,” property he knows or should know was stolen. Moreover, to “traffic” means not only “[t]o sell, transfer, distribute, dispense, or otherwise dispose of such property,” section 812.012(7)(a) [emphasis added], but also “[t]o buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.” Section 812.012(7)(b) [emphasis added]. We hold the fact of appellant’s pawning the stolen property to be sufficient to raise a jury question as to appellant’s intent to “otherwise dispose” of the property. The trial court did not err in denying appellant’s motion for judgment of acquittal. Accordingly, the judgment and sentence of the court is AFFIRMED.

LARRY G. SMITH and NIMMONS, JJ„ concur.

      . (1) Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree, punishable as provided in ss. 775.082, 775.083, and 775.084.


author: THOMPSON, Judge. ERVIN, Chief Judge,

text:
    Shawn Kevin PARKER/Jeff C. Duckham and James Joseph Way mire, Appellants, v. STATE of Florida, Appellee.
    Nos. AP-197, AP-470.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.
    Rehearing Denied March 1, 1984.
    Robert Q. Williams and Christopher J. Smith, of Williams & Smith, Tavares, for appellant/Parker.
    Thomas W. Kurrus and Larry G. Turner of Law Offices of Larry G. Turner, P.A., Gainesville, for appellants/Duckman and Waymire.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   THOMPSON, Judge.

This is a consolidated appeal from judgments of guilt entered upon nolo conten-dere pleas made subsequent to the denial of the appellants’ motions to suppress wiretap evidence. Appellants contend that the wiretap evidence should have been suppressed because the authorization and the application for the wiretaps were defective, and the wiretap order was overbroad. We affirm.

It was agreed by the state and the appellants that the decision of this court on the Duckham-Waymire wiretap order is disposi-tive of the validity of the convictions of all three appellants.

Appellants contend the Duckham-Way-mire wiretap authorization was overbroad and unlawfully delegated the state attorney’s responsibility for wiretap applications to police officers, and the wiretap application was insufficient because it failed to state the authority upon which it was submitted or the identity of the person authorizing it. The wiretap authorization was signed by the state’s attorney, one of the persons authorized by law to sign authorizations for wiretap applications. See § 934.07, Fla.Stat. It authorized Police Officer Miles to make application for a court order authorizing the interception of wire or oral communications on a specified telephone number. In accordance with that authorization, Miles submitted his application and affidavit along with the authorization. The authorization and the affidavit and application were signed and sworn to on November 13, 1981, and both were filed before the circuit judge on November 13, 1981. The authorization and the application and affidavit were apparently filed as one document because only the authorization bears the judge’s notation that the document was filed in evidence before him. In any event, they were filed together at the same time. The circuit judge then entered a November 13, 1981 order authorizing the interception of wire or oral communications on the Duckham-Waymire telephone.

The wiretap authorization and the application and affidavit were filed together before the judge and sufficiently identified the state attorney as the person authorizing the application. The authorization could not be an overbroad and unlawful delegation of responsibility for authorizing wiretap applications because the detailed application and affidavit of Miles was submitted together with, and was apparently a part of, the authorization signed by the state’s attorney.

The wiretap order is a detailed three-page order complying with the limits of the authorization and with the law and it included a sufficiently specific statement of the types of communications that could be intercepted as proof of conspiracy to engage in the sale and possession of narcotics and dangerous drugs. Accordingly, the trial court’s refusal to suppress the wiretap evidence is AFFIRMED.

WIGGINTON, J., concurs.

ERVIN, C.J., specially concurs.

ERVIN, Chief Judge,

specially concurring.

The court’s opinion does not discuss appellants’ arguments regarding substantive defects in the application for the wiretap or reveal the factual context of the case. Although I concede that appellants have advanced substantial arguments supporting their appeal from the denial of their motion to suppress, I nevertheless concur in the affirmance because I consider the application taken as a whole demonstrates sufficient adherence to the statutory safeguards.

This case involves surveillance by law enforcement officers of occupants of a Gainesville residence suspected of dealing in controlled substances. The narcotics officers “tailed” appellant Duckham to his place of employment where undercover Officer Joll thereafter made Duckham’s acquaintance and engaged him in conversations relating to drugs. Later, following inquiries made by Joll to Duckham, Duck-ham advised him that he could obtain cocaine and gave him the phone number of the residence Duckham shared with appellant Waymire. Joll subsequently made tape-recorded telephone calls to Duckham on November 3, 5, 6 and 8 for the purpose of setting up a cocaine purchase. Joll went to the Duckham/Waymire residence on November 9 to complete the purchase, and while he was there, Duckham telephoned appellant Parker, who arrived shortly afterward with a one-quarter ounce sample of cocaine. Upon Joll’s approval of the sample and his display of the money to Duckham, Parker left and returned several minutes later with another half-ounce of cocaine. During this visit, Joll wore a body bug which transmitted the transaction to officers outside who observed Parker’s arrivals and departures from the Duck-ham/Waymire residence, but who made no attempts to follow Parker. Four days later, the officers, based on the transaction of November 9, applied for and received an order allowing a wiretap to be placed on the telephone at the Duckham/Waymire residence.

On November 23, Joll made a second controlled buy from Duckham at his residence under circumstances similar to those before, except that during the second buy, police officers were standing by at Parker’s house when Duckham telephoned Parker. These officers followed Parker to another residence which later was determined to belong to one Leavitt, then to Duckham’s, then back again to Leavitt’s, and finally to Duckham’s. During the first buy, Joll was not introduced to Parker or others present in the house, but during the second buy, Parker did introduce himself to Joll. The officers were particularly interested in making a case against Waymire, who they had learned from police records had been arrested previously for marijuana violations. Consequently, at a time Joll knew Duckham to be out of town, he telephoned the Duckham/Waymire residence and prevailed upon Waymire to sell him cocaine. Although the sale occurred, no recording or surveillance was made other than the wiretap recording of Joll’s phone call to Way-mire. On the basis of the Duckham/Way-mire wiretap and the surveillance of Parker on November 23, a wiretap was obtained for Parker’s phone, and, based on a phone call from Parker’s phone to Leavitt during a later controlled buy and surveillance of Parker’s receipt of cocaine from Leavitt’s house, a wiretap was then placed on Leav-itt’s phone.

