author: OTT, Judge.

text:
    The CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, et al., Appellants, v. ST. PETERSBURG YACHT CLUB, a Florida nonprofit Corporation, Appellee.
    No. 76-1872.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1977.
    Carl R. Linn, City Atty., St. Petersburg, for appellants.
    John T. Allen, Jr., St. Petersburg, for appellee.
   OTT, Judge.

Pursuant to the authority and requirement of existing ordinances the Environmental Development Commission [EDC] of the City of St. Petersburg proceeded to a public hearing on the appellee’s application for a zoning variance. There were no appearances before the EDC in opposition to the appellee’s application, although due notice had been given thereof. Two weeks later, the EDC met in executive session to sift the evidence and render a decision. A member of the North Shore Neighborhood Association [NSNA] appeared at the executive session to request a delay in voting until the NSNA could study the application. When asked if the NSNA had formed an opinion which they would like to express at the meeting, the NSNA representative replied that they “had not been advised enough to take it into consideration.” “Their request,” according to their representative, “was to be given time to study it.”

At no time did the NSNA register an objection to the appellee’s application or advance any grounds for its denial.

The EDC proceeded to approve the appel-lee’s application.

The NSNA then undertook an appeal to the City Council from this decision of the EDC pursuant to Article IV-A, Section 64.-22.1(B)(3)(e) which reads as follows:

Appeal procedures. A decision of the Commission resulting from action taken under the power granted by this section may be appealed to the City Council. Such appeal shall be accompanied by a fee of [$30] and filed with the Clerk of the City Council within [30] days of the Commission’s action and shall clearly state the decision or decisions appealed from and the basis for the appeal.

Appellee objected to the City Council entertaining or considering the appeal of the NSNA. The City Council overruled appel-lee’s objection and refused to dismiss the appeal.

Appellee thereupon promptly applied to the lower court for its writ of certiorari, which issued in due course. The City of St. Petersburg has appealed to this court.

We agree with the lower court that where the ordinance is silent as to who may appeal:

It is fundamental that a party litigant must object in an administrative hearing in order to properly under law perfect the right of appeal to a higher administrative tribunal.
Consideration of such 'an appeal without an objection being lodged before the initial administrative body thereby permitting that body to have an opportunity to pass upon the grounds raised in the appeal constitutes a departure from the essential and fundamental requirements of law.

See Orlando Transit Co. v. Florida Railroad & Public Utilities Commission, 160 Fla. 795, 37 So.2d 321 (1948).

We therefore affirm the lower court in the issuance of its writ of certiorari without prejudice, however, to the right of the City of St. Petersburg to amend its ordinances so as to properly authorize such civic or citizen organizations as the NSNA to be heard in the decision making process of city government. The holding of the lower court suggests that the city is prohibited from so doing and in this we disagree. The case of Silver Star Citizens’ Committee v. City Council of Orlando, 194 So.2d 681 (Fla. 4th DCA 1967) deals with the standing of parties before the courts of this state and should not be construed as limiting a city of this state as to those it may properly choose to hear.

As modified or clarified herein the lower court is affirmed.

GRIMES, Acting C. J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    WORLD BUSINESS CONSULTANTS LTD., INC., a Florida Corporation, Appellant, v. AUTOMOTIVE FINISHES, INC., a Foreign Corporation, Appellee.
    No. 77-654.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1977.

      Warren A. Wilson, III, of Johnson, Blakely, Pope & Bokor, P. A., Clearwater, for appellant.
    Vernon R. Keiser of Sunne, Keiser & Locke, P. A., Clearwater, for appellee.
   PER CURIAM.

Appellant, a Florida corporation, filed a complaint against the appellee, a foreign corporation. In the complaint, appellant alleged that the .appellee’s business had brought it within the parameters of Sections 48.181 and 48.193(l)(a), Florida Statutes (1975). Appellant pled specific facts in support of this allegation.

Appellee moved to abate the action for lack of jurisdiction, but did not file any affidavits or other supportive materials. The trial court granted the motion to abate. Appellant appeals.

We agree with the appellant that the complaint alleged sufficient jurisdictional facts to obtain personal jurisdiction over the appellee pursuant to Florida’s long arm statute and to satisfy the constitutional “minimum contacts” requirement. ’ The burden then shifted to the appellee to make a prima facie showing of the inapplicability of the long arm statute. Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977); Madax International Corp. v. Delcher Intercontinental Moving Services, Inc., 342 So.2d 1082 (Fla.2d DCA 1977); Dublin Co. v. Peninsular Supply Co., 309 So.2d 207 (Fla.4th DCA 1975).

Accordingly, we reverse the order of abatement with directions to reinstate the complaint.

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


text:
    Ronald C. BRUNS, Appellant, v. Thomas P. ARCHER, David C. Brown, Stephen Mitchell, Clifford Wenzel, and Russell C. Wimer, as the Board of County Commissioners, etc., et al., Appellees.
    No. 77-747.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1977.

      Ronald C. Bruns, pro se.
    Donald A. Pickworth, County Atty.,. and James H. Siesky, Asst. County Atty., Naples, for appellees.
   PER CURIAM.

For the one point meriting discussion herein appellant asks us to reverse an order of the trial court abating this case. We agree with appellant that the order was improper and remand the case to the trial court so that it may continue on its normal course.

In December 1975, appellant Ronald C. Bruns filed a complaint in circuit court seeking to enjoin appellees, as the Board of County Commissioners of Collier County, Florida, and ex-officio Governing Board of Collier County Water-Sewer District, from creating the Collier County Water and Sewer District and acting as the District’s governing board. Subsequently, appellees filed a suit in which they asked the court to validate bonds issued by the Water and Sewer District. Appellant became a defendant in this proceeding pursuant to Section 75.02, Florida Statutes (1975) since he was a resident of Collier County. Appellees next filed a motion in appellant’s case in which they asked the trial court to consolidate the two cases and abate appellant’s case in favor of their own. After a hearing, the trial court entered an order granting appellees’ request for consolidation and abatement.

We find that the trial court erred in abating appellant’s case in favor of ap-pellees’ case. Under the law of abatement, while a subsequent action may be abated in favor of a prior action, a prior action may never be abated in favor of a subsequent action. See State ex rel. Dos Anigos v. Lehman, 100 Fla. 1313, 131 So. 533 (1930). Moreover, both actions must have the same plaintiffs and the same defendants. Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909 (1930). Therefore, the court could not abate appellant’s case because his was the prior action and because the two actions did not have the same plaintiff.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

HOBSON, A. C. J., SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: GRIMES, Acting Chief Judge.

text:
    James HELINGER a/k/a Jim Helinger, Appellant, v. Larry K. ALLEN and R. M. Crow Company, Appellees.
    No. 77-925.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1977.
    Rehearing Denied Dec. 14, 1977.
    John T. Allen, Jr., P.A., St. Petersburg, for appellant.

      David B. Kesler of Law Offices of W. A. Heth, St. Petersburg, for appellee Allen.
    No appearance for appellee R. M. Crow Co.
   GRIMES, Acting Chief Judge.

This appeal attacks the propriety of a sheriff’s sale which was conducted to satisfy a judgment lien.

On July 22, 1971, R. M. Crow Company obtained a final judgment of $408.94 against the appellant in the Civil and Criminal Court of Record of Pinellas County. A writ of execution was issued on July 27, 1971, and was docketed with the sheriffs department the following day. The writ of execution laid dormant for several years because the judgment was deemed to be uncollectible.

In 1976 Crow learned that the appellant owned some real property which would lend itself to levy. The property was an office building located at 2646 Central Avenue, St. Petersburg, Florida. Instructions for levy were issued to the sheriff’s department.

On November 22, 1976, the sheriff’s department mailed a notice of sheriff’s sale and a copy of the instructions for levy to the appellant at 2640 Central Avenue, St. Petersburg, Florida. The notice stated that the property would be sold at public sale on Monday, January 3, 1976, at 11:00 a. m.

Pursuant to Section 56.21, Florida Statutes (1975), the sheriff’s department also caused the following notice to be published in a Pinellas County newspaper on November 26 and December 3, 10, 17, 1976:

“NOTICE OF SHERIFF’S SALE IN THE CIVIL AND CRIMINAL COURT OF RECORD OF PINELLAS COUNTY, FLORIDA
Case # 32,889
R. M. CROW COMPANY PLAINTIFF VS.
JAMES HELINGER, ETC. DEFENDANT
NOTICE IS HEREBY GIVEN that I, WM. T. ‘BILL’ ROBERTS, Sheriff of Pinellas County, Florida, by virtue of an Execution issued out of the above styled court on the 22nd day of July A.D., 1976, in the above styled cause, on behalf of the Plaintiff, R. M. CROW COMPANY have made levy upon the following described property:
Lot 6, Block 23, Hall’s Central Avenue, Sub # 1, Plat Bk 3, Page 39, Pinellas County, Florida aka 2640 Central Avenue, St. Petersburg, Florida
as the property of the above named defendant, JAMES HELINGER and further, I shall offer this property for sale ‘AS IS’ ‘WHERE IS’ and subject to all prior liens and encumbrances, if any, and without recourse, on Monday, the 3rd day of January A.D., 1976. at 11:00 A.M. at 315 Haven Street, Clearwater, Florida and will sell to the highest cash bidder, all right, title and interest of said defendant, JAMES-HELINGER in said property.
DATED at Clearwater, Pinellas County, Florida, this 19th day of November A.D., 1976.
WM. T. ‘BILL’ ROBERTS, Sheriff
Pinellas County, Florida
By /s/ Robert J. Falk, Lieutenant
Services Division
NIXON and FARNELL, Attys.
521 Oak Avenue
Clearwater, Florida 33516
PR-November 26; December 3, 10, 17, 1976”

A deputy sheriff hand delivered a copy of the instructions for levy and a sheriff’s notice of levy to one of the appellant’s sons inside the premises which were to be sold. The deputy also posted a copy of the notice of levy on the door of the premises. The date of the sale was not mentioned in either the instructions for levy or the notice of levy.

