author: SMITH, Judge.

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. C. J. GAYFER’S AND CO., INC., et al., Appellees.
    No. KK-353.
    District Court of Appeal of Florida, First District.
    Jan. 16, 1979.

      K. Jeffrey Reynolds of Beggs & Lane, Pensacola, for appellant.
    Charles A. Schuster of Fisher, Bell, Hahn, Winn & Ptomey, and James M. Wilson, Pensacola, for appellees.
   SMITH, Judge.

An interlocutory appeal from a partial final summary judgment on a question of liability insurance coverage. Travelers issued a policy of liability insurance to a plumbing contractor. While the policy was in effect the contractor installed a roof drainage system in the attic of Gayfer’s Pensacola store. After the policy expired, a joint in the drainage system failed, discharging rain water into the store. Gay-fer’s filed suit against the contractor under various theories of negligence and implied warranty to recover for property damaged by the leakage and for loss of use of undamaged property left idle when the store was closed for a day following the drainage system failure. Gayfer’s joined Travelers as the contractor’s liability insurer.

The policy Travelers issued to the contractor is similar to other widely used forms of contractor’s public liability insurance contracts. See 1 Long, The Law of Liability Insurance, Section 10.02 et seq. (1966). The insured may purchase liability coverage for a wide range of situations and activities, specified in the body of the policy and referred to as “hazards.” Each requires payment of a separate premium. These include: “Premises — Operations”, “Elevators”, “Independent Contractors”, “Completed Operations”, and “Products.” For the coverages selected, the policy recites that:

“Travelers will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this section applies, caused by an occurrence . . . .”

The face of Travelers’ policy shows that the plumbing contractor purchased “Premises — Operations” and “Completed Operations” coverages. The “Premises — Operations” option affords the contractor coverage for liability arising out of his ongoing business operations. “Completed Operations”, on the other hand, provides coverage for liability arising out of completed or abandoned operations. Completed operations liability insurance for a contractor is the counterpart of products liability insurance for a manufacturer. The need for such insurance arose as courts increasingly recognized a contractor’s tort liability for injury or damage caused by the contractor’s negligence in performing a job, but occurring after the work has been completed. See Long, supra, at Section 11-07; New Amsterdam Casualty Co. v. Addison, 169 So.2d 877 (Fla. 2d DCA 1964); Nielson v. Travelers Indemnity Co., 174 F.Supp. 648 (N.D.Iowa 1959), affirmed, 277 F.2d 455 (8th Cir. 1959). The parties here agree that the drainage system was a completed operation of the contractor and that Gayfer’s damages are covered, if at all, under the policy’s completed operations coverage.

The parties also agree that the Travelers policy expired, by its own terms, about three months before the drainage system failed. The issue here, as before the trial court, is whether the completed operations coverage described in the Travelers policy is ambiguous and should be construed to obligate Travelers to indemnify the contractor for property damage which occurred after the policy expired. Both Travelers and Gayfer’s filed motions for summary judgment in the trial court. Travelers urged that the policy clearly informs the insured that covered property damage must occur while the policy is in force. Gayfer’s argued that although the policy is intended to be read as Travelers described, it is ambiguous, and an insured could reasonably conclude that completed operations coverage applies to damage occurring at any time after an operation is completed, regardless of whether the policy has expired. The trial court, without explanation, denied Travelers’ motion and granted Gayfer’s motion, thus holding that Travelers is obligated to indemnify the insured contractor, to the limits provided in the insurance contract, for any liability to Gayfer’s. We reverse.

A contract of insurance prepared and phrased by the insurer will be construed liberally in favor of the insured and strictly against the insurer. Where two interpretations may fairly be made, the one allowing the greater coverage will prevail. New Amsterdam Cas. Co. v. Addison, supra, at 881. But we recognize also that insurance contracts are complex instruments and that “ambiguity is not invariably present when analysis is necessary to interpret the policy.” Blue Shield of Florida, Inc. v. Woodlief, 359 So.2d 883 (Fla. 1st DCA 1978). Gayfer’s urges that the policy is ambiguous in two respects: first, because the only notice that covered property damage must occur during the policy period is found in the policy’s definition of “property damage”; and, second, that the definition of “property damage” may itself be fairly read as extending coverage when the causative negligence occurs within the policy period though that negligence is not manifest until damage occurs beyond the policy period.

Gayfer’s first argument is that the policy’s definition of “completed operations” defines the liability coverage for property damage or bodily injury arising out of a completed project without specifying when the damage or injury must occur, and that the qualification placed in the definition of “property damage” is hidden and too remotely located to limit the scope of the completed operations coverage.

We do not agree. The definition of completed operations does not mislead; it is simply silent as to the period of coverage. Insurance contracts commonly provide coverage for a specified period of time. An insured would expect to find a time limitation expressed in the policy, and would not reasonably assume, after reading only the completed operations definition, that he could cease paying premiums but enjoy completed operations coverage indefinitely. And when the insured • reads the entire Travelers policy, the definition of property damage clearly advises that covered damage must “occur during the policy period,” or be “caused by an occurrence during the policy period.”

As to Gayfer’s second point, that the “property damage” time limitation is itself ambiguous, we find that the definition’s reference to “loss of use caused by an occurrence during the policy period” is not ambiguous. An ambiguity arises when more than one interpretation “may fairly be given” to a policy provision. New Amsterdam Cas. Co. v. Addison, supra at 881. The interpretation Gayfer’s urges is, rather, a strained reading of the definition. The definition delineates two categories of covered damages: (1) “physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom”, and (2) “loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.” Gayfer’s argues that since the loss of use specified in the second category could occur after the policy expires, and does not require antecedent “physical injury”, an insured could reasonably claim coverage for liability on account of a loss of use when the only “occurrence during the policy period” was the insured’s negligent act.

We find, to the contrary, that the phrase “caused by an occurrence” informs the insured that an identifiable event other than the causative negligence must take place during the policy period. The term “occurrence” is commonly understood to mean the event in which negligence manifests itself in property damage or bodily injury, and it is used in that sense here. Prieto v. Reserve Ins. Co., 340 So.2d 1282 (Fla. 3d DCA 1977); New Amsterdam Cas. Co. v. Addison, supra, at 886. The Travelers policy defines occurrence, consistent with the common meaning, as:

an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.

The definition of property damage is intended to broaden the policy’s coverage with respect to loss of use by providing coverage when, as a result of an occurrence in the nature of an accident, tangible property is rendered useless but not physically injured or destroyed. 3 Long, The Law of Liability Insurance, Appendix B, Section 6, at App. 38 (1978). If there was such an occurrence during the policy period, liability coverage is provided though there was no injury as such to property and the ensuing loss of its use did not commence within the policy period. This coverage cannot reasonably be extended to include liability for the consequences of an occurrence beyond the policy period. The Travelers policy is typically complex, but it is not ambiguous.

The summary judgment for Gayfer’s is REVERSED and the cause is REMANDED with instructions to entry summary judgment for Travelers Insurance Company.

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

      . The policy defines property damage as follows:
      (c) Property Damage — The term “property damage” means the physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

      . The policy defines completed operations, in pertinent part, as follows:
      (2) the term “completed operations hazard” includes bodily injury and property damage arising out of operations or reliance upon a representation or warranty made at any time with respect thereto, but only if the bodily injury or property damage occurs after such operations have been completed or abandoned and occurs away from premises owned by or rented to the Named Insured. “Operations” include materials, parts or equipment furnished in connection therewith


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MIAMI NATIONAL BANK, Appellant, v. FORECAST CONSTRUCTION CORPORATION, David H. Siegel and Jeannette H. Siegel, and Herbert N. Siegel and Eleanor J. Siegel, Appellees.
    No. 77-2602.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 23, 1979.

      Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellant.
    Howard A. Rose, Miami Beach, for appel-lees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Miami National Bank, plaintiff, appeals a final judgment entered pursuant to a jury verdict in favor of defendants Herbert and David Siegel, personal guarantors on a promissory note.

On July 23, 1974 Miami National Bank loaned defendant Forecast Construction Corporation, a home builder, $20,000 which was evidenced by a promissory note payable on October 21, 1974. The note was individually guaranteed by Herbert Siegel, president of Forecast, and his father, David Sie-gel. Forecast defaulted on the note and the Bank instituted suit against Forecast and joined the Siegels as guarantors. Subsequently David Siegel entered into negotiations with the Bank, and the parties in April, 1975 agreed that David Siegel would make a $3,500 prepaid principal reduction plus all of the accrued interest on the debt and the future interest as it accrued for one year within which time he would attempt to pay the unpaid balance of the indebtedness. In addition, the Bank was given physical possession of two mortgages held by Forecast and the monthly payments received therefrom would be applied toward the indebtedness. David Siegel paid the Bank $3,500 and accrued monthly interest, and the Bank dismissed the suit. In December, 1975 David Siegel informed the Bank he was unable to continue the payments and offered an assignment of the mortgages in exchange for a release as guarantor as he contended was agreed by the parties in April. The Bank denied making any such agreement with respect to a release, refused the assignment and filed the present action against Forecast and the Siegels who primarily defended on the ground that in April, 1975 they had negotiated a novation agreement resulting in a revocation of their guarantees. The cause was tried by jury which returned a $15,209 verdict only against Forecast. The Bank moved for judgment in accordance with its motion for directed verdict on the ground that the Siegels failed to present evidence of legally sufficient consideration of a revocation agreement. The motion was denied, judgment was entered in favor of the Siegels in accordance with the verdict and this appeal ensued.

The Bank primarily contends that the evidence presented by the Siegels as personal guarantors was legally insufficient to prove up a novation agreement. We find merit in this contention.

A novation is a mutual agreement between the parties concerned for the discharge of a valid existing obligation by the substitution of a new valid obligation and like all contracts must be based upon adequate consideration. Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931). Two of the essential elements which must be presented in order for a novation to exist are (1) an agreement by the parties to cancel and extinguish the first debt or obligation, and (2) agreement of the parties that the second contract or agreement takes the place of the first obligation. United Bonding Ins. Co. v. Southeast Reg. Bldrs., Inc., 236 So.2d 460 (Fla. 1st DCA 1970). In addition, although the question of novation is controlled by the intention of the parties and generally is a proper question to be submitted and determined by the jury, the party pleading the novation as an affirmative defense has the burden of proving it by clear and satisfactory evidence. Babe, Inc. v. Baby’s Formula Service, Inc., 165 So.2d 795 (Fla. 3d DCA 1964).

With respect to the affirmative defense of novation, the evidence presented by David and Herbert Siegel consisted only of the testimony of David Siegel as to the installment payment arrangements (set out above) to pay the indebtedness of Forecast and the bare contention that if he could not pay off the outstanding indebtedness, then in lieu thereof the Bank would accept transfer of the two mortgages held by Forecast as complete satisfaction. The Siegels presented no documentary evidence in support of their defense of novation. Upon this record we conclude there is insufficient evidence upon which a jury could reasonably find an intention on the part of the parties to extinguish the original indebtedness. Cf. Lakeland Silex Brick Co. v. Jackson & Church Co., 124 Fla. 347, 168 So. 411 (1936); Amoedo v. Socarras, 311 So.2d 830 (Fla. 3d DCA 1975). Defendant David Sie-gel merely promised to pay in installments that which he as guarantor was already obligated to pay. Such a promise does not constitute a valid consideration; therefore, there was a failure of consideration. See Garner v. Thompson, 335 So.2d 302 (Fla. 2d DCA 1976). Second, there was no evidence of any intent on the part of the Bank to extinguish the original indebtedness. The original note was never cancelled. Thus, the evidence presented failed to establish this essential element of a novation agreement. See Taines v. Capital City First Nat. Bank, 344 So.2d 273 (Fla. 1st DCA 1977).

For the reasons stated, the final judgment entered in favor of defendants Herbert and David Siegel is reversed and the cause is remanded to the trial court to enter judgment for the Bank against these two defendants.

Reversed and remanded.

      . Lakeland Silex Brick Co. v. Jackson & Church Co., 124 Fla. 347, 168 So. 411 (1936).


text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Rebecca Carr HORTON, Appellee.
    No. 78-2.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 1979.
    Rehearing Denied Feb. 19, 1979.

      Adams & Ward and Amy Shield Levine, Miami, for appellant.
    Schwartz, Klein & Steinhardt and Norman S. Klein, North Miami Beach, for ap-pellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

In this appeal, appellant/plaintiff Travelers Insurance Company appeals from a final judgment rendered in favor of its insured, appellee/defendant Rebecca Carr Horton, in an action for declaratory relief in which Travelers unsuccessfully sought to prohibit Horton from proceeding with arbitration on her uninsured motorist claim by attempting to enforce a settlement agreement allegedly entered into between the parties.

The trial judge, in his final judgment, determined that Horton had the right to proceed with arbitration, in accordance with the terms of her insurance policy, as a settlement had not been effectuated. Further, the trial judge held that Horton was entitled to an award of reasonable attorney’s fees for her defense of the action.

After a careful review of the record, it is our opinion that final judgment was properly entered. While appellee did sign a release furnished by Travelers and was actually issued a draft, she neither presented the draft for payment nor returned the signed release to appellant. The validity and effect of a settlement and release are governed by contract law. Florida Education Association, Inc. v. Atkinson, 481 F.2d 662 (5th Cir. 1973). Appellee, having failed to communicate her acceptance of the settlement by mailing the release to Travelers, did not bind herself to the terms of the proposed agreement of settlement. See Kendel v. Pontious, 244 So.2d 543 (Fla. 3d DCA 1971). Further, an award of reasonable attorney’s fees in this declaratory action was not improper. James Furniture Manufacturing Company, Inc. v. Maryland Casualty Company, 114 So.2d 722 (Fla. 3d DCA 1959); Section 627.428, Florida Statutes (1977).

Accordingly, for the above reasons, the final judgment is affirmed.

Affirmed.


author: HENDRY, Judge.

text:
    Honorable Gerald KLEIN, as Judge of the County Court of Dade County, Florida, Appellant, v. Al SMITH, Hy Eval and Myron Wisotsky, Appellees.
    No. 78-1107.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied Feb. 23, 1979.
    Janet Reno, State Atty. and Arthur Joel Berger, Asst. State Atty., for appellant.
    Halpern & Shenberg and Barry L. Hal-pern, John Lipinski, Harry W. Prebish, Miami, for appellees.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   HENDRY, Judge.

Appellant seeks review of the circuit court appellate division’s order granting a writ of prohibition absolute commanding that the county court be restrained from proceeding further with regard to prosecution on six misdemeanor charges against appellees/relators. We hold that reversal is in order, as prohibition does not lie.

In determining whether the lower court correctly found that appellees were entitled to discharge for violation of their right to speedy trial under Florida Rule of Criminal Procedure 3.191, we have closely scrutinized the facts and circumstances attendant to the state’s “motion for order extending period of time established by Rule 3.191 for trial.”

