Linder, Larry C.

English

University of Miami School of Law

University of Miami Law Review Volume 27 Number 3 Volume 27 Numbers 3-4 (Spring & Summer 1973) Article 11 7-1-1973 Conflict Certiorari Jurisdiction and Contracts as Told By the Supreme Court of Florida Larry C. Linder Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Larry C. Linder, Conflict Certiorari Jurisdiction and Contracts as Told By the Supreme Court of Florida, 27 U. Miami L. Rev. 504 (1973) Available at: https://repository.law.miami.edu/umlr/vol27/iss3/11 This Case Noted is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXVIIshould consider creating a hybrid between the copyright and patentstatutes in order to solve some of the above mentioned problems. 9 Aspeedy registration process coupled with a shorter period of monopolywould encourage public disclosure of programs without tying up newdevelopments in the industry. If infringement protection could be grantedto the holder of this quasi-patent while still leaving some leeway forindependent creation by another, production costs for small one-of-a-kindprojects could be held to a minimum because prior art searches to avoidinfringement liability would not have to be made. This is a touchy area.Too much leeway for independent creation could preclude any degree ofprotection against infringement, while not enough could raise costs byrequiring a prior art search before any attempt to create a program forany purpose.Whatever Congress' final solution is, it should act quickly. The com-puter industry affects almost every kind of industry and business in thiscountry.7° A system of protection for software that would cut costs andincrease productivity in that industry would therefore tend to have thesame effect on costs and productivity in general. Given the present stateof the economy, such a result would seem to be desirable.ERIC COHENCONFLICT CERTIORARI JURISDICTION AND CONTRACTSAS TOLD BY THE SUPREME COURT OF FLORIDAThe vendor, Kendel, brought an action against the broker, Pontious,and the purchaser, Fernandez, for specific performance of an allegedcontract for the sale of land. The alleged contract, "a deposit receipt,"which contained a provision that the contract would be binding whensigned by both parties or their agent, was prepared and signed by the69. Perhaps a compulsory licensing system, similar to that used for phonographrecords, could be established using a licensing organization similar to A.S.C.A.P.See 17 U.S.C. § k(e) 1964); U.S. COPYRIGHT O FICE, REGISTER OF COPYRIGHTS,SUPPLEMENTARY REPORT ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW:1965 REVISION BILL (Comm. Print 1965).Another possibility is a broader type of copyright protection such as theGerman system which protects all intellectual creations containing an element ofindividuality, even if they are intangible or imperceptible to humans. See Ulmer,Der Urheberschutz wissenschajtlicher Werke unter besonderer Berucksichtigungder Programme electronischer Rechenanlagen, 1967 BAYERISCuE AKADEMm DERWISSENSCHAFTEN, SITZUNGSBERICHTE 1. But see Note, supra note 149, at 1551.A third alternative would be to establish "petty patent" protection for software,similar to the German "Gebrauchsmuster," requiring a lesser showing of noveltythan the present patent law standard and extending rights for a shorter period oftime. See Stedman, Trade Secrets, 23 OHIO ST. L.J. 4, 32-33 (1962).Id. at 392 n.170.70. See generally 54 CORNELL, note 7 supra; 68 COLUMBIA, note 7 supra; and 81HARVARD, note 1 supra.19731 CASES NOTEDdefendant-purchaser. It was then mailed to the plaintiff-vendor's attorney1who approved and then forwarded it to Kendel. Kendel signed and re-turned it to the attorney's office. However, before it was forwarded tothe purchaser, the purchaser dispatched a telegram of revocation followedby a letter of revocation bearing the same date as the telegram. Severaldays later the vendor's attorney notified the purchaser by letter that"the revocation of January 17 had been ineffective because the DepositReceipt agreement.., had been executed2 by KENDELS [sic] on Janu-ary 16 .... ,a The trial court, in an apparent rejection of this argument,held that "'[a]cceptance must be communicated to the offeror,' ,4 andthe offer may be revoked if notice of the revocation is received by theofferee prior to acceptance. On direct appeal, this decision was adoptedby the Court of Appeal, Third District.5 On petition for certiorari basedon an alleged "direct conflict" between the the district court's decisionand Strong & Trowbridge Co. v. H. Baals & Co., a prior decision of theSupreme Court of Florida,7 the supreme court held, writ discharged: Nojurisdictional direct conflict existed since the supreme court in