The state has stipulated that if the Duck-ham/Waymire wiretap is invalid, then the Parker and Leavitt wiretaps are likewise invalid. Appellants contend that the application for the wiretap on the Duck-ham/Waymire telephone was deficient in providing a full and complete statement about other investigative procedures as required by Section 934.09(l)(c), Florida Statutes (1981).

Chapter 934, Florida Statutes, authorizing interception of wire or oral communications, is a statutory exception to the federal and state constitutional provisions relating to a right to privacy and therefore must be strictly construed and narrowly limited in application. In Re Grand Jury Investigation, 287 So.2d 43, 47 (Fla.1973). The statutory requirement is imposed as a safeguard to ensure against resort to wiretapping in situations where traditional techniques would sufficiently expose the crime, although it is not necessary to show a comprehensive exhaustion of all possible techniques. Daniels v. State, 381 So.2d 707 (Fla. 1st DCA 1979).

Appellants specifically challenge the representation in the application that “moving surveillances have had only a limited investigative value up to this point in the investigation.” While this item in the application’s list of other investigative procedures is admittedly conclusory and non-factual, when it is taken into consideration with the other seven techniques also listed in the application that had been tried without success or were likely to fail, it is evident that this wiretap authorization was not routinely requested as an initial step in the criminal investigation. Scheider v. State, 389 So.2d 251, 252 (Fla. 1st DCA 1980). Appellants contend that use of moving surveillance and other untried methods would have precluded the need for a wiretap if they had indeed been attempted. For us to so conclude would amount to a judgment call on the facts, and since the trial court’s ruling on the motion to suppress comes to this appellate court clothed with a presumption of correctness, we should interpret the evidence, and all reasonable inferences and deductions capable of being drawn therefrom, in the light most favorable to sustain the trial court’s conclusion. Segal v. State, 353 So.2d 938, 939 (Fla. 3rd DCA 1978). For this reason, I agree with the majority’s decision to affirm as to this point assailing the application.

The majority’s opinion did address appellants’ argument regarding the absence of the identity on the application itself of the officer authorizing the application required by section 934.09(l)(a). Although I agree that we should also affirm as to this issue, I would only add that, in recognizing the dangers inherent in this investigative technique, the statutory requirements should be strictly construed. In this case, the submission of the application, together with the authorization and the filing of the two documents before the circuit judge, effected the safeguard intended by the statute that such applications be submitted only upon the proper authority. Under such circumstances, I agree to affirm.

      . Section 934.09(l)(a), (c) states:
      (1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:
      (a) The identity of the investigative or law enforcement officer making the application and the officer authorizing the application; ******
      (c) A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;

      . See note 1, supra.


author: JOANOS, Judge. SHIVERS, Judge, MILLS, Judge,

text:
    Harold R. PAPE, II, Appellant, v. Janet M. PAPE, now Janet M. Lockwood, Appellee.
    No. AP-402.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.
    Rehearing Denied March 1, 1984.

      G. Frank Godfrey of Wood, Godfrey, Carlin & Atter, Jacksonville, for appellant.
    Daniel 0. Palmer, Orange Park, for ap-pellee.
    Before ERVIN, C.J., and MILLS, BOOTH, SMITH, SHIVERS, WENT-WORTH, JOANOS, THOMPSON, WIG-GINTON, NIMMONS and ZEHMER, JJ.
   EN BANC OPINION

JOANOS, Judge.

Harold R. Pape (Rick) appeals a modification of his and Janet Pape’s (Janet) final judgment of dissolution granting custody of his minor child (Belinda), now nine years old, to Randall Lockwood (Randall), Janet’s husband, Belinda’s stepfather.

Rick’s and Janet’s marriage was dissolved in January, 1977, with Janet awarded custody of Belinda, then three years of age, and Rick ordered to pay child support. In July, 1979, Janet and Randall were married and Belinda resided with them in Jacksonville, Florida. Janet was killed in an automobile accident in October, 1981. Belinda has resided in Randall’s home since Janet’s death, along with another minor child born to Janet and Randall in April, 1980. Randall’s present wife, whom he married in May, 1982, also now resides in the home. After Janet’s death, Rick, then married and living in California, petitioned for modification of the final decree to gain custody of Belinda as her natural father. Following Randall’s petition for an investigation and social study, the trial court ordered such an investigation to be conducted by the Department of Health and Rehabilitative Services (HRS). HRS filed a report citing the loving relationship and excellent care provided in Randall’s home and the suitable home and stable environment that Rick, his present wife and three children (her two sons by a previous marriage and one daughter of Rick’s and hers) could provide in California. HRS concluded that custody of Belinda should be returned to her legal and biological father, Rick. After a hearing, which was neither recorded nor reduced to a statement of evidence, the trial court denied Rick’s petition for custody, awarded custody to Randall and ordered Rick to pay child support, citing that it would not be in Belinda’s best interest to place custody with her natural father.

As pointed out in the recent opinion of In Re The Guardianship of D.A. McW., 429 So.2d 699 (Fla. 4th DCA 1983), in the usual custody case between two parents, where both are fit and have equal rights to custody, the “best interest of the child” test controls, but in a contest between a parent and someone else, natural parental rights, as well as the child’s welfare, must be considered. Citing, State ex rel. Sparks v. Reeves, 97 So.2d 18 (Fla.1957), the Fourth District Court of Appeal found that a “parent’s natural right to custody must give way only when the child’s welfare requires it or the parent is in some way disabled.” D.A. McW., at 702. See also, Johnson v. Johnson, 434 So.2d 972 (Fla. 5th DCA 1983).