Appellant took the instructions for levy to his lawyer. The appellant’s attorney told Crow’s counsel that appellant thought he had paid the judgment. Crow’s lawyer said he would check this out and call back. He later advised appellant’s attorney that Crow had not been paid. Appellant’s counsel was never aware of the sale date, though he obviously had to have known that a sale was in the offing. While the scheduled date of the sale was not discussed during the two telephone conversations, there was nothing said between counsel which could be construed as a promise by Crow’s attorney to forego the sale.

The property was auctioned off at the courthouse on Monday, January 3, 1977, at 11:00 a. m. Larry Allen bid in the property for $40.30. A sheriff’s deed was issued to Mr. Allen.

Appellant learned of the sale a short time after it took place. He filed a motion to vacate the sale. Crow responded and Larry Allen intervened. At the hearing on the motion to vacate, appellant testified that he had purchased the property about a year before for $45,000 and had since made about $5,000 worth of improvements on it. The record reflected that the property was encumbered by mortgages of $17,400 and $15,000. Appellant testified that the balance owed on the first mortgage was approximately $15,000. He contended that the second mortgage had been paid, but there was no satisfaction on record. The record also contained at least two other unsatisfied judgments against appellant to-talling $460.88. The appellant admitted receiving the instructions for levy mailed by the sheriff. He denied knowing of the datfe of the sale until after it occurred. The court denied the motion to vacate, and appellant has filed this interlocutory appeal from the post-judgment order.

Appellant argues that the published notice was defective because:

(1) The court is wrong. There is no longer a County Civil and Criminal Court of Record. Its jurisdiction has been replaced by the County Court.

(2) The date of issue of the execution is wrong since the notice stated it to be the 22nd day of July, 1976, when the execution was actually issued on the 27th day of July, 1971.

(3) The address of the property is stated incorrectly as 2640 Central Avenue whereas the correct address is 2646 Central Avenue.

(4) The date of sale is incorrectly stated in the notice as- the 3rd day of January, 1976, when the correct date of the sale was the 3rd day of January, 1977.

Appellant also argues that the levy was improper because it was based upon a writ of execution issued by the Civil and Criminal Court of Record of Pinellas County which was abolished by the 1972 amendment to Article V of Florida’s Constitution. He contends that Crow should have applied to the present county court for issuance of a second writ of execution upon the judgment.

We need not reach appellant’s attack on the writ of execution. We hold that the notice of sale was defective because the date of the sale was incorrectly published. The defective notice when coupled with evidence of an inadequate bid is sufficient to set aside the sale. Ohio Realty Investment Corp. v. Southern Bank of West Palm Beach, 300 So.2d 679 at 681 (Fla.1974).

The trend of the law is to disregard technicalities. Yet, the publication of a proper notice of sale is more than a technicality. The purpose behind requiring publication of a notice of sale is that if the public at large knows of a forthcoming sale, there is more likelihood of the property being sold at a price which is reasonably commensurate with its full market value. At the very least, the notice should advise prospective bidders of the correct date, time, and place of the sale. We know of no authority which permitted the court below to take judicial notice that

“ . . . every January of every new year, many, many people refer to the prior year in using the date.”

While under the facts of this case appellant could probably be charged with the knowledge of when the sale was going to take place, this does not satisfy the requirement of proper notice to the public.

As the Supreme Court said in Ruff v. Guaranty Title & Trust Co., 99 Fla. 197, 126 So. 383 (1930):

“ . . . [T]he general rule is that mere inadequacy of price is not sufficient to set aside a judicial sale, but, ‘where such inadequacy is connected with, or shown to result from, any mistake, accident, surprise, misconduct, fraud, or irregularity, the sale will generally be set aside.’ ...”

The order denying the motion to vacate is reversed, and the sale is hereby set aside. The property may be resold at judicial sale upon proper notice.

OTT, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: SMITH, Judge.

text:
    Ezekial SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. FF-348.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1977.
    Rehearing Denied Dec. 15, 1977.
    Robert Stuart Willis, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

A conviction for murder in the second degree. The trial court did not err in refusing to require the State to introduce in evidence, as a predicate for the in-court identification of Simpson by the State’s principal witness, the photographs exhibited before trial to the witness. Nor did the court err in permitting the witness to testify, on questioning by the State after the in-eourt identification, that the witness had identified the same man in the pretrial photographic display. It was improper for the State to have been permitted to elicit, on redirect examination of the witness, his hearsay testimony that the police identified the photograph chosen as Simpson’s. But the police identification of the photograph as Simpson’s, after it was selected, is not shown to have tainted the witness’ selection of it or his in-court identification. The hearsay testimony at trial was error but, in the circumstances, was harmless. The prosecutor in summation to the jury stated:

. He [defense counsel] told you that the Defendant is never required to take the witness stand and that any comment I or the Court might make about that is absolutely wrong for us to do that, and he’s right in his stating the law to you in that way .

Jackson v. State, 45 Fla. 38, 34 So. 243 (1903), holds that a prosecutor may not for any purpose call to the jury’s attention that the accused has not testified or insinuate guilt from his failure to do so. Here the jury was first reminded that the accused did not testify by his counsel. It was perilous practice, but not error, for the prosecutor to affirm that the accused’s silence was not to be considered against him. There was no “sinister influence” in these particular remarks. Gordon v. State, 104 So.2d 524, 540 (Fla.1958). There was no other reversible error in the prosecutor’s summation, although we admonish him — Mr. Richard D. Nichols — that his reference to “one of the favorite tricks of a defense lawyer” was a gratuitous insult to the adversary system of justice which he serves. Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973).

AFFIRMED.

MILLS, Acting C. J., and ERVIN, J., concur.


text:
    DUVAL COUNTY SCHOOL BOARD, Appellant, v. Douglass Ryan COOKE, Appellee.
    No. HH-74.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1977.
    Rehearing Denied Dec. 15, 1977.
    Dawson A. McQuaig and William Lee Allen, Jacksonville, for appellant.
    Lacy Mahon, Jr., of Mahon, Farley & Vickers, Jacksonville, for appellee.
   PER CURIAM.

We treat the Duval County School Board’s appeal, styled interlocutory appeal, as petition for writ of certiorari. No grounds having been asserted by the Board for issuance of the writ, the petition for writ of certiorari is

DENIED.

BOYER, Acting C. J., and MILLS and ERVIN, JJ., concur.


text:
    Lyman WALKER, III, Petitioner, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Respondent.
    No. GG-66.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1977.
    Rehearing Denied Dec. 12, 1977.

      Jon D. Caminez and John D. Carlson, Tallahassee, for petitioner.
    Allen E. DeSerio and H. Reynolds Sampson, Tallahassee, for respondent.
   SMITH, Judge.

A signowner petitions for review of a Department of Transportation order adopting the proposed order of a hearing officer and finding that petitioner’s signs adjacent to an interstate highway are in violation of Section 479.11(1) and (2), Florida Statutes (1975). The signs were ordered removed.

Petitioner contended before the hearing officer and here that his signs, which advertise the sale of pecans at a stand on a nearby intersecting highway, were excepted from the proscription of Section 479.11(1) and (2) by Section 479.16(2), which permits signs

. constructed, erected, operated, used or maintained on any farm by the owner or lessee of such farm and relating solely to farm produce, merchandise, service or entertainment sold, produced, manufactured or furnished on such farm.

The Department urges concerning farm produce that the exception restricts permissible on-site advertising to produce of the farm. The statute is not so limited. Given an active farm, the exception permits on-site advertising by the farm owner or lessee of farm produce sold there but obtained elsewhere.

The evidence does not qualify petitioner for the farm exemption. Although the transcript contains evidence the petitioner’s signs stood near an old pecan grove of seventeen trees, there was no evidence that petitioner owned or leased the grove, or that the grove was actively farmed, or that the advertised sale of pecans took place on the farm. The burden of proving entitlement to the statutory exemption was on petitioner and he did not prove important elements of the exemption. The Department’s final order should have so stated, in response to the exception to the recommended order filed by petitioner, Stuck-ey’s of Eastman, Georgia v. Dep’t of Transp., 340 So.2d 119 (Fla. 1st DCA 1976), but that omission in this case did not impair the fairness of the proceedings or the correctness of the action. Section 120.68(7), Florida Statutes (Supp.1976).

No other error appears. The prayer of the petition for review is DENIED.

MILLS, Acting C. J., and MELVIN, J., concur.


text:
    Sandra P. WHITEHEAD, formerly Sandra P. Overstreet, Appellant, v. Euphemia M. ROWLAND, Appellee.
    No. 77-113.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1977.
    Rehearing Denied Dec. 14, 1977.
    Law Offices of Frank McClung, Brooks-ville, for appellant.
    H. Clyde Hobby of McClain, Hobby & Greenfelder, P.A., Dade City, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from a judgment of rescission.

By a written lease dated April 10, 1967, the appellee leased twenty-five acres of land in Pasco County to Robert E. Over-street for a period of ten years. According to its terms, Overstreet agreed to cultivate at his expense the citrus grove which occupied twenty-one acres of the land with the understanding that the appellee would be paid 50% of the net profits derived therefrom. By a warranty deed dated April 12, 1967, the appellee conveyed to Overstreet and the appellant, who was then his wife, ten acres of the land covered by the lease. The deed stated that it was “subject to the terms and conditions of that certain lease executed by the parties on April 10, 1967.” The deed contained documentary stamps reflecting a consideration of $4,000. The ap-pellee and Overstreet also executed an instrument dated April 12, 1967, entitled “Confirmation of Leasing Agreement” which stated in pertinent part:

“1. That EUPHEMIA M. ROWLAND, has this day, conveyed to ROBERT E. OVERSTREET and SANDRA P. OVERSTREET, his wife, the following described real property located in Pasco County, Florida, to-wit:
North Vi of SE Vi of , SE Vi of Section 16, Township 24 South, Range 21 East, Pasco County, Florida,
the value of which the parties hereby estimate to be worth approximately $4,000.00.
“2. That the consideration for the above conveyance is the services rendered by the said Robert E. Overstreet, and the material and plants furnished by the said Robert E. Overstreet, in the clearing of land, and the planting and maintaining a grove for the said Euphemia M. Rowland, the value of which the parties hereby estimate to be worth approximately $4,000.00.
“3. That the above conveyance is subject to the terms and conditions of that certain Lease executed by the parties on April 10,1967; that the parties do hereby agree that the rights and duties of the parties set forth in said lease shall not be affected by said conveyance and that party of the first part shall still receive fifty per cent of the net profits from the grove on the above described realty as well as from the grove located on the balance of the realty described in said lease.”