Strong"was not concerned with the question of whether the actual acceptancemust be communicated to the offeror prior to an effective revocation."Kendel v. Pontious, 261 So.2d 167 (Fla. 1972).The supreme court's refusal to exercise conflict jurisdiction, under1. The deposit receipt mailed to the vendor's attorney was accompanied by a notestating that, "'Mr. Kendell [sic] (the seller) has verbally accepted but desired you to checkthe contract over before signing.'" Kendel v. Pontious, 261 So.2d 167, 170 (Fla. 1972)(dissenting opinion).2. The pertinent provision of the deposit receipt specified that: "'[Tlhis contract shallbe binding on both parties . . . when this contract shall have been signed by bothparties . . . .'" Id. at 168.3. Brief for Respondent at 5, Kendel v. Pontious, 261 So.2d 167 (Fla. 1972).4. Kendel v. Pontious, 244 So.2d 543, 544 (Fla. 3d Dist. 1971). The text of the hold-ing follows:Since the offer to purchase was transmitted to the seller by mail, if the offer orcontract does not otherwise provide, it will be implied that acceptance would beby mail. In Morrison v. Thoelke [Fla. App.], 155 So.2d 889, the Florida courtsadopted the 'deposited acceptance rule' under which acceptance becomes effectiveas of date of deposit in the mail. Acceptance must be communicated to the offerer.Where an offer has not been accepted by the offeree, the offeror may revoke theoffer provided the communication of such revocation is received prior to acceptance.33 Fla. Jur. 365, Tucker v. Gray [82 Fla. 351], 90 So. 158, Montane vs. Bush[Fla. App.], 167 So.2d 884.5. Id. at 543.6. The Constitution of Florida authorizes discretionary review of appellate court deci-sions by the following language:The supreme court may review by certiorari any decision of a district court ofappeal . .. that is in direct conflict with a decision of another district court ofappeal or of the supreme court on the same point of law ....FLA. CONST. art. V,. § 4(2).7. Strong & Trowbridge Co. v. H. Baars & Co., 60 Fla. 253, 54 So. 92 (1910) [here-inafter cited as Strong]. The asserted conflict was with the following rule of law appearingin Strong:The acceptance of an offer, to result in a contract, must be: (1) Absolute andunconditional; (2) identical with the terms of the offer; and (3) in the mode, atthe place, and within the time expressly or impliediy required by the offer.Kendel v. Pontious, 261 So.2d 167, 169 (Fla. 1972), citing Strong.UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXVIIthe facts presented, is puzzling, if not disappointing. The oft-stated pur-pose of discretionary review of district court of appeal decisions is toprovide uniformity in the law.' However, this purpose has evidently beenoverlooked by the supreme court in the disposition of this case.The supreme court has on various occasions stated the principalsituations in which "direct conflict" arises. These situations occur when(1) a district court of appeal announces a rule of law which conflictswith a rule9 previously enunciated by the supreme court'0 or (2) a dis-trict court of appeal applies a rule of law in a case involving substantiallythe same controlling facts as a prior supreme court case, but obtains adifferent result"" or (3) a district court misapplies the cases cited foraffirmance of the trial court's decision 2 or (4) a district court decisionhas made the law "'unclear, if not in conflict.' "13 Even a cursory exami-nation reveals that the third district court's decision falls within three ofthe four conflict situations mentioned.The first and fourth conflict situations appear from a comparison ofthe rule pronounced in Strong4 with the rule in Kendel. The unavoidableimplication of the principle enunciated in Strong is that a contract resultsfrom an acceptance in accordance with the express or implied terms ofthe offer. Since the terms of the offer may expressly or impliedly obviatethe general necessity 5 of communication of acceptance, communicationunder these circumstances would not be a prerequisite to the formationof a contract.' 