The Supreme Court of the United States has stated that its decisions “... have by now made plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection’ ” Lassiter v. Department of Social Services, 452 U.S. 18, 27,101 S.Ct. 2153, 2159, 68 L.Ed.2d 640 (1981) quoting Stanley v. Illinois, 405 U.S. 645, at 651, 92 S.Ct. 1208, at 1212, 31 L.Ed.2d 551 (1972).

Generally, in the absence of a finding of abandonment, or that the natural parents are unfit, strangers, even grandparents, may not be awarded permanent custody of children, where the natural parents have not relinquished their rights. Besade v. Besade, 312 So.2d 484 (Fla. 3rd DCA 1975). Although the circumstances of particular cases such as in Gorman v. Gorman, 400 So.2d 75 (Fla. 5th DCA 1981), and Scott v. Singleton 378 So.2d 885 (Fla. 1st DCA 1979), may well justify an award of custody to a non-parent, the mere fact of temporary physical possession by a stepparent does not in itself furnish grounds for permanent deprivation of parental custody. See, In Interest of H., 320 So.2d 868 (Fla. 4th DCA 1975); State ex rel Sparks v. Reeves, 97 So.2d 18 (Fla.1957); and Wray v. Williams, 352 So.2d 152 (Fla. 2nd DCA 1977). Parents have a natural and a legal right to the custody of their children, and, other things being equal, the court should award custody to a natural parent rather than one who is not a parent. 25 Fla.Jr.2d, Family Law, § 525. Award of custody to the father, where the mother had died, although the child was closer to its maternal grandparents — through circumstances mostly not of the father’s making — was held not error in Wise v. Brewster, 179 So.2d 882 (Fla. 1st DCA 1965). This court has held that in the absence of evidence disclosing that the best interests of children warranted the “drastic remedy” of depriving their natural father of the right to rear his children in his home, the trial court erred in awarding custody of minor children, whose mother had died, to their maternal grandmother. Behn v. Timmons, 345 So.2d 388 (Fla. 1st DCA 1977). Given a parent’s natural right to custody, fellowship and companionship of his offspring, Rick should not have been denied custody of his daughter, absent a determination that he is unfit or unqualified to have custody or that the welfare of the child requires denial of the father’s claim on that basis and provision for another custody arrangement.

We note apparent conflict in our decision with our prior opinion in Scott v. Singleton, 378 So.2d 885 (Fla. 1st DCA 1979) and for that reason have considered this case pursuant to the en banc provisions of Florida Rule of Appellate Procedure 9.331. We distinguish Scott on the facts of the two cases. Scott involved the granting of the minor children’s custody to the maternal grandmother who had raised the children for the most part over five years in her home. Here, there is no blood relation and Belinda had lived with her stepfather for three years when Janet met her untimely death. To the extent that the rationale of Scott may conflict with this opinion, we recede from Scott.

We note our awareness of appellee’s position that without a trial transcript or proper substitute we cannot resolve the underlying factual issues in this case “... so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternate theory.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150,1152 (Fla.1979). That is a principle of law with which we are familiar and which controls the appellate process. See Starks v. Starks, 423 So.2d 452 (Fla. 1st DCA 1982). However, the error that occurred in the proceeding below was not in the factual context of the case but in the "... misconception by the trial judge of a controlling principle of law .... ” Applegate, supra, at 1152. Thus, it is within our scope of authority to review the matter and finding error send it back to the trial court for the application of the correct principle of law.

Accordingly, the trial court’s grant of custody to Randall is REVERSED and this cause is REMANDED for the entry of a new order after the trial court’s consideration of the evidence in light of the rule announced in this opinion.

BOOTH, SMITH, WENTWORTH, THOMPSON, WIGGINTON, NIMMONS and ZEHMER, JJ., concur.

SHIVERS, J., dissents in separate opinion and ERVIN, C.J., concurs in SHIVERS dissent.

MILLS, J., dissents in separate opinion.

SHIVERS, Judge,

dissenting.

I respectfully dissent.

After the hearing, the trial court in its modification order rested its decision on both the evidence and the HRS report in determining that it would not be in the best interest of the minor child to place her in the custody of her father at this time:

... and the court having considered the evidence, together with the report of the Department of Health and Rehabilitative Services ....

The trial court further found that the child is receiving very good care in the home of her stepfather and is responding positively to the love and attention provided her.

This court was furnished no transcript of the hearing. We do not have the benefit of knowing what evidence the trial court considered in making its decision.

In Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), the appellate court was furnished no transcript. The Supreme Court, speaking through Justice Adkins, clearly stated:

In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error. The Ap-plegates correctly point to the lack of a trial transcript or a proper substitute as fatally flawing the appellate court’s ruling. The written final judgment by the trial court could well be wrong in its reasoning, but the decision of the trial court is primarily what matters, not the reasoning used.

Justice Adkins, in the Applegate decision, wrote that without a transcript the appellate court cannot conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. The court decided that the case should have been affirmed because the record brought forth by the appellant was not adequate to demonstrate reversible error:

The trial court’s imposition of a constructive trust could well be supported by evidence adduced at trial but not stated in the judge’s order or otherwise apparent in the incomplete, record on appeal. The question raised by Barnett Bank clearly involves underlying issues of fact. When there are issues of fact the appellant necessarily asks the reviewing court to draw conclusions about the evidence. Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal. The trial court should have been affirmed because the record brought forward by the appellant is inadequate to demonstrate reversible error.

In Starks v. Starks, 423 So.2d 452 (Fla. 1st DCA 1982), our court concluded that without a transcript we have no way of knowing how the trial court arrived at its decision. Starks at 453. We held in Starks that appellant has the burden of demonstrating error from the record which he must supply. Without a complete record we followed Applegate and the trial court. In the case sub judice the majority has apparently decided to kick over the traces. This seems unwise.