In 1975, appellee brought suit against appellant and Overstreet seeking to cancel the deed for the failure to cultivate the citrus grove pursuant to the provisions of the lease and for the failure to remit 50% of the net profits from the grove since 1969. By the time of the suit, appellant and Over-street were divorced and each of them held an undivided one-half interest in the property described in the deed. Appellee obtained a default judgment of rescission against Overstreet for his one-half interest in the property. Following a nonjury trial the court entered a judgment rescinding the deed with respect to appellant’s one-half interest, and she has appealed this judgment.

Over the appellant’s objection the appel-lee was permitted to testify that the consideration flowing to her for the conveyance of the ten acres was the promise by Overstreet to cultivate the grove and to divide the profits with her. She said she would not have executed the deed without this promise. Since there was no evidence of undue influence or fraud, the apparent theory upon which the court granted rescission was that Overstreet’s promise was a dependent covenant, the breach of which invalidated the entire transaction. See Steak House v. Barnett, 65 So.2d 736 (Fla.1953). Assuming, without deciding, that the disputed testimony established a dependent covenant, we believe that the parol evidence rule precluded the admission of this testimony.

Our Supreme Court in Bond v. Hewitt, 111 Fla. 180, 149 So. 606, 607-608 (1933), gave a clear explanation of the parol evidence rule with respect to testimony on the subject of consideration when it said:

“ . . . The general rule is that parol evidence is not admissible to vary, contradict, or defeat the terms of a complete and unambiguous written instrument. To the general rule there are two recognized exceptions. They are: First, that where a written instrument does not purport to contain the entire agreement between the parties thereto, nor to have been intended as a complete statement or whole contract, and where such instrument was executed pursuant to a parol agreement and in part performance thereof, parol evidence is admissible when consistent with, and not contrary to, such written instrument. Chamberlain v. Lesley, 39 Fla. 452, 22 So. 736. Second, that where the deed of conveyance recites a consideration of a sum of money and other valuable consideration, the statement of the deed as to the consideration thereof is not complete and the true character of the consideration may be shown by parol. The exception just quoted, however, does not permit proof of an oral agreement for the purpose of imposing a further contractual obligation on one of the parties of which there is no indication or suggestion in the written contract, when such obligation is not only inconsistent with, but repugnant to other plain terms of the instrument. It is not permissible under the guise of proving by parol the consideration of a written instrument, to add to or take from the other provisions of the written instrument, nor to modify, impair, or destroy the operative effect thereof. If the rule were otherwise, the obvious result would be to abrogate the long settled rule respecting the finality of written contracts. The exception last above mentioned should not be extended to include every motive that prompts the making of a contract, even though that motive be related to or forms a part of the consideration. Where the consideration sought to be shown by parol is purely contractual in its character, and imposes upon one of the parties an additional contractual obligation repugnant to the plain terms of the written contract, parol proof may not be resorted to for the purpose of enforcing such additional obligation, since parol evidence is no more admissible to vary or add to the written instrument in that respect than it is in any other. . . . ”

The same court three years later in Mallard v. Ewing, 121 Fla. 654, 164 So. 674, 678 (1936), summarized its position as follows: “ . . . [T]he rule is now generally

recognized that the true or real consideration of the instrument may be shown by either party by any competent evidence although the consideration so shown may be different in amount of quantity from the consideration expressed provided it is not inconsistent with it. . . . ” (emphasis added)

In the instant case, it is evident that the parties fully stated in writing the amount of the consideration for which the deed was given. The confirmation of leasing agreement which was executed contemporaneously with the deed specifically stated that the property being conveyed was worth $4,000 and that the consideration for the conveyance was past services rendered by Overstreet to the appellee, the value of which the parties estimated to be worth the same amount. To permit the appellee to later testify that additional consideration was involved is clearly repugnant to the written agreement. Since there is no other evidence to support rescission, the judgment must be .

REVERSED.

OTT, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: ERVIN, Judge.

text:
    JACK PICKARD DODGE, INC., a corporation, Appellant, v. Ella Mae YARBROUGH, C. F. Yarbrough, her husband, Chrysler Motor Corporation, a corporation and Powell Chrysler Plymouth, Inc., a Florida Corporation, Appellees.
    No. GG-403.
    District Court of Appeal of Florida, First District.
    Nov. 21, 1977.

      Robert L. Cowles and James R. Barfield _ of Cowles, Coker & Myers, Jacksonville, for appellant.
    Charles Cook Howell, III of Howell, Howell, Liles & Braddock, Jacksonville, for appellees.
   ERVIN, Judge.

This is an interlocutory appeal from an order denying motions to quash or dismiss for lack of personal jurisdiction. Appellee Ella Mae Yarbrough filed a complaint in Duval County, Florida, alleging negligence on the part of Chrysler Corporation and the local Jacksonville dealership in the manufacture and servicing of her automobile. Chrysler filed a third party complaint against appellant Jack Pickard Dodge, Inc., a North Carolina dealer. Chrysler alleged a recall notice was issued to all dealers, advising them of the possibility of defective parts in certain models which could fail, resulting in loss of vehicle control. The Chrysler directive stated corrections should be promptly made. It was this work that was done by Jack Pickard, allegedly in a negligent manner. The car in question, at the time of the servicing, was under lease to Avis Rent-A-Car. It was sold at auction in Florida and eventually sold to the Yarb-roughs by the Jacksonville dealer. Pickard has no nexus with Florida, other than the servicing of a car that eventually was sold to a Florida resident and then caused injury in Florida.

Jack Pickard argues Section 48.193, Florida Statutes (1975) is unconstitutional as applied here. That section — the Florida long-arm statute — reads in part:

“(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
Hi :ji s}: * j{c
(b) Commits a tortious act within this state.
s¡« s(« ¡k sfc ■{<
(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:
1. The defendant was engaged in solicitation or service activities within this state which resulted in such injury; or
2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.”

Jack Pickard admits it comes within the scope of (1)(f)2 which permits process upon a defendant who services a product used within this state, with resulting injury to the user. This court recently construed the long-arm statute section in Dunn v. The Upjohn Company, 350 So.2d 127 (Fla. 1st DCA 1977). There plaintiff brought a wrongful death action against a drug manufacturer and the Thomas County, Georgia pharmacist who sold the prescription drug to the decedent. Suit was filed in Leon County. We held “a pharmacist who fills a prescription in a foreign state and delivers it to the recipient in that state cannot reasonably be said to have purposefully availed himself of the privilege of conducting activities within the foreign state thus invoking the benefits and protections of the forum state’s laws.” (Emphasis in original.) (350 So.2d, p. 129.) The pharmacist was found not to have the requisite contacts with the State of Florida to satisfy due process requirements of International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and Hanson v. Denckia, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

In International Shoe, a foreign corporation employed salesmen within the state of Washington to solicit orders from prospective buyers. The salesmen took orders and transmitted them to company headquarters, where the orders were approved and shipped F.O.B. from points outside Washington. No salesman had authority to enter into contracts or to make collections. All salesmen were paid by commission. The question was whether the foreign corporation was subject to suit by the state for the collection of unemployment compensation taxes. As we noted in Dunn, the presence of a defendant within the territorial jurisdiction of a court was historically a prerequisite to the rendition of a judgment personally binding him. But with the advent of personal service of summons, a defendant need not be present within the territory of the forum but need only have certain minimal contacts “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” 326 U.S. at 316, 66 S.Ct. at 158. The Supreme Court found sufficient activity by the foreign corporation within the state of Washington to determine that due process requirements of minimal contacts were satisfied. The Court could not prescribe, however, a simple formula, saying:

“It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. . . . Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or a corporate defendant with which the state has no contact, ties, or relations.” International Shoe at 319, 66 S.Ct. at 159.

Hanson v. Denckla, supra, considered the amenability of a Delaware trust company to suit in Florida. The company was trustee of certain securities for a woman who executed her revocable deed of trust in Delaware. She subsequently moved to Florida, where she executed her will and an inter vivos instrument distributing a portion of the trust. An action was brought in Florida for a declaratory judgment to determine what property passed under the residuary clause of her will. The Delaware trust company was served in Florida by publication. The Florida Supreme Court held the trust and power of appointment executed in Delaware were ineffective under Florida law, but the United States Supreme Court reversed, holding Florida lacked in rem or in personam jurisdiction over the Delaware trust company. In discussing personal jurisdiction, the Supreme Court found no contacts at all between the company and Florida. The company had no office in Florida and transacted or solicited no business either in person or by mail. The Court found “it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id., 357 U.S. at page 253, 78 S.Ct. at page 1240.

Not raised in our opinion in Dunn, nor specifically ruled upon, was the constitutionality of the long-arm statute as applied. Here we find it violates “traditional notions of fair play and substantial justice” for a local North Carolina dealer to defend a law suit in Florida when its only connection with Florida is the servicing of an automobile which eventually is possessed by the plaintiffs. There is no allegation Jack Pick-ard operates, conducts, engages in or carries on any business in the state of Florida. Nor does it have an office or agency in the state or own any real property. Our holding in Dunn and the analysis in Hanson v. Denckla, supra, requires reversal on this point.