6 When one compares the third district court's rule, thatacceptance of an offer must be communicated, with the above rule, onefinds the law "unclear, if not in conflict."A conflict situation of the third type is evident after reading thecases cited by the district court in affirmance of the trial court's decision,since those cases' do not control the instant case. Morrison v. Theolke,88. See, e.g., N & L Auto Parts Co. v. Doman, 117 So.2d 410 (Fla. 1960); Board ofComm'rs of State Institutions, 116 So.2d 762 (Fla. 1959).9. The "rule" need only be obiter dictum of a supreme court decision. See Hawkinsv. Williams, 200 So.2d 800 (Fla. 1967); Sunad, Inc. v. City of Sarasota, 122 So.2d 611(Fla. 1960).10. Nielson v. City of Sarasota, 117 So.2d 731, 734 (Fla. 1960), citing Florida Power& Light Co. v. Bell, 113 So.2d 697 (Fla. 1959).11. Id.12. See Allen v. Florida Power Corp., 253 So.2d 401 (Fla. 1971). The supreme courtstated: "It is apparent to us the cases cited by the District Court were misapplied, creat-ing patent conflict in that they do not directly relate to the instant situation .... " Id. at 403(emphasis added).13. Benefield v. State, 160 So.2d 706, 707 (Fla. 1964), citing Trustees of the InternalImprovement Fund v. LoBean, 127 So.2d 98 (Fla. 1961).14. See note 7 supra.15. Corbin, in discussing the rule that there must be communication, concludes that"such a general requirement is not to be found." I A. CoRnix, CONTsACTS § 67 (1963).16. See, e.g., Shortridge v. Ghio, 253 S.W.2d 838 (Mo., Kansas City Ct. App. 1952);International Filter Co. v. Conroe Gin, Ice & Light Co., 277 S.W. 631 (Tex. Com. App.1925).17. See note 4 supra.18. 155 So.2d 889 (Fla. 2d Dist. 1963).CASES NOTEDwhich first adopted the "deposited acceptance rule" in Florida, was citedas controlling; but the rule that acceptance is complete upon depositingin the mail, is applicable only when no particular mode of acceptancehas been specified.19 The second case cited, Tucker v. Gray,2" was obvi-ously cited for its quotation from Ryan v. United States.21 The court inTucker was concerned with an agency and a statute of frauds question.In Ryan, the United States Supreme Court dealt with the timelessness ofa written and communicated acceptance. The remaining authority citedby the lower appellate court, "33 Fla. Jur. 365, ''22 was equally inappli-cable.as Since none of the cited authorities or cases were concerned withan offer which specified the manner of acceptance in terms which impliedlydispensed with the necessity of communication of that acceptance, thecases were misapplied 24 by the district court. This misapplication createda conflict situation of the third type.Nevertheless, the supreme court was unable to find the existence ofa conflict and, consequently, certiorari was denied. A denial of certiorari,however, is "not to be construed as a decision upon the merits . . . "2nor can it be used "as precedent or authority for or against the proposi-tions urged or defended in such proceedings."2 However, the bench andbar may easily forget this when confronted with the text of Kendel.Justice Atkins writes:The trial judge and the District Court of Appeal in the casesub judice correctly held that the acceptance must be com-municated to the offeror and that the offeror could revoke theoffer provided the communication of such revocation is receivedprior to the acceptance.2That certainly reads like a decision on the merits.The supreme court's reasoning in this "decision on the merits"resulted from a judicial shelving of the expressed intent of the contract-ing parties. Despite the parties' manifest intent to be bound by the terms19. See Morrison v. Thoelke, 155 So.2d 889, 893 (Fla. 2d Dist. 1963), citing 1 A.CoRmIN, CONTRAcTs §§ 78, 80 (Supp. 1961).20. 82 Fla. 351, 90 So. 158 (1921).21. 136 U.S. 68 (1890).22. Kendel v. Pontious, 244 So.2d 543, 544 (Fla. 3d Dist. 1971).23. The only pertinent portion of this "authority" alluded to by the appellate courtcontained the statement: "But if an offer is accepted without conditions, and without vary-ing its terms, and the acceptance is communicated to the other party without unreasonabledelay, a contract arises from which neither party can withdraw at pleasure." 33 FLA. JuR.Vendors and Purchasers § 13 (1960). The encyclopedic text credits Tucker v. Gray, 82 Fla.351, 90 So. 158 (1921), for this proposition, but as the text of this article indicates, Tuckerdid not and does not support such a broad statement.24. See Allen v. Florida Power Corp., 253 So.2d 401 (Fla. 1971).25. Platt v. Mannheimer, 149 So.2d 538, 539 (Fla. 1963) (dissenting opinion).26. Southern Bell Tel. & Tel. Co., v. Bell, 116 So.2d 617, 619 (Fla. 1959), citingCollier v. City of Homestead, 81 So.2d 201 (Fla. 1955).27. 261 So.2d at 170 (emphasis added).1973]UNIVERSITY OF MIAMI LAW REVIEW [Vol. XXVIIof the contract as soon as both had signed it, the supreme court reasonedthat:It was necessary that the sellers do more than indicatetheir acceptance of the purchasers' offer by signing the depositreceipt. They were required to set in motion some means bywhich knowledge of that acceptance would come to the pur-chasers before any enforceable contract could arise. An accep-tance under these circumstances, which only remains in thebreast of the acceptor without being communicated to theofferor, is no binding acceptance. 