Since the appellant has not furnished us a full and complete record, we do not know why the trial judge found that “it would not be in the best interest of the minor child to place her in the custody of her father at this time.” The decision of the trial court carries with it the presumption of correctness on appellate review and should be affirmed.

The majority has written that the natural father should not be denied custody absent a determination that he is unfit or unqualified to have custody or that the welfare of the child requires denial of the father’s claim on that basis and provision for another custody arrangement.

The trial court appears to have determined just that when it found that it would not be in the best interest of the minor child to place her in the custody of her father at this time and ordered another custody arrangement.

I would affirm.

MILLS, Judge,

dissenting:

I dissent. I would affirm.

The proceedings before the trial court were not reported. No statement of the evidence has been filed. We have no record upon which a reversal can be granted.

The order appealed is presumed correct. There is no requirement that the trial court specify its findings in writing. It found that it was in the best interest of the child to award custody to the stepfather. There is neither fact nor law to refute this finding. No abuse of discretion is shown.

The majority holds that a natural parent is entitled to custody of a child over a nonparent unless found to be unfit or unless the welfare of the child requires another custody. The trial court here awarded custody to the stepfather because it was in the best interest of the child. Nevertheless, I have no real quarrel with this holding. Fitness and best interest or welfare are not inconsistent theories. A finding of fitness would usually include best interest or welfare and, on the other hand, a finding of welfare or best interest would usually include fitness. It seems to me that both must be considered. They go hand in hand. They are mutually inclusive. We should and must deal with substance, not semantics.

It appears to me that if the Scott case is factually distinguishable from this case, as agreed by the majority, it would be difficult to recede frpm the rationale of the Scott case, as is being done by the majority. This is inconsistent. This is impossible.

I also do not agree with the majority that upon remand the trial court shall consider the evidence in the light of the majority opinion and enter a new order. Because no record was made of these proceedings, I would remand to commence the proceedings anew and to base the new order on the new evidence.

To me the welfare of a child is much more important than the mere right of a natural parent to custody of the child. To assure the greatest potential for a healthy, happy and productive life, I would require that in child custody proceedings the prospective parent must prove fitness and welfare. Is this too much? Can we afford to do less? The answer is no.


text:
    Otis McMULLEN, Appellant, v. STATE of Florida, Appellee.
    No. AR-280.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.
    Steven L. Bolotin, Asst. Public Defender, and Lance Block, Legal Intern, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
   WIGGINTON, Judge.

Appellant was convicted of manslaughter and sentenced to fifteen years probation with one year of incarceration to be served in the Tallahassee Community Correctional Center. On appeal he argues that his conviction should be reversed because of the trial court’s error in failing to grant his motion for judgment of acquittal. We affirm.

Appellant was prosecuted for second degree murder for the shooting death of Mark Ehrbar who, along with appellant and several others, was present at a friend’s home in Wakulla County on July 20, 1982. While the women prepared dinner, several of the men began target shooting. The men, including appellant, had been drinking beer, though Ehrbar was intoxicated to the point of being unsteady on his feet. Ehrbar picked up a bottle, placed it on his head and asked appellant to shoot it off, which appellant did from a distance of approximately five to six feet. Another of the company, James Forehand, also placed a can on his head, and appellant shot it off. ’

The group then moved to the edge of the woods and resumed target shooting, but with appellant’s .22 calibre automatic Rug-er. Forehand was told by someone other than appellant to reload the Ruger, which was loaded by a clip. Forehand testified, “I started back to reload it. On the way, I passed a mudhole and fired the gun into it. I turned around and said that there was one other in there. I went on and started loading the clip. My wife come out. She called us in to eat. I laid the gun down on the trunk of the car and went in. They didn’t follow me .... ”

Because dinner was not quite ready, Forehand came back outside and began to reload the clip. He heard a shot and turned to see Ehrbar fall to the ground with a bullet wound in his forehead. Although Forehand testified that he thought the gun was empty when he laid it on the car, he explained that the gun could fire one time without the clip if a bullet remained in the chamber. He admitted that he could not remember whether the clip had first been removed before he fired into the mudhole, and that he had not checked the gun for remaining bullets. He also stated that ammunition had been lying next to the gun on the trunk when he was called in for dinner.

Kaye Forehand testified that Ehrbar had asked appellant to shoot the can off of his head, and then ran back about thirty feet while holding the can on his head in order “to make it harder.” She witnessed appellant carefully aiming the gun for several seconds before firing.

Appellant testified that he had thought the gun was not loaded after hearing it being fired into the mudhole, and therefore did not care how far Ehrbar backed up. Appellant admitted, however, that he had not checked the gun to confirm the fact that it was unloaded before firing it.

On these facts, the trial court was justified in denying appellant’s motion for judgment of acquittal as to manslaughter. The evidence was certainly sufficient to establish a jury question as to whether appellant was culpably negligent. Williams v. State, 336 So.2d 1261 (Fla. 1st DCA 1976). There is no question that the deliberate act of pointing a gun at another human being, especially one who is visibly intoxicated, amounts to an act in utter disregard for the safety of others, and one that appellant reasonably should have known was likely to cause death or great bodily injury. As was the case in McBride v. State, 191 So.2d 70 (Fla. 1st DCA 1966), appellant here “set the stage for the tragedy which ultimately followed (an accidental shooting) even though he may have had [no] intention of killing the decedent.” 191 So.2d at 71; see also Marasa v. State, 394 So.2d 544, 547 (Fla. 5th DCA 1981); O’Berry v. State, 348 So.2d 670 (Fla. 3d DCA 1977).

The conviction appealed is AFFIRMED.

LARRY G. SMITH and NIMMONS, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Silvio P. ZAFRA, Appellee.
    No. 81-474.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Paul Morris, Rosen, Pórtela, Bronis, An-gueira & Clay and William A. Clay, Miami, for appellee.

      Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   On Mandate of Supreme Court of the United States

PER CURIAM.