Chrysler, however, argues Jack Pick-ard comes not only within (1)(f)2, but also within (1)(b) — allowing suit against a nonresident who “commits a tortious act within this state.” Chrysler argues since the injury took place in Florida, the cause of action has accrued in Florida. Two recent Fifth Circuit Court of Appeals cases construing the Florida long-arm statute seem to support such reasoning. In Rebozo v. Washington Post Co., 515 F.2d 1208 (5th Cir.1975), the Washington Post Newspaper published an allegedly libelous article about the plaintiff. The records showed an average of 600 newspapers a day were circulated in Florida. The Fifth Circuit wrote:

“The [Post] contends the alleged libel in this case occurred in Washington, D. C. and that the ‘tortious act’ section of the long arm statute contemplates only a situation in which an act in Florida causes injury in Florida. The district court, on the other hand, construed the statute broadly to include not only that set of events but also the situation in which a foreign tortious act causes injury within the forum. See generally, Buckley v. New York Post Corporation, 373 F.2d 175, 178-9 (2d Cir. 1967). Since we agree with the district court that the Florida courts would construe section 48.193(1)(b) to allow the assertion of jurisdiction over the Company for an alleged libel published in ‘The Washington Post’ and circulated in Florida, it is unnecessary for jurisdictional purposes to discuss the Company’s contention that the libel occurred in Washington, D. C.” 515 F.2d at 1211-1212.

In Bangor Punta Operations v. Universal Marine, 543 F.2d 1107 (5th Cir. 1976), the defendant was accused of taking the plaintiff’s designs and specifications for its trawlers and representing them as the defendant’s own. The defendant also sent into Florida an advertisement containing a photograph of the plaintiff’s trawler, but represented it as the photograph of the defendant’s. The defendant’s yachts, built in violation of the plaintiff’s property rights, were sent into Florida for sale. The Fifth Circuit Court relied on its earlier opinion in Rebozo and found where a foreign tortious act causes injury in Florida, personal jurisdiction in Florida can be had. The court held:

“In this case, the importation of the cheaper and inferior boats, built by the unauthorized use of the plaintiff’s design specifications and plans yet costing approximately $20,000.00 less per vessel, caused the plaintiff’s business to be damaged in terms of lost sales, and damage to reputation, as the plaintiff alleged and the jury undoubtedly concluded. Since injury as a consequence of the defendant’s acts occurred within the State of Florida, we are not called upon and do not. decide the precise locality of the tor-tious acts giving rise to the injurious consequences which occurred.” 543 F.2d at 1109.

Both federal cases involved a foreign defendant and injury in Florida. Both cases found personal jurisdiction appropriate. Nevertheless here the clear wording of Section 48.193(1)(b) — the commission of “a tor-tious act within this state” — requires a different result. Jack Pickard has committed no act in Florida, tortious or otherwise. The fact the injury occurred in Florida is crucial to a determination when the cause of action accrued, but the occurrence of the injury alone in the forum state does not satisfy the statutory test. In both Rebozo and Bangor Punta, the defendants committed an affirmative wrongful act within the forum. The newspaper sold copies of the libelous article. The defendant boat manufacturer solicited customers for its fraudulently designed yachts. The Fifth Circuit’s interpretation of the “tortious act” section would lead to an overbroad application. Any foreign tortfeasor who causes an injury in Florida, regardless how remote in time or place, would be subject to suit in Florida because jurisdiction on the basis of a single tort has been uniformly upheld against constitutional attack. Rebozo at 1214. Such a holding however ignores the admonition in Hanson that application of the minimal contacts doctrine “will vary with the quality and nature of the defendant’s activity . . . 357 U.S. at 253, 78 S.Ct. at 1240.

In conclusion, we hold Section 48.-193(l)(f)2 is unconstitutional in its application to the circumstances of this case. We further hold (l)(b) of that section may not be so broadly construed as to apply here. The interlocutory order finding personal jurisdiction over Jack Pickard Dodge, Inc. is

REVERSED.

McCORD, C. J., and MILLS, J., concur.

      . We are aware of conflicting decisions in other jurisdictions, involving the servicing of vehicles by out of state dealers. Compare, for example, Kerrigan v. Clarke Gravely Corp., 71 F.R.D. 480 (M.D.Pa.1975) and Reilly v. Phil Tolkan Pontiac, Inc., 372 F.Supp. 1205 (D.N.J.1974).


text:
    Donnie Lee IVORY, Appellant, v. The STATE of Florida, Appellee.
    No. 75-943.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court, 330 So.2d 853, was entered on April 20,1976 affirming the judgment and sentence of the Circuit Court of Dade County, Florida in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment, 351 So.2d 26, filed July 14, 1977 and mandate now lodged in this court, quashed this court’s judgment.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on May 12, 1976 is withdrawn, the judgment of this court filed April 20, 1976 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the judgment and sentence of the trial court is reversed and the case is remanded for a new trial.

It is so ordered.

Costs allowed shall be taxed in the trial court (Rule 3.16b, Florida Appellate Rules).


author: PER CURIAM. ANSTEAD, Judge,

text:
    George J. BAYA, Appellant, v. James E. HODGES, Appellee.
    No. 76-84.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    L. J. Cushman of Cushman & Cushman, Miami, for appellant.
    Richard M. Sauls, Okeechobee, for appel-lee.
   PER CURIAM.

Appellant, who is a lawyer, complains of a Judgment against him for over $25,000.00 on account of his misrepresentation and double-dealing of a client, the Appellee. It appears Appellant received money from his client to which Appellant was not entitled and upon a properly pleaded and proved case the jury awarded damages to the client. Unfortunately, the action was barred by the Statute of Limitations and the court erred in letting the case go to the jury.

We most reluctantly reverse the Judgment.

REVERSED.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., concurs specially, with opinion.

ANSTEAD, Judge,

concurring specially:

I concur with the reversal of this action. The appellee claimed that he did not discover the alleged fraud of the appellant lawyer until well after the alleged fraudulent extortion of certain legal fees from the appellee. The issue here is whether the appellee either actually discovered the alleged fraud or in the exercise of due diligence should have discovered it more than three years before suit. See Matthews v. Matthews, 222 So.2d 282 (Fla. 2d DCA 1969). The record is uncontradicted here that in another legal proceeding involving, but not between, these parties, the appellee filed sworn statements charging the appellant with the same misconduct that is alleged in the present action. Those statements were made more than three years before this action was initiated and therefore this action is barred.


author: DOWNEY, Judge.

text:
    Daniel WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2017.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.

      Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and James K. Green, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

While appellant was in jail in Lake County on a forgery charge, Orange County officials requested a “courtesy hold” on appellant because he had been implicated in a burglary in Orange County. Although no formal charge or detainer had been lodged against him, appellant filed a demand for speedy trial in the Circuit Court of Orange County. Subsequently an information was filed against appellant in Orange County and, after 60 days had passed from the filing of the information, appellant moved for a discharge. The trial court denied the motion for discharge and this appeal ensued.

We find from the record that appellant was a prisoner within the meaning of Fla.R. Crim.P. 3.191(b)(2) and thus the 60 day rule did not apply to him. In addition, there was no formal detainer lodged with Lake County. However, even if a formal detain-er had been lodged with Lake County, it would not have commenced the running of the speedy trial time. See Eaddy v. State, 352 So.2d 98, Fla., 4th DCA Opinion issued October 18, 1977.

Accordingly, the judgment and sentence appealed from is affirmed.

AFFIRMED.

ALDERMAN, C. J., and DAUKSCH, J., concur.


author: LETTS, Judge.

text:
    Margaret McClure SELTSAM, Appellant, v. Harold O. SELTSAM, Appellee.
    No. 76-2609.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.

      David B. Van Kleeck of Tylander, de-Claire, Becker & Van Kleeck, Boca Raton, for appellant.
    Larry A. Klein, West Palm Beach, and Scott & Dickenson, Boca Raton, for appel-lee.
   LETTS, Judge.

This case stems from a final judgment of divorce in which the trial judge determined that the wife was “not entitled to an award of alimony.”

We reverse in part.

The facts reveal that an 81 year old husband and his 77 year old wife have divorced after 14 years of marriage. Neither party is penniless and an antenuptial agreement was signed on the day of the marriage which contained the following clause:

6. Support of Margaret. Harold will from his own personal estate and earnings assume the necessary expense of the support and maintenance of Margaret during their marriage.

At the trial, the judge interpreted this clause to be an absolute bar to alimony and ruled as follows:

Well, it is the opinion of the Court, the ruling of the Court, that paragraph six meant exactly what it says. It is clear and unambiguous in its terms, and that his obligation to support and maintain was to continue only during their marriage. I know it is easy to look back in retrospect and say well, everybody intends to be married for the rest of their lives, but that should have been changed and clarified, but it wasn’t. So it is clear and unambiguous.

Even the appellee concedes in his brief that the quoted paragraph numbered six “does not bar the wife from claiming alimony if she is entitled to it,” and that the judge was in error in so ruling. We agree. See Russo v. Russo, City Ct., 62 N.Y.S.2d 514 (1946). Notwithstanding, appellee argues that the record reveals that the wife is not entitled to any alimony because she: first, has substantial assets of her own clearly set forth in the record; and second, this marriage was not the first one for either party and was of comparatively short duration. All this being so, the husband requests that this court conclude the judge’s erroneous ruling to be harmless. The problem in so doing (if we were so inclined) is that, time and again, during the trial, the wife’s counsel was stopped, dead in his tracks, from continuing his presentation and we do not know whether all the evidence favorable to the wife’s claim was presented. For example, the following exchange took place at trial:

THE COURT: Well, the Court has already indicated it doesn’t feel that his net worth or his income is going to be germane after this divorce is entered; that his obligation of support, according to paragraph six of this antenuptial agreement, terminates when this marriage is terminated. So therefore the Court feels that all this is immaterial, irrelevant, and can be submitted later, and proffered by deposition if you wish.
MR. DICKENSON: I will be pleased to stipulate to present all those items.
MR. VAN KLEECK: Well, if your Honor is ruling that it is irrelevant, I certainly am not going to put my client to the expense of putting in the record, but I do feel this bears on Mr. Seltsam’s good faith and clean hands before this Court.
THE COURT: Well, I think the antenup-tial agreement is pretty clear. I mean, I don’t see how you can get around the thing.
MR. VAN KLEECK: Well, I think it is just as clear the other way, and I respectfully suggest that is what the suit is all about.
THE COURT: All right.

We are likewise of the opinion that there was no adequate evidentiary hearing on the question of the ownership and division of the personal property.