The state filed its motion for extension on the basis that “exceptional circumstances exist which require a reasonable and necessary delay of the trial.” Copies of the motion and notice of hearing were mailed to appellees, and oral notification of the hearing was communicated by telephone. Hearing was had before the Honorable Judge Gerald J. Klein on April 24,1978 and the state’s motion was granted and written order entered, extending time for trial to and including thirty days from the date of the order. The following day, April 25, 1978, appellees filed motions for discharge under Rule 3.191, and orders denying same were entered on that date.

Thereafter appellees filed suggestions for writ of prohibition in the appellate division of the circuit court, contending inter alia, that the appellees were entitled to discharge because the state’s recited reasons for extension were not “exceptional circumstances” as defined by Rule 3.191(f). An order to show cause was issued in each case, return was filed; ultimately, the lower tribunal rendered a decision that its writ of prohibition should be made absolute on the basis that the state failed to demonstrate exceptional circumstances.

It must be emphasized that prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction; it is preventive and not corrective in that it commands the one to whom it is directed not to do the thing which the supervisory court is informed the lower tribunal is about to do, and its purpose is to prevent the doing of something not to compel the undoing of something already done, as it cannot be used to revoke an order already entered. State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla.1974); English v. McCrary, 348 So.2d 293 (Fla.1977); State ex rel. Sarasota County v. Boyer, 360 So.2d 388 (Fla.1978).

We have computed the time periods relevant to the instant case and must conclude that the motion for extension of time for trial was timely made, and the county court’s order granting the extension was made within the time prescribed by the rule. Thus the extension order was within the jurisdiction of the county court, and the circuit court should have discharged the writ as it could not revoke an order timely obtained and divest the county court of jurisdiction. See, State ex rel. Mullins v. Swigert, 345 So.2d 386 (Fla. 1st DCA 1977).

It is clear that speedy trial time had not expired when the state obtained the extension order, and jurisdiction remained with the trial court at the time that it entered the extension order. See, State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977). In the instant case, the record before the appellate division of the circuit court showed on its face that speedy trial time had not run when the appellees moved for discharge. Therefore, the circuit court erred in granting the writ of prohibition.

Reversed.

      . For the purposes of this appeal, we need not consider the merits of the parties’ arguments as to what circumstances constitute a sound basis for extension of speedy trial time under Rule 3.191(f).


author: SCHWARTZ, Judge.

text:
    Donald R. JALBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 78-647.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied Feb. 23, 1979.

      Thomas E. Kenworthy, South Miami, Paul E. Gifford, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

At a non-jury trial, the defendant was convicted of uttering a forged instrument in violation of § 831.02, Fla.Stat. (1977), and knowingly obtaining money by means of a forged motor vehicle certificate of title, which is forbidden by § 319.33(2), Fla.Stat. (1977). He appeals but we affirm.

This is an unusual criminal case, at least in that the facts are virtually undisputed. Jalbert was in the business of reconditioning and selling automobiles he purchased from salvage dealers. In 1974 he bought a thoroughly wrecked car at auction from an automobile storage company which had secured it from a subrogated insurance company. The storage company told him that the title certificate was lost and that it would sell the car with a notarized bill of sale, but without a formal title, to avoid the “red tape” involved in applying for a duplicate. After Jalbert had spent a substantial sum reconditioning the car and had learned that a bank lien on the vehicle had been satisfied, he attempted to find the record title owner, Audrey Casale. He was unable to do so, so he applied for a duplicate title in Ms. Casale’s name. Believing, he said, that he was the “real” owner of the car, he then sold it to a Mr. Edelsberg; at his direction, Jalbert’s wife had signed Audrey Casale’s name on the duplicate title certificate. When asked about the apparent discrepancy in the names on the certificate he “uttered” to Edelsberg, Jalbert told his buyer that Casale was his wife’s maiden name. Edelsberg could not secure record title to the vehicle, and this criminal prosecution resulted.

On this appeal, Jalbert raises two points which merit discussion. He contends first that he could not properly have been convicted of uttering a forgery (a) because a motor vehicle certificate of title is not an instrument covered by §§ 831.01 and 831.02, Fla.Stat. (1977) and (b) because the legislature’s specific treatment of such certificates in § 319.33, Fla.Stat. (1977) precludes reliance on the general and all-inclusive uttering statute. We disagree with both bases of this contention.

We hold that a motor vehicle certificate of title is a “public record,” see § 319.23(1), Fla.Stat. (1977); Ham v. Heintzelman’s Ford, Inc., 256 So.2d 264, 269 (Fla. 4th DCA 1971); State v. Brooks, 27 Ohio St.2d 144, 271 N.E.2d 869 (1971); and is therefore subject to both the forgery and uttering statutes, §§ 831.01-.02, Fla.Stat. (1977). See State v. La Pointe, 345 So.2d 362 (Fla. 3d DCA 1977). Moreover, since the specific certificate of title criminal provisions contained in § 319.33, Fla.Stat. (1977) are not at all inconsistent with the general uttering statute, there is no reason why, at the option of the prosecutor, either (although not both) may not be used in an attempt to punish the same criminal conduct. See Fayerweather v. State, 332 So.2d 21, 22 (Fla.1976).

Jalbert also argues that he was entitled to a judgment of acquittal as to both charges because he did not possess the “specific intent” to defraud required under both § 319.33(2) and § 831.02, Fla.Stat. (1977). See Stark v. State, 316 So.2d 586 (Fla. 4th DCA 1975), cert. denied, 328 So.2d 845 (Fla.1976); State v. Charles, 341 So.2d 539 (Fla. 2d DCA 1977). The basis of this claim is that he had a bona fide belief that he was the actual owner of the vehicle represented by the title certificate. Again, we disagree. The “specific intent” required by the statutes is simply one to receive money in return for a certificate uttered by the defendant and known by him to have been forged. Admittedly, that was demonstrated in this case. As in Folk v. State, 192 So.2d 44, 46 (Fla. 3d DCA 1966), Jalbert’s conduct, particularly his representation about his wife’s maiden name, was “in no way consistent with an honest ownership . . . ” of the forged certificate.

Since the other points raised by the defendant likewise lack merit, the judgment below is therefore

Affirmed.

      . Unlike State v. Young, 357 So.2d 416 (Fla. 2d DCA 1978), in which the “specific” statute provided for a lesser penalty than the general one, violations of both § 319.33 and § 831.02, Fla. Stat. (1977), are third degree felonies,


text:
    Amelia ESTEFANI and Luis Estefani, Individually, and as husband and wife, Appellants, v. TRAVELERS INDEMNITY COMPANY, a foreign corporation, Appellee.
    No. 77-1899.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 1979.
    Rehearing Denied Feb. 23, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, Stabinski, Funt, Levine & Vega, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See Government Employees Insurance Company v. Taylor, 342 So.2d 547 (Fla.1st DCA 1977); Sanchez v. Vigilant Insurance Company, 345 So.2d 396 (Fla.3d DCA 1977); Jenkins v. Allstate Insurance Company, 353 So.2d 214 (Fla.3d DCA 1977), and Cruger v. Allstate Insurance Company, 162 So.2d 690 (Fla.3d DCA 1964).


author: ERVIN, Judge. BOOTH, Judge,

text:
    Jack Allan ROBINSON, Appellant, v. Caroline ROBINSON, Appellee.
    No. JJ-308.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1979.
    Rehearing Denied Feb. 21, 1979.

      J. Riley Davis, of Taylor, Brion, Buker & Greene, Tallahassee, for appellant.
    Stanley Bruce Powell of Douglass, Powell, Powell & Davey, Tallahassee, for appel-lee.
   ERVIN, Judge.