This cause is before us pursuant to the mandate of the Supreme Court of the United States in Florida v. Zafra, 462 U.S. —, 103 S.Ct. 3529, 77 L.Ed.2d 1382 (1983), which vacated our decision in State v. Zafra, 408 So.2d 745 (Fla. 3d DCA 1982), rev. denied, 418 So.2d 1281 (Fla.1982), and remanded the cause “for further consideration in light of United States v. Villamonte-Marquez, 462 U.S.-[, 103 S.Ct. 2573, 77 L.Ed.2d 22] (1983).” In that decision the Supreme Court held that U.S. Customs officials may, consistent with the Fourth Amendment, board a vessel located in waters having ready access to the open sea for the purpose of examining the manifest and other vessel documents under 19 U.S.C. § 1581(a) (1976), without any reasonable suspicion of prior wrongdoing.

We conclude that, for two reasons, Villa-monte-Marquez is inapposite to the present case. First, the vessel involved was boarded while located on land atop a boat trailer at the Crandon Park Marina in Miami. It was obviously not therefore in “waters offering ready access to the open sea,” an essential requirement of the decision. See 462 U.S. at —, 103 S.Ct. at 2580, 77 L.Ed.2d at 31.

Second, and probably more important, the boarding and subsequent search of this land-situated vessel was in no sense undertaken as a document inspection. As the eleventh circuit has recently, and we think correctly, stated in United States v. Herrera, 711 F.2d 1546 (11th Cir.1983):

In United States v. Villamonte-Marquez, — U.S. -, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), the Supreme Court held that no suspicion is necessary to stop and board a vessel that is located in waters providing ready access to the open sea to conduct a document inspection pursuant to 19 U.S.C. § 1581(a). The Court also made clear that Customs officers are not precluded from using document check authority simply because they suspect drug smuggling or other illegality on board. — U.S. at -, n. 3, 103 S.Ct. at 2577 n. 3. However, nothing in that opinion suggests that reasonable suspicion is not required when the Customs officers’ conduct, objectively assessed, indicates they did not stop and board the vessel to make a document inspection, [e.s.]

711 F.2d at 1554 n. 13. The emphasized observation plainly applies here. No one was even on the vessel at the time of the boarding; no effort was made by the Customs officer while aboard to inspect vessel documents or examine the manifest; and the entire search was for the admitted purpose of discovering whether marijuana was concealed on the vessel.

Neither Villamonte-Marquez nor any other decision of the United States Supreme Court or the courts of Florida has ever authorized such a search without a prior showing of founded suspicion, one which the state concedes was not made in this case. See State v. Zafra, supra. Indeed, Villamonte-Marquez was careful to hold that the suspicionless stop of a vessel located in waters providing ready access to the open sea for a vessel document check, while constitutionally valid, did not thereafter authorize a general search of the vessel — as was conducted in this case — because the stop

involves only a brief detention where officials come on board, visit public areas of the vessel, and inspect documents. “Neither the [vessel] nor its occupants are searched, and visual inspection of the [vessel] is limited to what can be seen without a search.” (citations omitted)

462 U.S. at -, 103 S.Ct. at 2581, 77 L.Ed.2d at 33.

For these reasons, we hold that our previous decision is unaffected by Villamonte-Marquez. The order below is therefore again

Affirmed.

      . Footnote 2 to the opinion specifically states:
      Section 1581(a) provides Customs officials with authority beyond boarding for document inspections. In this case, however, we are concerned only with the more narrow issue.

        United States v. Villamonte-Marquez, 462 U.S. at -n. 2, 103 S.Ct. at 2575 n. 2.

      . The court at the outset of its opinion states:
      Congress has provided that “[a]ny officer of the customs may at any time go on board of • any vessel ... at any place in the United States ... and examine the manifest and other documents and papers ... and to this end may hail and stop such vessel ... and use all necessary force to compel compliance.” 19 U.S.C. § 1581(a) (1976). We are asked to decide whether the Fourth Amendment is offended when Customs officials, acting pursuant to this statute and without any suspicion of wrongdoing, board for inspection of documents a vessel that is located in waters providing ready access to the open sea.

        United States v. Villamonte-Marquez, 462 U.S. at -, 103 S.Ct. at 2575 (footnotes omitted). The Court’s decision answers this question in the negative.

      .See also, United States v. Whitmire, 595 F.2d 1303 (5th Cir.1979), in which Customs officers boarded a docked vessel after checking its documents ashore; in Herrera, the court stated that
      [i]n these circumstances, neither border crossing authority nor section 1581(a) document and safety check authority was available to render the boarding and search reasonable under the fourth amendment.
      711 F.2d at 1553.


text:
    LUFTHANSA GERMAN AIRLINES CORPORATION, Appellant, v. Mr. and Mrs. Matthew T. MELLON, Appellees.
    No. 82-1044.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    David S. Wieder, Miami, for appellant.
    Shutts & Bowen, Karen H. Curtis, Phillip Newcomm and Gregory P. Borgognoni, Miami, for appellees.
    Before BARKDULL and HUBBART and JORGENSON, JJ.
   PER CURIAM.

This is an appeal from a partial summary judgment determining the issue of liability in favor of the plaintiffs in an action filed below. We have jurisdiction to entertain this appeal. Art. Y, Sec. 4(b)(1), Fla. Const.; Fla.R.App.P. 9.130(a)(3)(C)(iv).

The plaintiffs Mr. and Mrs. Matthew T. Mellon brought suit in the trial court against the defendant Lufthansa German Airlines Corporation and another party. They sought recovery for the value of a piece of luggage which was allegedly lost while in the charge of the defendant airline during a trans-Atlantic air flight from Frankfurt, Germany to Miami, Florida. Certain discovery was taken in the action, and, based thereon, the plaintiffs made a motion for summary judgment on liability attaching thereto certain affidavits. The trial court heard and granted the motion-for partial summary judgment. The defendant airline filed a motion for rehearing and also sought the trial court’s leave to file a late affidavit which contained a facsimile airline ticket, different from that produced by the defendant during discovery, which ticket was allegedly the same as that used by the plaintiffs during their trans-Atlantic flight. The trial court' declined to consider the late-filed affidavit and denied the motion for rehearing. This appeal follows.