Accordingly, although the dissolution of marriage is affirmed, this cause is herewith reversed and remanded to permit the wife and husband to fully present all evidence which might bear on the question of alimony and ownership of the personal property.

CROSS and ANSTEAD, JJ., concur.


text:
    James E. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-54.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of State v. Mitchell, 245 So.2d 618 (Fla.1971).

ANSTEAD, J., DREW, E. HARRIS (Retired), and STETTIN, HERBERT, Associate Judges, concur.


author: DAUKSCH, Judge.

text:
    STATE of Florida ex rel. CITY OF POMPANO BEACH, BROWARD COUNTY, Florida, for the Use and Benefit of the POMPANO BEACH POLICE DEPARTMENT, Appellant, v. Anthony Henry WASHINGTON, and 1970 Oldsmobile Convertible VIN: 342670E185307, Appellee.
    No. 77-890.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.

      Donald C. Roberge, Pompano Beach, for appellant.
    Robert J. Fogan, Fort Lauderdale, for appellee.
   DAUKSCH, Judge.

The question on appeal is whether the court can award as costs, under Section 939.06, Florida Statutes (1975), damages resulting from an alleged improper towing, storage and negligent care of an automobile by the Appellant. Appellee successfully defended a Section 943.44, Florida Statutes (1975), automobile forfeiture suit after the State declined to prosecute him after he was charged with delivery of cannabis.

Apparently Appellee had to pay $400 to the towing service for towing and storage and $371.16 for repair on account of negligent care while the car was in storage. He says the City should pay him the money because its agents caused the damages. That may be so and Appellee has a right to sue. A taxing of costs is not the way to go about it. Section 939.06, Florida Statutes (1975), is not specific but its language cannot be stretched to include these costs which were incurred in a quasi-criminal forfeiture proceeding subsequent to, and collateral to, the criminal charges.

This is not a case such as bail bond premiums. Daniel v. State, 309 So.2d 248 (Fla. 4th DCA 1975). Nor is it a case like a DWI tow-away charge. Doran v. State, 296 So.2d 86 (Fla. 2d DCA 1974). We agree with those decisions but determine this matter differently. If a government chooses to seize and attempt to have forfeited a citizen’s automobile then that government must properly seize and store the automobile or pay the towing and storage costs and repairs bills incurred as a result of improper storage. The Judgment for costs against the City of Pompano Beach is reversed without prejudice to the Appellee to seek a proper remedy.

REVERSED.

ALDERMAN, C. J., and LETTS, J., concur.


text:
    John W. SHIELDS, Appellant, v. James E. MOORE, Jr., Appellee.
    No. 77-1205.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1977.

      John D. Prior, Jr., Sunrise, for appellant.
    No briefs filed by appellee.
   LETTS, Judge.

The trial court reinstated an action pursuant to Rule 1.420(e) Fla.R.Civ.P. We reverse.

This cause was set for trial on January 21st, 1976 and postponed upon request of the plaintiff until “renotice by either party” by order dated January 19th, 1976.

On April 5, 1977 the trial court sua sponte moved the dismissal of the action pursuant to Rule 1.420(e) Fla.R.Civ.P., Failure to Prosecute.

The only evidence in the record pertinent to “good cause” is the bare assertion by plaintiff’s counsel that the delay “is not the fault of the plaintiff” and that the plaintiff had “been (in) communication with the Department of Transportation (not the defendant) with regard to determining the assets of the defendant”.

We are of the opinion that such explanations do not constitute good cause. True, we are not privy to what other cause the plaintiff may have expressed orally at the hearing on the reinstatement, but the rule unequivocally requires that the good cause be in writing at least five days before the hearing. See Koppers Co., Inc. v. Victoire Development Corp., 284 So.2d 193 (Fla. 1973).

We therefore reverse the order of reinstatement and direct that the case be dismissed under the authority of Laug v. Murphy, 205 So.2d 695 (Fla. 4DCA 1968).

REVERSED.

CROSS and DAUKSCH, JJ., concur.


author: BOYER, Judge.

text:
    In re the MARRIAGE OF James M. JOHNSON, Husband and Sydna Cheryl Johnson, Wife.
    No. GG-473.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1977.

      James M. Wallace, Bradenton, for appellant.
    Joseph A. Sheffield of Roberts & Sheffield, Marianna, for appellee.
   BOYER, Judge.

This is an appeal by the wife from that portion of an “Order Modifying Child Support and Visitation” reducing child support payments and retrospectively measuring delinquent child support payments by such reduced amount.

The husband petitioned for modification of child support on the grounds that: (1) He has since remarried, has changed jobs and is now making less than he was on the date of the final judgment, and (2) the wife herein is remarried. He also argues his lack of counsel at the time of dissolution.

The wife contends that the changed circumstances of the husband are voluntary in nature and cannot warrant a reduction in child support. The remarriage of the husband, with its attendant expenses, is neither relevant nor material to the issue of child support. Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938) and Walden v. Walden, 114 So.2d 815 (Fla.2nd DCA 1959). In addition, the wife contends the record reveals that the husband’s job changes were voluntary and, indeed, his present job has increased his earnings from what they were at the time of the dissolution.

We agree and reverse.

Florida courts have uniformly held that a reduction in child support may be warranted upon changed circumstances which are substantive, material, involuntary and permanent in nature. (See Bergh v. Bergh, 160 So.2d 145 (Fla. 1st DCA 1964); Groves v. Groves, 260 So.2d 858 (Fla. 1st DCA 1972); and Brown v. Brown, 315 So.2d 15 (Fla.3rd DCA 1975). The record sub judice reveals that while the husband does show certain changes in circumstances the changes were strictly voluntary in nature and cannot warrant a reduction in child support. As to the husband’s lack of counsel at the time of dissolution, we agree with our sister court, the Fourth District, where that court stated in Hicks v. Hicks, 313 So.2d 64, 65 (Fla.4th DCA 1975):

“ * * * Nor, in this context, is lack of advice of counsel such a ground; surely, a husband does not need a lawyer to advise him on the amount he should pay for child support.”

Since we reverse on the reduction in child support, the reduction of delinquent child support payments is necessarily reversed.

The motion of appellant-wife for an award of fees and costs on account of legal services on appeal is GRANTED. The case is remanded to the trial court for determination and assessment of the amount of reasonable fees for the services of appellant’s attorney on appeal. (See Dresser v. Dresser, 350 So.2d 1152 (Fla.App.1st DCA 1977).

Reversed and remanded with directions.

McCORD, C. J., and MELVIN, J., concur.


text:
    Michael D. McINTIRE, Appellant, v. Lynn O. McINTIRE, Appellee.
    No. HH-8.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1977.
    Thomas J. Guilday of Huey, Camper & Guilday, Tallahassee, for appellant.
    Russell H. Showalter, Jr. of Duszlak & Showalter, Jacksonville, for appellee.
   BOYER, Judge.

This is an interlocutory appeal by the husband (appellant herein) from an order denying his motion to transfer for improper venue.

The parties were divorced in Georgia and thereafter the wife moved to Duval County, Florida and the husband to Leon County, Florida. The wife filed a complaint in Du-val County seeking enforcement and establishment of a foreign divorce decree, and the husband answered raising improper venue as an affirmative defense under F.S. 47.011 and counterclaimed for establishment of the foreign decree. At the same time he filed a motion to transfer the action to Leon County pursuant to Fla.R.Civ.P. 1.060 and 1.140(d). At a hearing on the motion, the trial court found that absent a waiver by the husband, the proper venue was in Leon County per Ruscoe v. Ruscoe, 327 So.2d 93 (Fla. 4th DCA 1976) and directed memoranda be filed on the waiver issue. Subsequently, the husband filed a notice of voluntary dismissal of his counterclaim pursuant to Fla.R.Civ.P. 1.420 and the wife filed a motion to strike the notice. The trial court entered an order denying the husband’s motion to transfer and granting the wife’s motion to strike the notice of voluntary dismissal.

The husband now urges that the trial court erred in denying his motion to transfer for improper venue and in granting the wife’s motion to strike the notice of voluntary dismissal of his counterclaim.

We agree with our sister court in Ruscoe, supra, that when a complaint to establish a foreign decree is brought, F.S. 47.011 controls and the action should be brought in the county where the responding party resides. In so holding, we reject the wife’s contention that the cause of action accrued in Duval County where the child support and alimony payments were made and that therefore venue was proper in that county.

The wife contends that the husband failed to follow Fla.R.Civ.P. 1.140(b) when he filed his motion to transfer alleging improper venue at the same time he filed his responsive pleading and that once he filed that motion he could not then plead to the merits and ask the trial court in Duval County to .take jurisdiction of an independent counterclaim since that constituted a clear waiver of his venue privilege.

Fla.R.Civ.P. 1.140(b) provides that a party may assert the defense of improper venue either in the form of a motion or he may assert it as an affirmative defense in his answer: Therefore it was proper for the husband to raise the defense of improper venue in his answer. In so doing, he did not waive the defense merely because he filed it with a counterclaim in a responsive pleading. Brennan v. Brennan, 192 So.2d 782 (Fla. 3rd DCA 1966).

As to the husband’s second alleged error, we hold that a counterclaimant can dismiss his counterclaim without leave of court provided the conditions of Fla.R. Civ.P. 1.420(a)(1) are otherwise met. (See Fla.R.Civ.P. 1.420(c).)

REVERSED.

McCORD, C. J., and MELVIN, J., concur.


text:
    Jean CASIMIR, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1486.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, NATHAN and KEHOE, JJ.
   PER CURIAM.

In this case, we are called upon to decide whether the evidence relied upon by the state in support of the second degree murder charge was sufficient, substantial, and competent to sustain the defendant’s conviction. We have concluded that there was substantial competent evidence to support the guilty verdict rendered by the jury; accordingly, the judgment and sentence entered by the trial court are affirmed.

Appellant, defendant below, contends that the facts surrounding the incident are unclear and contradictory and that his guilt was not conclusively established.