8The reasoning quoted above reflects the general rule regarding the neces-sity of a communication of the acceptance of an offer for a bilateralcontract.However, the encyclopedic authorities cited by the supreme courtin support of this general rule also report an exception to the rule.Williston states, at the end of the section quoted in the Kendel opinion,that:Where the offeror manifests his satisfaction with someother mode of acceptance which the acceptor thereupon adopts,the law imposes upon both parties the obligations which theyexpect or by their course of conduct should have good reasonto expect.29Corpus Juris Secundum specifies that:It is sufficient if the offer is accepted in the mode expresslyor impliedly required by the offerer, . . . and if the offerer re-quires or suggests a mode of acceptance which turns out, as faras giving actual notice to the offerer, to be insufficient or entirelynugatory, it is the fault of the offerer, and the agreement iscomplete.80And the last authority cited, the second edition of American Jurispru-dence, also recognizes the exception to the general rule with the followinglanguage:If a reciprocal promise is required, . . . it is also essential, toconvert such proposal into a valid contract, that such acceptancebe communicated to the proposer or that some act be done bythe party accepting the proposal which the other party hasexpressly or impliedly offered to treat as a communication.81The supreme court's "decision on the merits" which ignores theexception to the general rule and its failure to find conflict where con-28. 261 So.2d at 169.29. 1 S. WrLLISTON CoNTRcrs § 70 (3d ed. 1957).30. 17 C.J.S. Contracts § 45 (1955) (footnote omitted and emphasis added).31. 17 AM. JuR. 2d Contracts § 43 (1964) (footnote omitted and emphasis added).CASES NOTEDflict exists, can do little to promote uniformity in the law. These short-comings may, however, do much to lighten the supreme court's workload by discouraging deserving litigants from seeking supreme courtreview of conflicting decisions.LARRY C. LINDERTHE EXPANSION OF STATE POWER THROUGH THETWENTY-FIRST AMENDMENTFollowing public hearings which revealed numerous incidents ofsexual conduct between dancers and customers1 in bars licensed andregulated by the California Department of Alcoholic Beverage Control,the Department promulgated regulations expressly prohibiting sexual liveentertainment and films in such bars and nightclubs. Plaintiffs, includingholders of various liquor licenses issued by the Department, and dancersat premises operated by such licensees, unsuccessfully sought discretion-ary review of the regulations in both the state court of appeals and inthe Supreme Court of California. The Department then joined withplaintiff-petitioners in requesting the three-judge federal district courtto decide whether the regulations were invalid under the United StatesConstitution. The district court held that the regulations unconstitu-tionally abridged the freedoms guaranteed to petitioners by the first andfourteenth amendments. 2 The United States Supreme Court held, reversed:States have broad latitude under the twenty-first amendment to controlthe manner and circumstances under which liquor in bars and nightclubsmay be dispensed. The Department's conclusion that both the sale ofliquor and lewd or naked entertainment should not take place simul-taneously in licensed establishments was not irrational nor was theprophylactic solution unreasonable. California v. LaRue, 93 S. Ct. 390(1972).The Court, while admitting that the regulation would prevent cer-tain activities which would not be obscene under Roth v. United States,8and subsequent Supreme Court decisions, granted the state agency widelatitude to suppress not only obscenity outside the scope of the firstamendment, but also speech which is clearly protected. 4 In justifying1. The Court summarized the transcript of the hearings by stating:Customers were found engaging in oral copulation with women entertainers;customers engaged in public masturbation; and customers placed rolled currencyeither directly into the vagina of a female entertainer, or on the bar in order thatshe might pick it up herself.California v. LaRue, 93 S. Ct. 390, 393 (1972) [hereinafter referred to as LaRue].2. California v. LaRue, 326 F. Supp. 348 (C.D. Cal. 1971).3. 354 U.S. 476 (1957) [hereinafter referred as Roth].4. The obscenity test developed in Roth requires that the material must be taken as awhole and when so viewed, must appeal to a prurient interest in sex, patently offend1973 ]

Conflict Certiorari Jurisdiction and Contracts as Told By the Supreme Court of Florida

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Conflict Certiorari Jurisdiction and Contracts as Told By the Supreme Court of Florida

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