The defendant airline has presented a number of points on appeal, many of which are based on the late-filed affidavit which the trial court refused to consider below. These points have no merit as the trial court was well within its discretion in declining to consider this affidavit on the ground that it was untimely filed in violation of Fla.R.Civ.P. 1.510(c). Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla.1982), adopting, 381 So.2d 1164 (Fla. 5th DCA 1980); Stolzenburg v. Forte Towers South, Inc., 430 So.2d 558 (Fla. 3d DCA 1983). Beyond that, the balance of the defendant’s points on appeal fail to point out any genuine issues of material fact which would preclude a summary judgment on liability for the plaintiffs. The plaintiffs’ evidence in this case is entirely unrebutted, and the defense effort to create issues of fact within the plaintiffs’ own evidence amounts to nothing more than an attempt to conjure up insubstantial paper issues. Connolly v. Sebeco, Inc., 89 So.2d 482 (Fla.1956). The partial summary judgment under review is therefore

Affirmed.


text:
    STABINSKI AND FUNT, P.A., Appellant, v. Ruby BAUCOM, Appellee.
    No. 82-1597.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    Scherman & Zelonker and Regina Zelonker, Hialeah, Stabinski & Funt, Miami, for appellant.

      Paul S. Berger and Paul F. Clark, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

The final order under review is reversed and the cause is remanded to the trial court with directions to enforce the contingent fee contract herein, in this action below to enforce an attorney’s charging lien. See Baucom v. Baucom, 397 So.2d 347 (Fla. 3d DCA 1981), quashed in part on other grounds, 428 So.2d 1383 (Fla.1983), for the prior history of this case.

The contingent fee contract herein was voluntarily agreed to by the client with full knowledge of its provisions and consequences, reasonably compensated counsel for legal services actually performed, and produced no inequitable results. There was no basis for concluding, as the trial court did, that the contract was unconscionable, inequitable or contrary to public policy; the contract should have been enforced by the trial court. See In re Barker’s Estate, 75 So.2d 303 (Fla.1954); Salter v. St. Jean, 170 So.2d 94 (Fla. 3d DCA 1964).

Reversed and remanded.


author: HENDRY, Judge.

text:
    CEDARS OF LEBANON HOSPITAL CORP., Appellant, v. EUROPEAN X-RAY DISTRIBUTORS OF AMERICA, INC., and Saab-Scania, A.B., Appellees.
    No. 82-2643.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.

      Smathers & Thompson and John W. Keller, III, Miami, for appellant.
    Walton, Lantaff, Schroeder & Carson and Sally R. Doerner and Joan S. Buckley, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

Cedars of Lebanon Hospital Corporation appeals from the dismissal with prejudice of that portion of the fourth amended and supplemental complaint alleging a cause of action for breach of warranty and/or strict liability against Saab-Scania. For reasons more fully developed below, we affirm in part and reverse in part.

Appellant purchased two remote x-ray systems for use in its hospital. Appellee is a Swedish corporation which designed and manufactured the image systems and cut-film cameras for the x-ray equipment. The total remote x-ray system was assembled, and then distributed by European X-Ray Distributors of America, Inc. (“EXDA”). EXDA in turn sent the assembled x-ray system to Southeastern X-Ray Corp. (“SXC”). Appellant actually purchased the two systems from SXC. The total purchase price was $514,190.50.

Appellant alleges in its complaint that the various components, when assembled, are internally incompatible because they are designed for different electrical currents with different cycles. As a result, the system is subject to constant and continuous breakdowns. The x-ray tubes and generators overheat when used for rapid exposures. As for the components manufactured by appellee, specifically the cut-film cameras, appellant alleges that these cannot be made to work at all. The image produced by the t.v. imaging system is of poor quality. The serial film changer, which is supposed to allow automatic rapid film changing, jams. In short, appellant alleges that the equipment is totally unfit for the intended purpose of taking diagnostic x-rays.

Appellee responds by stating that even if all of the above is true, there can be no cause of action for breach of express or implied warranties because there is no privity between the parties. The purchase contract was between appellant and SXC. Ap-pellee also argues that there can be no cause of action for strict liability because no person suffered injuries as a result of the defective equipment, nor was there damage to any property other than to the x-ray systems themselves.

The relevant analysis must focus briefly on the history of strict liability and implied warranties, the culmination of which is reflected in the decision of the Florida Supreme Court in West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), and in the adoption of the Uniform Commercial Code, Chapters 671-680, Florida Statutes (1981).

The theory that there must be contractual privity before an action can lie for injuries suffered as a result of dangerous and defective products placed on the market has been the bane of judicial existence since the doctrine was first enunciated in Winterbottom v. Wright, 10 Meeson & Welsby 109, 152 Eng.Rep. 402 (1842). This requirement, which had the effect of reducing the number of people able to file suit when they were injured, was perceived immediately as being harsh and unjust. Courts began to devise ways to circumvent the doctrine while still recognizing its validity. Cf. Thomas v. Winchester, 6 N.Y. 397, 57 Am.Dec. 455 (1852) (belladonna, a poison, mislabeled by manufacturer, who in turn sold it to a druggist, who in turn sold it to a customer; customer allowed to recover from manufacturer); MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916) (J. Cardozo writing decision that when nature of product is such that it is reasonably certain to place persons in peril when negligently made, liability attaches irrespective of contract); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960) (implied warranty of fitness for a particular purpose arises between manufacturer and ultimate purchaser when manufacturer puts a new automobile in the stream of trade and promotes it to the public). All jurisdictions eventually adopted exceptions to the privity requirement if the product was a food or drug, a dangerous instrumentality, or inherently defective.