We have carefully examined and considered the transcript of testimony and the evidence offered and conclude that, while some of the testimony may have been unclear and confusing, there was substantial, competent evidence to support the jury verdict. Songer v. State, 322 So.2d 481 (Fla. 1975). Therefore, because appellant has failed to demonstrate any reversible error, his conviction for murder in the second degree is affirmed.

Affirmed.


text:
    STATE of Florida and State of Florida Department of Highway Safety and Motor Vehicles, Appellants, v. Bernard BROWNSTEIN, Appellee.
    No. 76-2327.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.
    Edwin E. Strickland and Enoch J. Whitney, Tallahassee, for appellants.
    Mark R. Baer, Miami, for appellee.
    Before HAVERFIELD, NATHAN and HUBBART, JJ.
   PER CURIAM.

Respondent, State of Florida, Department of Highway Safety and Motor Vehicles, appeals a circuit court order granting certiorari, thereby temporarily reinstating Bernard Brownstein’s driving privileges, which had been suspended.

The sole question is whether the circuit court erred in granting the writ of certiora-ri in the absence of the record showing that the Department acted without jurisdiction or failed to follow the essential requirements of law when it revoked Brownstein’s driving privileges and denied reinstatement of such privileges. We reverse.

In May, 1972, Brownstein’s driving privileges were suspended by the Department as authorized by Section 322.27, Florida Statutes. Shortly thereafter, he filed a petition for certiorari in the circuit court seeking review of his suspension. In 1974, his petition was dismissed by the circuit court pursuant to Rule 1.420(e), Fla.R.Civ.P., for lack of prosecution.

Between 1972 and 1974, Brownstein continued his bad driving habits and accumulated additional driving convictions while driving his car during the revocation period. The Department entered an order in September, 1974, revoking Brownstein’s driving privileges for a period of five (5) years as an habitual offender, as authorized under Section 322.27(5), supra. Brownstein then requested and received an administrative hearing from the Department seeking reinstatement of his driving privileges. In July, 1976, after hearing, his petition was denied. Brownstein then filed his petition for certiorari, the order on which is here on review.

Brownstein’s petition for certiorari in the circuit court alleges that Sections 322.264, 322.27(5) and (6), and 322.271, Florida Statutes, known as the Florida habitual traffic offender act, are unconstitutional. The circuit court in its order granting certiorari, did not pass on the constitutionality of these statutes, but simply granted temporary driving privileges for working purposes for ten (10) hours per day, seven (7) days per week.

The habitual traffic offender act was held to be constitutional in Zarsky v. State, 300 So.2d 261 (Fla.1974); Abraham v. State, 301 So.2d 11 (Fla.1974).

Viewing the entire record, we conclude that the Department did not act without jurisdiction or depart from essential requirements of law.

Reversed.


text:
    EXCHANGE NATIONAL BANK OF CHICAGO et al., Appellants, v. ROTOCAST PLASTIC PRODUCTS, INC., etc., et al., Appellees.
    No. 76-2347.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1977.

      Broad & Cassel and Lewis I. Horwitz, Bay Harbor Island, for appellants.
    Pettigrew, Arky, Freed, Stearns, Watson & Greer, Miami, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   PER CURIAM.

Defendants appeal an ex parte order commissioning Janet R. Pimley for the service of summons and complaint upon defendant Steven Bronson.

Plaintiff, Rotocast Plastic Products, filed a complaint for usury, fraud, etc. against Exchange National Bank of Chicago, Edward Sax, Lincolnshire Financial Services and Steven Bronson, vice-president of Exchange National Bank. The complaint alleged that Bronson was a resident of Chicago, Illinois. All defendants filed motions to dismiss which were denied except that of Bronson, whose dismissal motion was granted for insufficiency of service of process. Thereafter, plaintiff filed a motion for an order issuing a commission to Janet R. Pim-ley for the service of process on defendant Bronson in accordance with Sections 48.161, 48.181, Florida Statutes (1975) and Fla.R. Civ.P. 1.070. Without a hearing, the court granted the motion and entered an order commissioning Pimley for the service of summons and complaint on Bronson. Bronson and the other defendants appeal. We reverse.

The courts have the inherent power to appoint a process server upon default or disqualification of the sheriff or other officers so authorized, and under Fla.R.Civ.P. 1.070(b), the court may appoint any competent person not interested in the action to serve the process. See Petition of Stoll, 309 So.2d 190 (Fla. 1st DCA 1975). Plaintiff’s motion fails to allege disqualification, default or inability on the part of the sheriff or deputy sheriffs of Dade County and further contains no allegation as to the competence or disinterest of Janet Pimley.

Rule 6 (general jurisdiction division) of the Local Rules of Practice for the circuit court of the 11th Judicial Circuit provides in pertinent part:

“RULE 6
“ORDERS FOR APPOINTMENT OF COURT OFFICERS
* * * * * *
“When an attorney requests the appointment of a process server, he shall submit a motion, under oath, stating his reasons with particularity, why he cannot use the Civil Division of the Sheriff’s Department, together with an order as described in the above paragraphs.”

Plaintiff’s motion was not made under oath, nor did it state why the civil division of the sheriff’s department could not be used.

Reversed.


author: McCORD, Chief Judge.

text:
    Michael EVANCO, Appellant, v. STATE of Florida, Appellee.
    No. EE-465.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1977.
    Selig I. Goldin of Goldin & Cates, Gaines-ville, for appellant.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

On August 18,1977, our opinion was filed in the above appeal, 350 So.2d 780. In the final paragraph thereof, we relinquished jurisdiction to the trial court with directions that a hearing be held to determine whether or not a threat or threats had been made to Officer Hoover or his family upon which he grounded his refusal to answer certain questions upon appellant’s discovery deposition and also to determine whether or not appellant was prejudiced by the officer’s failure to answer the questions. Thereafter, such hearing was held and the trial judge has entered his order making the following findings of fact:

“A. No threats were made upon Officer Hoover before trial by the Appellant nor by anyone acting in concert with him, or at his direction or request nor upon his behalf.
B. There is evidence that Appellant had contact with Officer Hoover on two occasions since the trial. On the first Appellant is alleged to have told Officer Hoover, in substance, ‘If you want to stay alive, you’ll get out of town.’ On the second Appellant is alleged to have told Officer Hoover, ‘My people are out. We will kill you and your family.’ Upon the last of these contacts which occurred on the same day, Appellant allegedly spat upon Officer Hoover and called him a ‘S.O.B.’ The testimony of Officer Hoover with respect to these conversations is uncorroborated and denied by appellant.
C. Any threats made subsequent to the trial are irrelevant to the issues assigned to this Court for decision.
D. The verdict of the jury rested largely upon the substantive testimony of Officer Hoover. The trial may have resulted in the different verdict had the appellant been accorded the opportunity to attack or cast doubt upon the credibility of Officer Hoover by evidence which might have been developed upon inquiry into those matters which he refused to disclose.”

The trial judge further found:

“The Appellant’s right to effective trial preparation and proper cross examination were prejudiced by the refusal of Officer Hoover to disclose his residence address, his marital and parental status.”

We have considered the record made upon remand, the trial court’s above findings, and the brief of appellant filed pursuant to our order allowing supplemental briefs. Appellee did not file a supplemental brief. We find no error in the findings of the trial court and reverse for a new trial.

RAWLS and SMITH, JJ., concur.


author: RYDER, Judge.

text:
    Raymond BRITT, Appellant, v. STATE of Florida, Appellee.
    No. 76-1371.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    As Amended Dec. 2, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and J. Marion Moorman, Sp. Asst. Public Defender, Winter Haven, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant Raymond Britt entered a plea of guilty to a charge of breaking and entering a building other than a dwelling house with intent to commit a misdemeanor. The trial court adjudicated him guilty and sentenced him to a term of fifteen years in prison with credit for jail time. The court immediately suspended said sentence and placed appellant on fifteen years probation.

Subsequently, appellant’s probation supervisor filed an affidavit alleging that appellant had violated the terms of his probation. Appellant entered a guilty plea to these violations and the trial court sentenced him to five years in prison followed by probation for the balance of the original fifteen year sentence.

Thereafter, appellant moved to withdraw his pleas of guilty to the original charge and to the probation violation charge and to vacate the sentence imposed upon him. This motion we deem to have been filed pursuant to Fla.R.Crim.P. 3.850. After hearing, the trial court denied the motion and appellant appeals.

Appellant argues the trial judge should have granted his motion to set aside his pleas because he did not enter into those pleas voluntarily because both his own court-appointed counsel and the court led him to believe the maximum sentence was fifteen rather than five years.

It is clear from the facts of this case that there was a general misapprehension among all the parties involved as to the length of the time which appellant could be imprisoned. Even the trial court believed that appellant could receive a fifteen year sentence when, in fact, under Sections 810.-05 and 775.082(5), Florida Statutes (1973), appellant could only receive a five-year sentence.

A person induced to give up his right to a trial by a misapprehension of circumstances surrounding his plea is entitled to vacation of any judgment and sentence resulting from such a plea. Bartz v. State, 221 So.2d 7 (Fla.2d DCA 1969).

In view hereof, the order appealed from should be, and is hereby, reversed; and this cause is remanded for further proceedings not inconsistent herewith.

OTT, Acting C. J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, Appellant, v. VINOY PARK HOTEL COMPANY, a Florida Corporation, et al., Appellees.
    Nos. 76-1739 and 76-1805.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.

      Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellant.
    Donald A. Pleasants of Shackleford, Far-rior, Stallings & Evans, P.A., Tampa, for appellee Vinoy Park.
   McNULTY, JOSEPH P. (Ret.), Associate Judge.

In this eminent domain proceeding the appellant city filed its petition to condemn certain waterfront property in downtown St. Petersburg for the public purpose of a park and recreational area. By its resolution authorizing the condemnation, the city determined that it had “for many years needed additional waterfront property for the purpose of expanding its parks and recreational program” and “that additional lands should be acquired for this purpose to accommodate its citizens’ needs for parks and recreational” areas. A portion of ap-pellee hotel’s property is sought to be condemned herein pursuant to that resolution.