Once again we are confronted with a dispute between the parties to a marital dissolution proceeding over alimony. The final judgment awarded to the husband custody of the parties’ only minor child, then aged 16. The wife was awarded (1) the husband’s interest in the marital home as lump sum alimony together with all personal property and fixtures located within except a curio cabinet and V2 of an oriental rug collection, (2) rehabilitative alimony over a 20 year period, beginning with the sum of $1,400 per month for 12 months through December, 1978, and concluding with $100 per month for 12 months through December, 1996, and (3) reasonable attorney’s fees and court costs. The parties were each jointly awarded as tenants in common a V2 interest in an 800 acre farm known as the Quail Hollow Realty, valued by both parties at $664,718.

The husband argues first that the trial court abused its discretion in awarding the wife rehabilitative alimony for a period of 20 years. While the husband agrees that it was proper for the court to award rehabilitative alimony, he argues that under the circumstances the total amount, $180,000, over a period of 20 years, was excessive. The record shows that at the time of dissolution the wife was 43 years of age, in good health, and possessed an inactive real estate license as well as a non-active cosmetologist license. Moreover, she felt she was capable of earning a living, although she had no desire to be self-supporting.

Rehabilitative alimony, like any other award of alimony, is based upon one spouse’s needs and the other’s ability to provide for those needs. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). The award “contemplates sums necessary to assist a divorced person in regaining a useful and constructive role in society through vocational or therapeutic training or retraining, and for the further purpose of preventing financial hardship on society or the individual during the rehabilitative process.” Mertz v. Mertz, 287 So.2d 691, 692 (Fla. 2d DCA 1973). To rehabilitate means to restore to a former capacity or to a former state. Webster’s New Collegiate Dictionary (1976). The award should be limited in an amount and duration to what is necessary to maintain a person through training or education, or until he or she obtains employment or otherwise becomes self-supporting. Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974), cert. den. 312 So.2d 737. Rehabilitative alimony is not a substitute for either unemployment compensation or retirement benefits. The award is clearly an incentive to assist one in reclaiming employment skills outside the home which have atrophied during the marital relationship. It was not meant to remove the recipient from the job market. In Manning v. Manning, 353 So.2d 103 (Fla. 1st DCA 1977), we stated that when a wife has completed her maternal role, and provided she is in good health, she should make every effort to rehabilitate herself within a reasonable time thereafter, and when she has done so, rehabilitative alimony is to be discontinued. Again, in Smithwick v. Smithwick, 353 So.2d 572, 574 (Fla. 1st DCA 1978), we permitted the continuation of rehabilitative alimony to a wife, aged 38, in good health, during the minority of the youngest child and — for “such reasonable time thereafter as may be necessary for [her] to rehabilitate herself for employment . . . .” (e. s.)

We agree that the court properly exercised its discretion in awarding rehabilitative alimony. We disagree, however, with the duration of the award. We conclude that a 20-year period of time for the wife to receive rehabilitative alimony is excessive. We feel that the award of rehabilitative alimony should be amended by the lower court’s determining such reasonable time as may be necessary for the wife to rehabilitate herself for future employment, and, at the conclusion of such period, the award cease.

We reject the husband’s argument that he is entitled to the wife’s interest in Quail Hollow by reason of a special equity. We conclude that the evidence supports the finding, implicit in the court’s final judgment of dissolution, that the husband established no special equity in the property. While Ball v. Ball, 335 So.2d 5 (Fla.1976) held that the presumption of gift was not created merely because one spouse conveys property to himself and the other spouse as tenants by the entireties, it noted that the other spouse can negate the attempted showing of a special equity by proving that a gift was intended. We think the record supports the conclusion that the gift was in fact intended. The award to both as tenants in common to Quail Hollow is affirmed.

We reverse, however, the award of the husband’s interest in the marital home to the wife as lump sum alimony. While the trial court has authority to order a husband to convey to his wife his undivided interest in the property they own as tenants in common as lump sum alimony, Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976), lump sum alimony should be awarded only in those instances where some special equity is required. Yandell v. Yandell, 39 So.2d 554 (Fla.1949). Moreover it is allowed only in such circumstances where it serves a reasonable purpose, such as rehabilitation, or when the award would be advantageous to both parties. Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971); Jones v. Jones, supra; Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976); Canakaris v. Canakaris, 356 So.2d 858 (Fla. 1st DCA 1978). An additional limitation on the award is that when husband and wife are in approximately equal financial situations at the time of the marital dissolution, and there is no showing of necessity on the wife’s part, even though the husband possesses the financial ability to supply the necessity — if it existed — it is error to award the spouse requesting it lump sum alimony. Cummings v. Cummings, 330 So.2d 134, 136 (Fla.1976). The Cummings' rule was recently reaffirmed by the Supreme Court in Meredith v. Meredith, 366 So.2d 425 (Fla.1978). Additionally, a lump sum allowance is not equitable and just unless the husband is in the position to make payment of the sum so granted over and above the requirements attendant upon the maintenance of his business or employment, or the preservation of his professional activities. White v. White, 314 So.2d 187 (Fla. 4th DCA 1975).

As in Canakaris v. Canakaris, supra, the record here reveals no special equity of the wife in the marital home. It appears, as in Cummings v. Cummings, supra, that since the parties are on the same relative footing insofar as the assets realized by each following the dissolution, no need was established by the wife for the special award. Indeed, the wife’s award to a V2 undivided interest in Quail Hollow is worth no less than $175,000. In addition, she is awarded rehabilitative alimony, as amended by this opinion, together with most of the furniture and fixtures contained within the marital home. We fail to find the existence of any need by the wife in such award and it is reversed.

The award of attorney’s fees to the wife’s attorney is also reversed. The record reveals the ability of the wife to pay for her attorney’s services. The financial resources of both parties must be considered and, when the requesting party has been shown to have the ability to pay for the services of her attorney, it is improper to require payment by the other party even though such party may have the ability. Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977).

Appellee’s motion for attorney’s fees incident to this appeal is denied.

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

MILLS, Acting C. J., concurs.

BOOTH, J., dissenting in part and concurring in part.

BOOTH, Judge,

dissenting in part and concurring in part.

I would affirm the judgment below in its entirety. The trial court would have been justified under the facts and circumstances here in awarding permanent alimony to the wife, but in an abundance of caution ordered rehabilitative alimony, scaled down from year-to-year in anticipation of the wife’s possible rehabilitation. Rehabilitation into today’s job market for a 43-year old woman with little work experience outside the home is extremely difficult. Bender v. Bender, 363 So.2d 844 (Fla. 1st DCA 1978); Lash v. Lash, 307 So.2d 241 (Fla. 2nd DCA 1975). Here the learned trial court considered the wife’s needs, earning capacity and the husband’s ability to pay and entered an order which is realistic and fair to all parties.

As to the award of the husband’s interest in the marital home as lump sum alimony, I do not agree that lump sum alimony “should be awarded only in those instances where some special equity is required,” as stated by the majority, or with the citation of Yandell v. Yandell, 39 So.2d 554 (Fla.1949), in support of the holding here. The Yandell case involved the award of $22,800 cash as lump sum alimony, an award which was set aside by the Supreme Court because the record did not establish that the husband was financially able to pay the lump sum award and failed to show any special equities or “other situations which might justify or possibly require [the] award.”