Florida followed this universal trend of receding from the requirement of privity when injuries were caused by defective products. Cf. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920) (dangerous instrumentality); Blanton v. Cudahy Packing Co., 154 Fla. 872, 19 So.2d 313 (1944) (tainted food); Hoskins v. Jackson Grain Co., 63 So.2d 514 (Fla.1953) (mislabeled grain); Matthews v. Lawnlite Co., 88 So.2d 299 (Fla.1956) (inherent defect). By 1965, the development in the law of implied warranty reached a point where this court could state that “we conclude that privity no longer obtains in an implied warranty suit by a consumer against a manufacturer.” Bernstein v. Lily-Tulip Cup Corp., 177 So.2d 362, 364 (Fla. 3d DCA 1965), aff'd, 181 So.2d 641 (Fla.1966). With that statement, it appeared that the doctrine of privity was dead in Florida, at least with regard to suits to recover for personal injuries caused by defective products. When the Uniform Commercial Code was adopted in Florida, Chapter 65-254, Laws of Florida, the debate began again, focusing on whether the Code, with its emphasis on dealings between “buyers” and “sellers”, intended to impose once more the absolute stricture of privity. Without a clear statement from the Florida Legislature, however, that by adopting the Uniform Commercial Code it intended to abrogate all of the common law exceptions to the doctrine of privity, cf. Arias v. State Farm Fire & Casualty Co., 426 So.2d 1136 (Fla. 1st DCA 1983), courts have refused to state that the pre-Code cases are no longer valid. Cf. Ford Motor Co. v. Pittman, 227 So.2d 246 (Fla. 1st DCA 1969), cert. denied, 237 So.2d 177 (Fla.1970), cited with approval in West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976). Finally, strict liability in tort was adopted by this state in West v. Caterpillar Tractor Co., Inc., supra. The Florida Supreme Court adopted the language of section 402A, Restatement (Second) of Torts in West and held that strict liability would be imposed when a manufacturer places a product on the market, knowing it is to be used without inspection for defects, which product proves to have a defect which causes an injury to a human being. Strict liability may be imposed for damages to property also when a defective product causes the damage. Cf. Adobe Building Centers, Inc. v. Reynolds, 403 So.2d 1033 (Fla. 4th DCA), rev. dismissed, 411 So.2d 380 (Fla.1981). Strict liability eliminates privity as a doctrinal barrier to filing suit against a manufacturer of a defective product. The language in West and subsequent cases, however, convinces us that strict liability should be reserved for those cases where there are personal injuries or damage to other property only. We therefore affirm the trial court’s granting the motion to dismiss as to the count alleging a cause of action in strict liability.

At the same time as the courts were attempting to circumvent the strict confines of the privity requirement in personal injury cases, another line of cases developed which also abrogated the necessity for privity in a contractual relationship. In A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973), the Florida Supreme Court held that a third party general contractor, who may foreseeably be injured or [who] sustained an economic loss proximately caused by the negligent performance of a contractual duty by an architect, has a cause of action [in negligence] against the alleged negligent architect, notwithstanding the absence of privity. Id. at 402. See also Naranja Lakes Condominium No. One, Inc. v. Rizzo, 422 So.2d 1080 (Fla. 3d DCA 1982); Drexel Properties, Inc. v. Bay Colony Club Condominium, Inc., 406 So.2d 515 (Fla. 4th DCA 1981), rev. denied, 417 So.2d 328 (Fla.1982); Highlands County School Board v. K.D. Hedin Construction, Inc., 382 So.2d 90 (Fla. 2d DCA 1980); Parliament Towers Condominium v. Parliament House Realty, Inc., 377 So.2d 976 (Fla. 4th DCA 1979); Navajo Circle, Inc. v. Development Concepts Corp., 373 So.2d 689 (Fla. 2d DCA 1979); Luciani v. High, 372 So.2d 530 (Fla. 4th DCA 1979); Probert, Negligence & Economic Damage: The California-Florida Nexus, 33 U.Fla. L.R. 485 (1981). These cases involve only the negligent performance of a contract for professional services. These cases are interesting as another example of the corn-píete abrogation of the privity requirement in a contractual context.

A third line of cases allowed an ultimate purchaser to sue a manufacturer for damages for breach of implied warranty of fitness for a particular purpose when there was only economic loss and no privity. Manheim v. Ford Motor Co., 201 So.2d 440 (Fla.1967); Chrysler Corp. v. Miller, 310 So.2d 356 (Fla. 3d DCA 1975); Rehurek v. Chrysler Credit Corp., 262 So.2d 452 (Fla. 2d DCA), cert. denied, 267 So.2d 833 (Fla.1972). The courts in both Miller and Rehurek based their decisions on the language of sections 672.315 and 672.316, Florida Statutes; that is to say, on the language of the Uniform Commercial Code. In so doing, the court in Rehurek stated:

When a purchaser answers the inducements made in the tremendous advertising campaigns carried on by the automobile industry and purchases a new automobile, he has the right to expect the automobile to perform properly and as represented. If it does not, through no fault of his, it appears to us that he should be allowed to seek redress.

Id. at 456. These cases take the philosophy of Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), and expand it to validate actions for damages which a purchaser suffers when he is induced to buy the manufacturer’s product and the product turns out to be worthless. However, it is clear that there remains an abundance of uncertainty about the degree to which privity is required to maintain a breach of warranty action by an ultimate purchaser against a manufacturer where the only damages are those for loss of bargain. While it is incorrect to state that there is no cause of action for economic damages under a breach of warranty theory, courts and jurisdictions differ as to when such a cause of action will be allowed and under what circumstances. Cf. L. Frumer & M. Friedman, Products Liability, vol. 2 (1983); R. Hursh & H. Bailey, American Law of Products Liability, vols. 1 & 2 (2d ed. 1974).