The hotel responded and resisted the condemnation on the grounds that no public necessity existed for a park or recreation area on its parcel sought to be condemned and that the city had no immediate intention of using the parcel for such purpose. Rather, it contended, the city intended to acquire it for speculation — to hold it for some unknown future use or for resale.

The city’s testimony at trial was consistent insofar as intended use as a park or recreational area is concerned, but the exact nature of the park was not precisely established. One representative of the city, for example, testified that the subject parcel was to be used as a part of a larger regional park hopefully to be developed on all downtown waterfront property owned by the city. Another testified that the parcel would be used as a “neighborhood park with picnic and playground facilities.” While still another testified that it would be used as a part of a scenic parkway or drive without any picnic or playground facilities. Park use in one form or another, however, as noted, was consistently testified to.

Notwithstanding, the trial court made its finding that the city had not borne its burden of proof on the issue of public necessity and made findings of fact, summarized as follows, to support that conclusion:

(1) That the city showed that the property is only desirable for aesthetic purposes, rather than needed therefor;
(2) That the city failed to produce evidence of need for a regional park;
(3) That the city had made no effort to establish that a need exists for a smaller or neighborhood park in the area; while the hotel’s evidence affirmatively showed that the surrounding population was well served by parks in the area;
(4) That the city’s witnesses are in conflict on the nature of the intended care, leaving the court in a position , where it can only speculate as to use and thus cannot find a public necessity for any particular use;
(5) That the city failed to present evidence as to when the property would be used;
(6) That the city should be estopped from condemning the property by virtue of its prior actions in inducing the owner to fill this property (and other lands owned by the city) at its own expense;
(7) That the condemnation of the subject parcel would exhaust the bond issue passed to develop all parks; and
(8) That the city may not condemn the property since it did not furnish the landowner with a valid description and failed to make a valid survey a part of the record at trial.

Judgment was thereupon entered in favor of the hotel and against the city. This appeal ensued. We reverse.

At the outset, we summarily dispose of the last point involved, that relating to the legal description in the record. While it is true that the legal description pleaded in the petition was inaccurate in that by its terms it did not “close,” the undisputed testimony of Campbell, an expert surveyor called by the city, showed that he could locate the parcel from the description, that he had in fact surveyed the property and that, because the land was monumented, he could take the legal description and disregard direction and distance (where the errors were) and still arrive at the same parcel of land. This was sufficient, we think, and a contrary conclusion by the court was error. A trier of fact simply should not disregard unrebutted, sworn, affirmative relevant testimony absent some reason why it ought not be relied upon. None appears here. The witness was a disinterested one, he was not discredited or impeached on cross-examination and he testified affirmatively that he had in fact found the subject parcel — not merely that, in his opinion, it could be found. The city could show no more.

With the respect to the remaining findings, we think this case is essentially controlled by the recent supreme court case of City of Jacksonville v. Griffin. First of all, it appears that the trial court was under the impression that it was necessary for the city to show that it “needed” the subject parcel for a park or recreational area. This is not the law. It is only necessary that they show a “reasonable necessity” therefor. With respect to this standard, we are of the view that when a city acting within its legislative and executive prerogatives resolves in its discretion to exercise any of the powers authorized by its charter — and this includes here the authority to acquire and develop parks and recreation areas— the courts are without authority to substitute their discretion for the city’s. Concerning parks, indeed, it may always be argued that a city doesn’t “need” them, as perhaps, it may “need” roads, jails, and sites for governmental buildings or projects; but surely it has a right to decide if it wants them and to acquire and develop them nonetheless. We think it sufficient for a condemning authority merely to establish that it properly exercised, in the procedural sense, its discretionary powers under law. The burden then shifts to the landowner who would upset the decision made to show either bad faith or an abuse of that discretion.

Moreover, it is not necessary that the city establish or show precisely when the proposed use would be developed or come into being. Quoting from Central and Southern Florida Flood Control District v. Wye River Farms, Inc., the court in Griffin, supra, stated:

“ . . . [I]t is not necessary that a condemnor, representing the state or a political subdivision of the state, have funds on hand, plans and specifications prepared and all other preparations necessary for immediate construction before it can determine the necessity for taking property for a public use. In point of fact, it is the duty of public officials to look to the future and plan for the future. . . . ” (Emphasis supplied by the Griffin court.)

The trial court here was without authority, then, to deny the taking for lack of showing of an intended present use.

Parenthetically, too, we dismiss as irrelevant the fact that the instant condemnation would “exhaust” the bond issue passed to finance development of parks generally.

Finally, we dispose of the estoppel issue. With commendable candor the hotel concedes it has found no authority in support of estoppel as a vehicle for relief in this type of case. We have found no such authority either. To the contrary, it appears that estoppel generally will not be applied to hinder the exercise of a valid governmental function, which here must include the exercise of executive power to condemn property under eminent domain.

In view whereof, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

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

      . 346 So.2d 988 (Fla. 1977).

      . Id.

        . Id. Also compare Knappen, et ux. v. Division of Administration, State of Florida, Department of Transportation, 352 So.2d 885 (Fla. 2d DCA 1977).

      . 297 So.2d 323 (Fla. 4th DCA 1974).

      . See City of Fort Lauderdale v. Fort Lauderdale Industrial Sites, Inc., 97 So.2d 47 (Fla. 2d DCA 1957).


text:
    Catherine WRAY, Appellant, v. Paul WILLIAMS and Barbara Williams, Appellees.
    No. 76-1992.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.

      Thomas R. Fay, Tampa, for appellant.
    Gerald M. Taylor, of Levine, Freedman, Hirsch & Levinson, Tampa, for appellees.
   PER CURIAM.

This is a hotly contested child custody case. The question presented to us is whether the trial judge abused his discretion by returning custody of two children to their father after they had been living with their grandmother for nine years. Our answer is no.

The appellant is the paternal grandmother who lost custody of the children, and the appellees are the natural father and his wife.

Tina and Cathy Williams were adjudicated to be dependent children and were placed in the legal custody of appellant on August 2, 1971. The girls had been in appellant’s actual custody since their early infancy in 1967 following the divorce of appellee, Paul Williams, and his first wife, their mother. On September 16, 1975, shortly after his third marriage, Paul Williams, joined by his wife, Barbara, filed his petition for custody of the girls. The children’s interests before the trial court were represented neither by the Department of Health and Rehabilitative Services nor by a guardian ad litem.

After discovery, psychological and psychiatric examinations, and social investigations by a court counselor, there were a series of hearings, resulting in the order of December 9,1976, appealed here, granting custody of the girls to their father. On December 22, 1976, this court denied appellant’s motion for review and petition for constitutional stay writ.

After considering the evidence before him, the trial judge was required to base his decision on what he felt were the best interests and welfare of the children over and above all conflicting needs and interests of other parties. Hosking v. Hosking, 318 So.2d 559 (Fla.2d DCA 1975).

This is a difficult and close case, and it may well be that any one of us sitting as the trier of fact would have concluded that the welfare of the girls required them to remain with their grandmother. But, that is not the test, and we may not substitute our judgment for his. Instead, the appellant here must show the trial judge clearly abused his discretion. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). After a study of the record before us, we conclude that burden has not been met, and that there is substantial competent evidence underpinning the custody order before us.

Almost one year has elapsed since the change of custody order and we cannot know what has happened to the girls. But, we note they remain under the jurisdiction of the court while they are minors or until the court relinquishes jurisdiction. Therefore, under the powers with reference to dependent children granted by Chapter 39, Florida Statutes, (1975), the court has sufficient authority to monitor the case and enter such further orders of custody, support, visitation, protective supervision by the Department of Health and Rehabilitative Services, and professional counseling for the children, parents or guardians, as may be necessary.

Affirmed.

HOBSON, Acting C. J., and OTT and DANAHY, JJ., concur.


author: PER CURIAM. HOBSON, Acting Chief Judge,

text:
    FLORIDA SUNSHINE COAST DEVELOPMENT COMPANY, INC. and Donna Manley, Appellants, v. Frank McCLUNG, Appellee.
    No. 77-138.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1977.
    Charlie Luckie, Jr., of Macfarlane, Ferguson, Allison &' Kelly, Tampa, for appellants.
    Law Offices of Frank McClung, Brooks-ville, for appellee.
   PER CURIAM.

The trial court awarded plaintiff/appel-lee a judgment for $11,174.99 against defendants/appellants, Florida Sunshine Coast Development Co., Inc. and Donna Manley. We affirm as to the judgment entered against the corporate defendant but reverse as to the judgment against Donna Manley.

Plaintiff, a practicing attorney, sued defendants for legal fees. The evidence disclosed that Ms. Manley, president and sole owner of Florida Sunshine Co., retained plaintiff to obtain security for two nonin-terest bearing promissory notes totaling in excess of $200,000, payable to Florida Sunshine by two other corporations. Plaintiff was paid a retainer fee of $1,500 with additional fees to be paid later. These additional fees were confirmed by plaintiff’s letter of May 15, 1976, directed to Ms. Manley, which in part stated:

In order to confirm our telephone conversation of this same date concerning my attorney fees in representing your company in the collection of the two promissory notes against T.K. & R., Inc. and Gulf Land Surveyors, Inc., my charges will be $250 per suit plus 10% of the amount to be collected. It was necessary, of course, to file two suits since there were two notes against the separate corporations. (Emphasis added.)

Suits were filed by plaintiff attorney against each of the two corporations. A settlement resulted with the notes being redrawn to provide for interest, attorney’s fees in the event of default, and, most importantly, for the new notes to be secured by mortgages. Shortly thereafter plaintiff collected in excess of $12,000 from the two corporations, and from these proceeds he was paid part of his fees. A dispute arose over whether the remainder of the fees were immediately due plaintiff, or whether they were payable only as Florida Sunshine received payments under the newly secured notes.

In a nonjury trial the court concluded that under the retainer agreement, plaintiff was presently entitled to his fees for having successfully obtained the secured notes in favor of Florida Sunshine. Our review of the record discloses substantial, competent evidence to support this finding, which was the legal basis for the judgment entered against defendant Florida Sunshine.