This Court in Baker v. Baker, 315 So.2d 217 (Fla. 1st DCA 1975) held that a spouse may be awarded all or part of an estate by the entireties to the extent that such spouse establishes (1) a special equity, or (2) lump sum alimony, or (3) the right to partition under Florida Statute § 64.041. The term “special equities” justifying an award of lump sum alimony, is not the same as “a special equity” meaning a financial or other contribution by a spouse to the acquisition of particular property. Cann v. Cann, 334 So.2d 325, 328 (Fla. 1st DCA 1976). Special equities justifying a lump sum award of alimony are circumstances such as possibility of rehabilitation, relative financial position of the parties, duration of the marriage, factors properly considered and justifying the lump sum awarded by the trial court in this case.

As to the award of attorney’s fees, the trial court is in the best position to determine the relative need and financial abilities of the party, and the award of the fee, the amount of which has not yet been set, should be affirmed.

I respectfully dissent.


author: McCORD, Chief Judge.

text:
    FOTOMAT CORPORATION OF FLORIDA, a Florida Corporation, Appellant, v. R. B. FILMS, INC., and Southland Films, Inc., Partners, trading and doing business under the partnership name of R. B. Southland Films, and Arlington Plaza, Inc., a Florida Corporation, Appellees.
    No. KK-37.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1979.

      Stephen H. Durant and Nicholas E. Monsour, of Martin, Ade, Birchfield & Johnson, Jacksonville, for appellant.
    Gregory W. Johnson, and Adam G. Adams, II of Adams & Adams, Jacksonville, for appellees.
   McCORD, Chief Judge.

This interlocutory appeal is from a judgment permanently enjoining appellee Arlington Plaza, Inc., and appellant Fotomat Corporation of Florida from leasing or continuing to lease or operate the Fotomat store in Arlington Plaza Shopping Center in Jacksonville and canceling the lease. We reverse.

Appellee/defendant Arlington Plaza, Inc., (hereinafter referred to as Arlington Plaza) owns and operates the aforesaid shopping center (hereinafter referred to as the Shopping Center). In October, 1970, Arlington Plaza leased to Shutterbug, Inc., (appellee’s predecessor in interest) a portion of the parking lot in the Shopping Center for use as a drive-up film processing store. The lease, which was unrecorded, contained the following language:

“Lessor agrees not to lease property continguous to the demised premises or otherwise engage in a drive-thru method for selling photographic film, supplies, processing or equipment similar to that of the lessee.”

In 1971, Shutterbug assigned its interest in the lease to appellees/plaintiffs (R. B. Filmes, Inc., and Southland Films, Inc., partners trading and doing business under the partnership name of R. B. Southland Films, hereinafter referred to as South-land).

In August, 1976, Arlington Plaza leased to appellant/defendant Fotomat Corporation of Florida (hereinafter referred to as Fotomat) another potion of the same parking lot some 500 feet away from South-land’s store for use as a drive-up film processing store. The lease entered into between Arlington Plaza and Fotomat did not contain any restrictive covenant but did contain the following language:

“Lessor represents that he is the legal owner ... of the leased premises . and that he has authority to lease the subject premises to the extent of the terms set forth in this lease. Lessor realizes and understands that these representations have been relied upon by Fotomat Corporation as Lessee in executing this Lease.”

By Count I of its amended complaint against Arlington Plaza and Fotomat, Southland seeks an injunction to enjoin both defendants from leasing or continuing to lease or operate the Fotomat store. Count II seeks damages against Arlington Plaza and Count III seeks damages against Fotomat. Count I of Arlington Plaza’s amended cross-claim against Fotomat seéks cancellation or rescission of the Fotomat lease and other relief but does not seek an injunction. Count II thereof seeks damages against Fotomat. Count I of Fotomat’s cross-claim against Arlington Plaza seeks a mandatory injunction to compel Arlington Plaza to specifically perform its obligations under its lease with Fotomat and to enjoin Arlington Plaza from trespassing or otherwise interfering with Fotomat’s quiet enjoyment of its leased property. Counts II, III, IV and V thereof seek damages against Arlington Plaza. Prior to trial, the trial court entered an order of severance by which it severed the issues made by Count I of Southland’s amended complaint and the answers thereto and the issues created by Count I of Fotomat’s cross-claim and the answer thereto and provided that those issues which involved only the respective claims for injunctive relief be tried first before the court without a jury. The order of severance left the remaining issues between the parties to be tried before a jury at a later date to be set by the court. At the conclusion of the trial before the court on the injunctive issues, the court entered judgment enjoining Arlington Plaza and Fotomat from leasing or continuing to lease and from operating the Fotomat store in the Shopping Center and making the following findings:

“1. Arlington is, and has at all times pertinent to this action been, the owner of certain real property in Duval County, Florida, known as the Arlington Plaza Shopping Center.
2. On or about October 10,1970, Arlington and Shutterbug, Inc., entered into a lease agreement dated October 10, 1970, leasing to Shutterbug a portion of the Arlington Plaza Shopping Center. Shutterbug assigned its interest under the lease to Southland on or about March 15, 1971.
3. At all times material to the matters in controversy, Southland has occupied its leased premises under said lease for the purpose of operating a drive-up-drive-through film processing outlet.
4. On or about August 31, 1976, Arlington and Fotomat Corporation, a Delaware corporation, entered into a lease agreement dated August 81, 1976, leasing to Fotomat a portion of the Arlington Plaza Shopping Center. Fotomat commenced business with the public in the Arlington Plaza Shopping Center pursuant to said .lease on December 29, 1976. With the exception of the period of time during which Fotomat was temporarily enjoined by the Order of this Court dated December 23, 1976, Fotomat has engaged continuously in the business of operating a drive-up-drive-through film processing outlet in the Arlington Plaza Shopping Center similar to the business conducted in said shopping center by Southland. 5. Article X(B) of the Southland lease provides that Arlington, as lessor shall not ‘lease . . . property contiguous to the demised premises or otherwise engage in a drive-through method for selling photographic film, supplies, processing or equipment similar to that of the lessee (Southland).’ The foregoing provision is reasonable under the facts and circumstances and does not constitute an unlawful restraint of trade.
6. The premises leased by Arlington to Fotomat under the lease dated August 31, 1976, are ‘contiguous’ to the premises leased by Arlington to Southland and the business conducted by Fotomat on said leased premises is ‘similar’ to that business conducted by Southland on its leased premises. As such, the Fotomat lease dated August 31,1976, violates the provisions of the Southland lease referred to in Paragraph 5., supra.
7. At the time of negotiating and executing the Fotomat lease, both Fotomat and Arlington were of the single opinion, that the Southland lease did not contain an exclusive covenant. Fotomat knew that Southland occupied a portion of the Arlington Plaza Shopping Center under a written lease. Although a copy of the lease was readily available at the offices of Arlington, Arlington did not refer to the same for the purpose of determining whether or not Southland’s lease contained an exclusive or for any other purpose. The failure of Arlington to refer to the Southland lease was in part induced by representations of Fotomat employees that leases in the ‘photo kiosk-type industry’ are virtually word for word the same, that Fotomat was the ‘leader’ in the industry and that it did not employ an exclusive covenant in its leases, that Fotomat and Southland competed with each other all over the country and that neither employed an exclusive covenant. In this regard Fotomat furnished to Arlington a copy of its lease which did not contain an exclusive covenant. At the time of such conversation Fotomat in fact had no knowledge, one way or the other, as to whether Southland employed a restrictive covenant in its leases. Arlington relied upon such representation and would not have entered into the Fotomat lease but for its belief that the Southland lease did not contain an exclusive.
8. The Fotomat ‘kiosk’ building was delivered by Fotomat to the Arlington Plaza Shopping Center on either December 19 or December 20, 1976. The building was placed on its side in the shopping center. On December 21,1976, Southland telephoned Arlington and advised Arlington that the Southland lease contained an ‘exclusive’ or ‘restrictive covenant’ which prohibited the contemplated lease between Arlington and Fotomat. At the time of this conversation, Fotomat’s prototype building had been unloaded but had not been installed and no permanent work had been commenced for such installation.
9. Immediately following the telephone call from Southland, Arlington reviewed its lease file with Southland and determined that the lease in fact contained an exclusive covenant which purported to prohibit Arlington from entering into the lease with Fotomat. Arlington thereupon telephoned Fotomat and advised Fotomat that the Southland lease contained an exclusive covenant which purported to prohibit the Arlington/Fotomat lease. At the request of Fotomat, Arlington wrote to Fotomat on December 21, 1976, and enclosed a copy of the Southland lease dated October 10,1970, calling Fotomat’s attention to the exclusive covenant contained in Article X(B) of said lease. In said letter, Arlington again wrote to Fotomat requesting that it suspend any further construction of the Fotomat building in order to keep damages at a minimum. Notwithstanding the request of Arlington, Fotomat continued construction of its building and commenced business with the public in the shopping center on December 29, 1976.
10. By reason of the facts and circumstances above referred to, Fotomat is es-topped to deny prior knowledge of the Southland lease.
11. The provisions of the Southland lease are valid and enforceable; South-land has sustained and will continue to sustain irreparable harm and injury as a result of the Arlington/Fotomat lease; and Southland has no adequate remedy at law.”