Whatever the outer limits of these cases are, the above discussion indicates that there is no good reason for us to adopt a strictly literalist adherence to the doctrine of privity. Nor is it necessary for us to push beyond the outer limits of the doctrine as developed thus far and hold that there is no requirement of privity when an ultimate purchaser has economic damages only from a defective product. The instant case has additional facts which make resolution of that issue unnecessary. Appellant’s fourth amended and supplemental complaint alleges that sales representatives from appellee manufacturer called upon appellant and made direct representations that the equipment was very advanced and “state of the art”, that the equipment produced a very high quality diagnostic t.v. image, that it was the very finest remote x-ray equipment available, and that the equipment was capable of handling the high volume hospital use for which it was needed. Appellant further alleges that it was shown samples of prior models and told the new model would perform even better. It also alleges that it relied on appellee’s representations and inducements when it decided to purchase the two remote x-ray systems. It seems fundamentally unfair, and anomolous in the extreme, to allow the manufacturer to hide behind the doctrine of privity when the product, which it induced the purchaser to buy, turns out to be worthless. It also seems absurd, under these circumstances, to find that the appellant has recourse against the appellee manufacturer only when the x-ray equipment injures someone. Requiring the purchaser to go against the seller, who must proceed in indemnification against the distributor, who must proceed against the manufacturer, is wasteful and inefficient. We find, therefore, that appel-lee’s conduct, if proven, created both an express warranty and an implied warranty of fitness for a particular purpose under sections 672.313 and 672.315, Florida Statutes 1981). Sections 672.714 and 672.715 provide the measure of damages for the breach of these warranties.

We affirm the trial court’s dismissal of the count of the fourth amended and supplemental complaint alleging a cause of action for strict liability against appellee. We reverse the trial court’s dismissal of the count alleging a cause of action for breach of express and implied warranties against appellee manufacturer. We remand for proceedings not inconsistent with this opinion.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . In ruling on a motion to dismiss, the trial court is confined to the allegations within the four corners of the complaint, must accept these allegations as true, and may not speculate as to what the true facts may be. Emile v. Florida Power & Light Co., 426 So.2d 1152 (Fla. 3d DCA 1983).

      . For further analysis of the West decision and a greater history of the development of products liability law in Florida, see Parks, Products Liability, 33 U.Miami L.R. 1185 (1979) and Comment, Products Liability in Florida Under Section 402A: New Language Or New Law?, 29 U.Fla. L.R. 398 (1977).

      . Appellee appears to rely upon Continental Insurance Co. v. Montella, 427 So.2d 796 (Fla. 4th DCA 1983) for the proposition that there is no cause of action in Florida against a manufacturer for breach of an implied warranty when the only damages are those for economic losses. Montella involved a boat engine manufactured in 1966 and purchased by Montella in 1973. In 1975 water started leaking into the engine. In the process of repairing the engine, the mechanic found that a main bearing bolt was broken. Montella sued for the cost of repairs plus lost profits. Both parties agreed that the broken bolt was not the cause of the water leakage and that the bolt did no damage to the engine. The trial court allowed recovery on a theory of strict liability. The appellate court correctly reversed, holding that to do otherwise would impose upon a manufacturer a warranty for materials and workmanship unlimited in time. Montella does not address the issue of what happens when, as here, a purchaser buys brand new equipment which does not work properly and cannot be made to work properly.

      . We wish to emphasize that we are focusing on the direct contacts between the manufacturer and the ultimate purchaser/consumer in finding that privity exists in this case. Had there been no direct contact between the two parties, appellee's contention that there was no privity, and thus no liability for breach of warranties, would be correct. It is the direct contacts which create the express and implied warranties under sections 672.313 and 672.315, Florida Statutes (1981).


text:
    PAN AMERICAN WORLD AIRWAYS, INC., Appellant, v. CONTINENTAL NATIONAL BANK OF MIAMI, Appellee.
    No. 83-316.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Rehearing Denied Feb. 29, 1984.
    Oliner & Oliner, Jacob Oliner, New York City, and Norman I. Segal, Miami, for appellant.
    Greenberg, Traurig, Askew, Hoffman, Lipoff & Quentel and Kendall B. Coffey, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Pan Am is a member of the Air Transport Association of America, one of whose functions is to appoint travel agents for its member carriers and to provide these travel agents with printed forms for flight tickets and other documents connected with air travel and related services. In this regard, travel agents are given miscellaneous charge orders (MCO’s) which may be issued by them for services other than air transportation and are drawn on a member airline by embossing the carrier’s and travel agent’s validating plates.

Eight MCO’s bearing the proper validating plates were issued by defunct travel agents and delivered to Roadway International. That company deposited them in its account at Continental Bank. The bank initiated the collection process against Pan Am. Proceeds in excess of $82,000 were paid by Pan Am to the account of Roadway even though the airline had previously been notified of the cancellation of the agencies. The instant suit by Pan Am against Roadway and Continental Bank seeks the return of those sums. As to Continental, Pan Am asserted a breach of warranty under sections 674.207(1) and (2), Florida Statutes (1981), and fraudulent misrepresentation as to the warranties. Pan Am appeals from a summary judgment in favor of Continental Bank. We affirm.

The warranty of good title found in section 674.207(1) is limited to a finding that the item was presented for payment with no forged endorsements, § 674.207, Fla.Stat. (1981); Sun ’N Sand, Inc. v. United California Bank, 21 Cal.3d 671, 582 P.2d 920, 930, 148 Cal.Rptr. 329, 339 (1978); Union Bank of Benton, Arkansas v. First National Bank in Mt. Pleasant, Texas, 621 F.2d 790 (5th Cir.1980); and, contrary to Pan Am’s contention, does not extend to impose liability on a bank where the item is issued by an unauthorized agent. Since, in the present ease, Pan Am does not maintain that anyone has forged the endorsement of the payee, Roadway, and it is admitted that the named payee did receive the proceeds of Pan Am’s payment on the item, we agree with the trial court that the appellant’s claim must fail as a matter of law.

Finding no merit in the other points on appeal, we affirm the summary judgment in favor of Continental Bank.

      . In fact, there is no endorsement by Roadway.