Plaintiff seeks to sustain his judgment against Ms. Manley on the basis of an admission in defendants’ answer that plaintiff was employed on behalf of Florida Sunshine and Ms. Manley. At trial after plaintiff rested, counsel for Ms. Manley claimed such admission was inadvertent and sought to amend her pleadings. Plaintiff objected, and the trial court denied the motion. In so doing we think the trial court erred.

Fla.R.Civ.P. 1.190(b) provides that parties should be freely allowed to amend, unless the party objecting to the amendment can show that it will prejudice his case. We cannot see how plaintiff’s case would have been prejudiced by the amendment defendants sought. From the evidence it appears most likely that when Ms. Manley retained plaintiff she did so on behalf of Florida Sunshine and not in her individual capacity. The notes sued upon were both payable to and held by Florida Sunshine, and not Ms. Manley. The plaintiff’s letter mentioned previously acknowledged representation of Florida Sunshine and made no reference to representation of Ms. Manley individually. Plaintiff does not suggest any fraud or overreaching.

On the other hand, it appears to us that the trial court’s refusal to grant the motion to amend did, in fact, prejudice Ms. Manley. A corporation enters contracts through its officers, and where, as here, the evidence clearly reflects the legal services were sought on behalf of and for the benefit of the corporation, there is no basis for entry of a judgment individually against the corporate officer who requested that service. See generally, 19 Am.Jur.2d, Corporations, Section 1341 (1965); 7 Fla.Jur., Corporations, Section 305 (1956). Here plaintiff attorney initiated litigation against two corporations on behalf of Florida Sunshine. He effectuated a settlement by which Florida Sunshine’s notes were secured. Ostensibly Ms. Manley had no legal interest in the corporate notes. The corporation was obviously benefited, ■ but there was no showing that Ms. Manley sought plaintiff’s services in her own behalf, or that the services he rendered benefited her individually. Clearly, to impose personal liability on Ms. Manley as a result of the corporation’s transaction would expose her to a liability not ordinarily visited upon officers of properly organized corporate entities.

Had the trial judge allowed defendants to amend their answer, as we think he should have, it would have been appropriate to permit plaintiff to present whatever evidence he may have had bearing on Ms. Manley’s liability. Though it is difficult for us to envision that Ms. Manley employed plaintiff on her own behalf as well as the corporation’s, we realize that this possibility does exist.

Accordingly, the judgment against Ms. Manley is vacated, and the cause remanded with directions to the trial court to grant the amendment requested by defendants. Plaintiff should be permitted to present additional evidence as to Ms. Manley’s liability if he so desires. The judgment against Florida Sunshine is affirmed.

Affirmed in part, reversed in part, and remanded to the trial court.

SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.

HOBSON, A. C. J., dissents with opinion.

HOBSON, Acting Chief Judge,

dissenting.

I must respectfully dissent from that part of the majority opinion which holds that the trial judge abused his discretion in denying appellant Manley’s motion to amend her answer.

Appellee’s complaint was filed on November 13, 1975. The complaint alleged:

“3. On or about May 12, 1975, the Defendant, Donna M. Manley, hired the Plaintiff, FRANK McCLUNG to bring suit on two promissory notes, one in the amount of $185,022.42 against TK&R, INC., a Florida Corporation and the other note in the amount of $67,927.49 against GULF LAND SURVEYORS, INC., a Florida Corporation on behalf of the Defendants, FLORIDA SUNSHINE COAST DEVELOPMENT COMPANY, INC., a Florida Corporation and the Defendant, DONNA M. MANLEY.
“4. The Defendant, DONNA M. MANLEY, agreed to pay the Plaintiff the sum of $250.00 plus the sum of 10% of the amount to be collected.
“5. The Plaintiff sued on said notes and performed legal services up to and through a settlement which was satisfactory to the Defendant, DONNA M. MANLEY and the Defendant, FLORIDA SUNSHINE COAST DEVELOPMENT COMPANY, INC., a Florida Corporation.”

The appellants’ answer filed December 11, 1975 admits paragraphs 3 and 5 of the complaint. The appellants answered paragraph 4 of the complaint as follows:

“2. Defendants admit paragraph 4 except that the fee agreement was that plaintiff would receive 10% of the amount actually collected and $250.00 per suit.”

The second defense in the answer alleges:

“Defendants allege that the amount owed by them to plaintiff is $1,950.00, and said amount has been paid in full through the $1,500.00 payment in advance and $450.00 rightfully retained by the plaintiff from the payments by TK&R, INC., and GULF LAND SURVEYORS, INC., toward the settlement amounts.”

It is clear that appellants in their initial pleading admit that appellee was retained to represent both appellants. After pretrial discovery the case came on to be tried without a jury before the Honorable L. R. Huffstetler, Jr. on July 15, 1976. After appellee rested, the appellants moved for a directed verdict or a dismissal of the complaint. It was at this juncture that appellants first contested Mrs. Manley’s individual liability for the attorney fees. The attorney for Mrs. Manley argued that she was entitled to a directed verdict or dismissal because there had been no evidence introduced to prove that she had retained Mr. McClung to represent her in her individual capacity. Appellee correctly noted that the face of the pleadings admitted this individual liability, and hence no proof was necessary. Resolution of appellants’ contest of Mrs. Manley’s personal liability and ruling on the motion for directed verdict was postponed when Judge Huffstetler recused himself from the case because he previously presided over a hearing involving the estate of Mrs. Manley’s deceased husband.

Thereafter, on August 2, 1976, the Chief Judge, John W. Booth, assigned this case to the Honorable John W. McCormick. The entire plaintiff’s case was transcribed and submitted to Judge McCormick. The case was then set for a continuation of the hearing before Judge McCormick on November 30, 1976. Judge McCormick had read the transcript of the hearing, including the argument on the motion for directed verdict, and allowed the attorneys to re-argue the motion for directed verdict before him. It was at this time, after appellee had presented all his evidence at trial and more than eleven months after appellants filed their answer, that appellants first sought to amend their answer to deny that Mrs. Manley hired appellee to represent her in her individual capacity. The ground for such motion was that the answer mistakenly admitted such allegation.

After argument by counsel the court denied the motion to amend and stated his reason therefor as follows:

“. . .1 think to allow you to amend, at this late date, during this hearing, places him in an untenable position of having to then come back in with evidence that changes his whole approach to the case, and I think that his law is good, and the motion is denied.” (emphasis added)

It is well settled that an admission in a pleading is, as between the parties, accepted as fact without the need for supporting evidence. Sponholtz v. Sponholtz, 180 So.2d 497 (Fla.3d DCA 1965); Vann v. Hobbs, 197 So.2d 43 (Fla.2d DCA 1967).

Whether or not Mrs. Manley retained Mr. McClung to represent her individually was not an issue to be tried at the initial trial of the case which began on July 15, 1976. Obviously, Mr. McClung had not prepared himself to try that issue. Mrs. Manley filed her answer on December 11, 1975 and did not attempt to amend her answer as to this issue until the continuation of the hearing on November 30, 1976. Mrs. Manley had ample opportunity to move to amend at an early stage in the proceedings. She did not even move to amend after the plaintiff rested his case on July 15, 1976. Her sole argument at that time was for a directed verdict or dismissal of the complaint.

Mrs. Manley compounded the detriment to Mr. McClung by failing to attempt to amend the pleadings prior to the continued hearing, four months after the “issue” was first noted. Had Mrs. Manley properly raised the issue during this interim, then perhaps Mr. McClung would have been given a fair opportunity to discover, accumulate, and present evidence on the issue.

Mrs. Manley argues that Mr. McClung would not be prejudiced by this late amendment. From the record it is abundantly clear that if Mr. McClung had been faced with this issue prior to presenting his case and at least prior to the continuation of the trial on November 30, 1976, he could have presented evidence to show that Mrs. Manley and her corporation, as she refers to it throughout the record, were acting as one and the same.

After a dispute arose as to the manner in which the attorney fees were to be paid, Mrs. Manley, as president of the corporation, on October 27, 1975, wrote Mr. McClung and in the letter stated:

“I came to you as any person would to an attorney, expecting you to protect my financial interest and to be properly compensated in a timely manner for your services.” (emphasis added)

I thoroughly disagree with the statement in the majority opinion, “Though it is difficult for us to envision that Ms. Manley employed plaintiff on her own behalf as well as the corporation’s, we realize that this possibility does exist.”

It is not disputed that amendments to pleadings should be liberally granted; however, it is fundamental in the law that the trial court in ruling on a motion to amend exercises a sound judicial discretion. Whether the trial court grants or denies the motion, his judgment cannot be reversed without a showing of an abuse of sound judicial discretion. In Houston Texas Gas & Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla.2d DCA 1961) this court stated the following on page 40:

“Under Rule 1.15(e), Florida Rules of Civil Procedure, 30 F.S.A., the trial judge is authorized to permit amendments in furtherance of justice at any time. However, in doing so he exercises a sound judicial discretion. His conclusion to permit or refuse an amendment is measured by this standard and his judgment will not be disturbed in the absence of some demonstration that he has abused his discretion. In the instant case the trial judge gave numerous reasons for declining the amendment. After the trial had proceeded into the second day, and in view of the fact that the appellant had had numerous opportunities to amend its petition in the early stages of the proceedings, long before the case came on for trial, the judge concluded that it would be unfair to the property owners to permit such substantial change in the middle of the trial. We can not find that he abused his discretion in so holding.”

In Triax, Inc. v. City of Treasure Island, 208 So.2d 669 (Fla.2d DCA 1968), this court stated at page 670:

“Furthermore, while our courts are generally liberal in permitting the amendment of a pleading, this liberality gradually diminishes as the case progresses.” [Citing United States v. State, 179 So.2d 890 (Fla.3d DCA 1965)]

For the foregoing reasons I am of the opinion that Mrs. Manley has not shown that the trial court abused its sound judicial discretion and, therefore, I respectfully dissent from that portion of the majority opinion that reverses the trial judge’s denial of Mrs. Manley’s motion to amend.

      . Mrs. Manley was the sole stockholder.