Factual findings 1 through 9 quoted above are fully supported by the evidence. As to findings 10 and 11, we agree that the provisions of the Southland lease are valid and enforceable and that Southland has sustained and will continue to sustain injury as a result of the Arlington/Fotomat lease, but we do not agree that the doctrine of equitable estoppel is applicable between Fotomat and Southland. Fotomat’s representations to Arlington Plaza do not form a basis for invoking estoppel in favor of Southland.

As stated by the Supreme Court of the United States in Ketchum v. Duncan, 96 U.S. 659, 24 L.Ed. 868 (1877):

“An estoppel in pais does not operate in favor of everybody. It operates only in favor of a person who has been misled to his injury, and he only can set it up.”

Likewise, the Supreme Court of Florida in Miami Gardens v. Conway, 102 So.2d 622 (Fla.1958), said:

“One of the essential elements of equitable estoppel is that the person who claims the benefit of the doctrine has been influenced or has relied upon the conduct, act or omission to act of the opposing party.”

In discussing equitable estoppel, the Supreme Court in Robertson v. Robertson, 61 So.2d 499 (Fla.1952), quoted from 19 Am. Jur., Estoppel, § 34, as follows:

“Equitable estoppel or estoppel in pais is the principle by which a party who knows or should know the truth is absolutely precluded, both at law and in equity, from denying, or asserting the contrary of, any material fact which, by his words or conduct, affirmative or negative, intentionally or through culpable negligence, he has induced another who was excusably ignorant of the true facts and who had a right to rely upon such words or conduct, to believe and act upon, thereby, as a consequence reasonably to be anticipated, changing his position in such a way that he would suffer injury if such denial or contrary assertion were allowed.”

It is only a party who has relied on statements made to him who can claim that the speaker is estopped by them. Fotomat made no statements to Southland and Southland in no way relied on the statements of Fotomat to Arlington Plaza. We, therefore, find that the trial court erred in its application of an estoppel and in entering the injunction against Fotomat in favor of Southland.

Appellees’ interpretation of the judgment to the effect that the trial court held on grounds of equity that Fotomat had either constructive knowledge or implied actual knowledge or notice of the restrictive clause in the Southland-Arlington lease and, therefore, could not deny knowledge of it is not a valid consideration in the injunction suit brought by Southland against Fotomat and Arlington Plaza. It will be a proper consideration upon the issues yet to be tried between Arlington Plaza and Fotomat, however.

We next consider appellant Fotomat’s contention that the trial court erred in cancelling its lease with Arlington Plaza. As we noted above, the trial court, by its severance order, severed the injunctive claims set forth in Count I of Southland’s amended complaint and Count I of Fotomat’s cross-claim from the rest of the pleadings in the case. Arlington Plaza’s amended cross-claim against Fotomat, which constituted a claim for cancellation of the Fotomat lease, was thus preserved for later trial. Appellees argue that the practical effect of the injunction was to cancel the lease. Ruling as we do that the trial court erred in entering the injunction, it follows that the cancellation of the lease at this stage of the proceedings was error.

Reversed and remanded for further proceedings consistent herewith.

BOYER and MILLS, JJ., concur.


author: KEHOE, Judge.

text:
    FIDELITY NATIONAL BANK OF SOUTH MIAMI, Appellant, v. Peter MELO and Angelica Melo, Appellees.
    No. 78-767.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Rehearing Denied Feb. 23, 1979.

      Valdes-Fauli & Valdes-Fauli and Clem-ente L. Vazquez-Bello, Miami, for appellant.
    Keith, Mack, Lewis & Allison, Miami, for appellees.
    Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, plaintiff in the non-jury trial below, brings this appeal from a final judgment entered in favor of appellees, defendants below, in suit on a loan guaranty. We reverse.

The facts relevant to this appeal may be summarized as follows: In October of 1974, appellee Peter Melo became a one-third stockholder and corporate secretary of Mar-sal Fish Market, Inc. [hereinafter referred to as the Corporation], Appellee Angelica Melo was the wife of Peter. During November of 1974, the Corporation negotiated a $5000 loan from appellant, the Fidelity National Bank of South Miami [hereinafter referred to as the Bank], which was evidenced by a promissory note. During the negotiations for the loan, appellee Peter Melo represented himself as an officer of the Corporation. As a prerequisite for the loan, appellees executed an unlimited and continuing written guaranty, dated November 18,1974, on behalf of the Corporation in favor of the Bank. By the terms of this agreement, appellees assumed both liability for all the existing indebtedness and all future extensions of credit or loans of the Bank to the Corporation. The Corporation satisfied in full the November, 1974 promissory note; however, on May 23, 1975, the Corporation negotiated a new loan from the Bank, also in the amount of $5000, as evidenced by a promissory note. Thereafter, on August 1, 1975, appellee Peter Melo entered into an agreement with the other stockholders of the Corporation whereby he resigned from and surrendered all his interest in the Corporation. Appellee Peter Melo gave no notice to the Bank of his separation from the Corporation. The Bank learned of his separation after it had filed this lawsuit. Further, appellee Peter Melo never attempted to terminate the written guaranty in favor of the Bank. Subsequently, the promissory note of May 23, 1975, was renewed in full by the Bank and evidenced by a renewal note dated August 21, 1975. In turn, the note of August 21, 1975, which bore interest at the rate of 11% per annum, was renewed in full through a promissory note dated October 20, 1975, which had an interest rate of 13% per annum. This latter promissory note, on which no principal or interest payments have ever been made, is the debt sought to be recovered by the Bank from the appel-lees through the guaranty agreement. The parties stipulated that subsequent to the payment of the November, 1974 note, there was no notice or communication between them. Further, it was stipulated that the Corporation, on May 25, 1975, without notice or consent from appellees, borrowed the $5000, evidenced by the note of the same date which was subsequently renewed twice. From the trial court’s entry of a final judgment in favor of appellees, appellant appeals.

Appellant raises the following two points on appeal: first, that a creditor, who is the holder of an absolute, unlimited, and continuing written guaranty securing the payment of loans and extensions of credit to a principal-debtor, is not obligated to give notice to the guarantor thereon of new loans and extensions of credit made to the principal-debtor, particularly where the guaranty by its terms contains language waiving such notice; and second, that a creditor, who is the holder of such a contract of guaranty, is not required to give notice to the guarantor thereon of any increases or variations in the rate of interest charged the principal-debtor, particularly where the guaranty by its terms contains language waiving such notice.

The pertinent portions of the written guaranty in this case are as follows:

“For value received and to enable MARSAL FISH MARKET, INC., a corporation of Miami, Florida, hereby designated as the ‘Debtor,’ to obtain credit from time to time from the Fidelity National Bank of South Miami, Miami, Florida, the undersigned request(s) said Bank to extend from time to time to said debt- or or to said debtor and others, such credit as said Bank may deem proper and in consideration of any other credit given, the undersigned hereby guarantee(s) the full and prompt payment to said Bank at maturity and at all times thereafter of any and all indebtedness, liabilities and obligations of every nature and kind of said debtor to said Bank and every balance and part thereof, and all renewals, extension and modifications thereof, whether now owing or due which may hereafter from time to time be owing or due and howsoever heretofore or hereafter created or arising or evidenced or acquired, to any aggregate amount not exceeding: Unlimited Dollars. . .
“The liability hereunder shall in no way be affected or impaired by (and said Bank is hereby expressly authorized to make from time to time, without notice to anyone) any sale, pledge, surrender, compromise, release, extension, indulgence, alteration, exchange, change in or modification of. any of said indebtedness, liabilities and obligations, either expressed or implied, or any contract or contracts evidencing any thereof, or any security or collateral therefore .
“The granting of credit from time to time by the Bank to the said Debtor in excess of the amount of this Guaranty and without notice to the undersigned is hereby also authorized and shall in no way affect or impair this Guaranty .
“Guarantors hereby agree that their obligations hereunder shall be absolute and primary and shall be complete and binding upon each guarantor upon this Guaranty being executed by him and subject to no oral statements or conditions, precedent or otherwise .
“This Guaranty shall be a continuing, absolute and unconditional Guaranty and shall remain in full force and effect until written notice of its discontinuance shall actually be received by said Bank, and also until any and all of said indebtedness, liabilities and obligations created before receiving such notice of discontinuance shall be fully paid.
“The undersigned guarantors agree that it is contemplated that from time to time, the Bank may extend future increases of credit to the Debtor or new loans to the Debtor after the original obligation guaranteed hereunder has been paid and Guarantors agree that this Guaranty shall remain in full force as to such future increases or new obligations until and unless a termination of this Guaranty is furnished in writing to the Bank.”

In entering the final judgment in favor of appellees, implicit within that judgment was the finding that the trial court did not interpret the guaranty agreement as a continuing guarantee, but instead considered the guaranty agreement as pertaining to the original transaction and defined it as requiring notice to appellees for any other transactions. We must respectfully disagree with these conclusions based upon the record in this cause.

The law of Florida has recognized that a contract of guaranty may be continuing in nature. It is said to be continuing in nature if it contemplates a future course of dealing during an indefinite period, or if it is intended to cover a series of transactions or succession of credits, or if its purpose is to give to the principal-debtor a standing credit to be used by it from time to time. Thus, a continuing guaranty covers all transactions, including those arising in the future, which are within the description of contemplation of the agreement. Fewox v. Tallahassee Bank and Trust Co., 249 So.2d 55 (Fla. 1st DCA 1971). In our opinion, the written contract of guaranty signed by ap-pellees in favor of appellant in this case constituted a continuing guaranty because by its terms it clearly contemplated a future course of dealing during an indefinite period, and was intended to cover a series or succession of credits and loans to the Corporation for the purpose of giving it, the principal-debtor beneficiary of the guaranty, a standing credit with appellant to be used from time to time.

The general rule is that a guarantee, such as we have here, when dealing with a continuing contract of guaranty, does not have a legal duty to give notice to the guarantors thereon of each transaction between the principal-debtor and the guarantee, provided that the particular transactions fall within the description of the course of dealings contemplated by the terms and conditions of the continuing guaranty. Ferst v. Blackwell, 39 Fla. 621, 22 So. 892 (1897); Bryant v. Food Machinery and Chemical Corporation, Niagra Chemical Division, 130 So.2d 132 (Fla. 3d DCA 1961). We note that in the instant case, even if notice were required, the guaranty agreement by its terms waived the requirement.

We believe that the guaranty agreement herein comports with the definition of a “continuing guaranty” set forth above and that no notice was required to be given to appellees of the eventual transactions pursuant to the agreement which led to this action. Further, we believe that the lack of a notice requirement also extended, under the facts herein, to the increase in the interest rates. We also note that, Section 687.11(1), Florida Statutes, imposes a 10% ceiling on the extent of appellees’ liability for interest on the transactions herein.

Accordingly, based upon the authorities set forth herein, other applicable principles of law, and for the reasons given above, we hold that appellant’s contentions on appeal are meritorious and require reversal of the final judgment appealed. Therefore, we reverse and remand the cause for any further proceedings.

Reversed and remanded.


text:
    Nina DIAMOND, Adele Diamond and William Diamond, Appellants, v. E. R. SQUIBB AND SONS, INC., Appellee.
    No. 78-980.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Rehearing Denied Feb. 19, 1979.

      Weinstein & Krasnow, Miami Beach, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

Plaintiffs Nina Diamond and her parents, Adele and William Diamond, appeal a summary final judgment for the defendant drug manufacturer based upon the determination that their action for product liability is barred by the applicable statute of limitations.

Defendant, E. R. Squibb and Sons, Inc., manufactured a drug for pregnant women called “Stilbetin”, more commonly referred to as DES (diethylstilbestrol). During the period of her pregnancy with Nina from July 1955-April 1956, Adele was prescribed and ingested Stilbetin. Subsequently in May 1976 the Diamonds learned that Stilbe-tin was a cancer producing agent and females whose mothers had ingested the drug were developing cancerous or precancerous vaginal contamination as a result. Thereupon, the Diamonds in April 1977 filed the instant complaint for damages against Squibb on the grounds of negligence and strict liability. They alleged that (1) Squibb knew or should have known that Stilbetin was a defective and a cancer producing agent prior to the administration of the drug to Adele Diamond and (2) Nina has developed or will develop cancerous lesions. Squibb moved for summary judgment on the ground that this action was commenced well in excess of 12 years after the last date of delivery of the drug (i. e. April 1956) and, therefore, was barred .by the applicable statute of limitations, Section 95.031(2), Florida Statutes (1977). After a hearing, summary judgment was entered for Squibb and the Diamonds appeal.

Section 95.031(2), Florida Statutes (1977) clearly requires that product liability actions as in the instant case be brought within 12 years after the date of delivery of the completed product to the original purchaser regardless of when the defect in the product should have been discovered. The present action being filed well after this 12-year period, the trial court correctly entered summary judgment for Squibb. See Bauld v. J. A. Jones Const. Co., 357 So.2d 401 (Fla.1978).

Affirmed.

      . by proper testing.

      . “§ 95.031
      LIMITATIONS
      * * * * * *
      “(2) Actions for products liability and fraud under subsection (3) of § 95.11 must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in subsection (3) of § 95.11, but in any event within twelve (12) years after the date of delivery of the completed product to its original purchaser or the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered.” [Emphasis Supplied]


text:
    Clyde Irvin BLACK, Appellant, v. The STATE of Florida, Appellee.
    No. 78-878.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1979.
    Bennett H. Brummer, Public Defender and Denis Dean, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

The appellant was charged in the trial court by information with kidnapping and robbery. He filed a “Motion to Compel [Identification] Line-Up” and, thereafter, filed a “Motion to Suppress Identification” seeking to suppress testimony pertaining to his identification, on the ground that a photographic line-up was unnecessarily suggestive. After hearing, the trial court denied each motion.

Thereupon, the defendant pled nolo con-tendere to the charges contained in the information and reserved the right to appeal the rulings of the trial court upon the above motions.

Our review of the record in light of the oral argument and briefs shows that the testimony of the police officer who presented the photographic line-up was sufficient basis for the court to find that the line-up was not unduly suggestive. See the reasoned opinion of Mr. Justice Blackmun in Manson v. Brathwaite, 432 U.S. 98, 114-117, 97 S.Ct. 2243, 2253-2254, 53 L.Ed.2d 140, 154-155 (1977).

Accordingly, the judgment and sentence are affirmed.


author: LETTS, Judge.

text:
    Deborah LACHS, Appellant, v. STATE of Florida, Appellee.
    No. 77-2362.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1979.

      Richard L. Jorandby, Public Defender, West Palm Beach, and Martin H. Colin, Lake Worth, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This appeal is from the trial court’s denial of a motion to suppress evidence obtained as a result of a stop and frisk. We affirm.

The facts reveal a radioed BOLO transmitted to two police officers on routine patrol at 8:00 o’clock Friday evening. The report directed the officers to proceed to the Big Savoy Bar because its manager had called to report “a black male subject, dressed in a blue denim outfit with a hat and a white female subject [the appellant] in his company . . . dealing in narcotics in the bar and ... at this time, standing outside the bar smoking a marijuana cigarette.” The officers were well acquainted with the bar in question, it being located in a high crime, drug infested area described as ■ “one hundred percent black.” They responded and on arrival at the bar, immediately espied, outside the front door, the female appellant and her black companion exactly as described in the radio dispatch. The officers could see neither drug dealing nor pot smoking on arrival, however the two conversing suspects immediately separated and walked hastily in opposite directions, as soon as they saw the police arrive. Thereupon, without resort to the bar manager, one of the officers stopped the quickly departing appellant and asked her for identification. When she opened her pocketbook to provide same, the officer then made a plain view seizure of a supposed “nickel bag” which he preliminarily determined to be marijuana after inspecting its contents. He thereupon placed the appellant under arrest.

We have repeatedly written on Florida’s “stop and frisk” law, Section 901.151, Florida Statutes (1977) and would normally see no reason for yet another opinion. However, the claim is made here that this stop was predicated upon an anonymous BOLO on which the police were not entitled to place reliance. This variation merits discussion and provides a springboard for a recapitulation of the existing stop and frisk law as we view it.

In a very recent case, we reiterated that “in order for a BOLO to justify a stop there must be some showing . . . that the information contained in the BOLO [is] reliable. If the police receive the BOLO information from some unknown tipster, it [does] not carry the credibility necessary to justify reliance thereon. . . . The state . . . must adduce proof to support the reliability of the information contained in the BOLO . . . .” Barry St. John v. State, 363 So.2d 862 (Fla. 4th DCA, Opinion filed November 1, 1978.)

We are of the opinion that the state adduced such proof in the case now before us. This was not an anonymous tip from a unknown tipster, it was a telephoned complaint from an identified citizen who gave his occupation and address, the latter well-known to the police. See State v. Harrington, 307 So.2d 466 (Fla. 2d DCA 1975). It is true, that the officers were not supplied with the actual given name of the complaining bar manager. Nonetheless he was fully identified by occupation and address and we are of the opinion that this was sufficient. In such situations complaints by fully identified law abiding citizens are entitled to as much credibility as those of paid informers or the victims themselves. State v. Harrington, supra. An actual eyewitness to a crime is as capable of reporting it, as is the victim. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus, for example, a BOLO declaring that one, John Q. Citizen, has just witnessed a stabbing at a particular address, accompanied by an accurate description of the assailant who is thereupon seen walking away from the scene by arriving police, is sufficient to justify a stop of that alleged assailant. To require the police to first carefully examine the reporting witness to determine whether the latter knows a stabbing when he sees one, would probably result in the escape of the assailant which consequence is directly opposite to the very purpose of the stop and frisk statute. Said statute authorizes a stop whenever circumstances “reasonably indicate that ... a person has committed, is committing or is about to commit a violation . . . .” As Justice Alderman said in State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978):

To justify temporary detention, only “founded suspicion” in the mind of the detaining officer is required. Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976); State v. Othen, 300 So.2d 732 (Fla. 2d DCA 1974); State v. Ebert, 251 So. 2d 38 (Fla. 2d DCA 1971). A “founded suspicion” is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge. “Mere” or “bare” suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification.
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Thomas v. State, 250 So.2d 15 (Fla. 1st DCA 1971). There will be borderline cases, of course, in which reasonable men might differ as to whether the circumstances witnessed by an officer gave an objective foundation to his suspicion. Certain factors might then be evaluated to determine whether they reasonably suggested the suspect’s possible commission, existing or imminent, of a crime: The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.

Assuming that reasonable men might differ in the case at bar, we apply the above quoted Stevens criteria and find the following:

1. As to time: A report of a crime in progress, at the very moment the BOLO, was received. No inordinate passage of time occurred between the BOLO and the stop. (This time factor can also be applied to the hour of the day, as it was in Stevens (late Sunday night). In the instant case, 8:00 P.M. on a Friday night, in a bar was of no significance.)

2. As to day of week: This is irrelevant in the case at bar, however, in Justice Alderman’s decision it was relevant, in that a city supply yard is highly unlikely to be conducting business late on a Sunday evening.

3. As to location: The exact address at which the crime was being committed was given to the police.

4. As to physical appearance of the suspects: A comprehensive description of her companion was given and appellant was still in his company at the precise location.

5. As to behavior: The unexplained hasty departure in opposite directions as soon as the police cruiser appeared.

6. As to appearance and operation of an involved motor vehicle: This is inapplicable here.

7. As to incongruity: There was testimony that the presence of a white female at this all black bar was unusual. We are not so foolish as to believe, or suggest, that the presence of one Caucasian in a so-called all black bar, constitutes a founded suspicion of a crime being committed. The era has thankfully gone when one could be “reasonably” presumed to have committed a crime because of skin color. Nonetheless, like it or not, it would ignore reality to suggest in the case before us, that the appellant’s presence would not come under Justice Alderman’s definition of something “incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge” and all the other surrounding facts.

8. As to reliability of the BOLO: The report was received from an identified eyewitness to the crime describing the infraction and giving a precise address.

No doubt, no one of the above, particularly the seventh, would in and of itself give rise to a founded suspicion. Nor do we suggest that the numbered list is exclusive or that the presence of all of these factors is required. Nevertheless, in the case now before us, we are of the opinion that there was much more than a “bare suspicion” as defined by Judge Moore in Delp v. State, 364 So.2d 542 (Fla. 4th DCA 1978). Rather we are convinced that in “the light of the officer’s knowledge” (Stevens, supra, 1247) and under the totality of the circumstances, there was a founded suspicion to justify a stop.

For comparison, we refer to another recent case in which this author and Judge Beranek came to a contrary result. See Hall v. State, 366 So.2d 865 (Fla. 4th DCA 1979). In this latter situation, the police BOLO reported that the owner of a clothing store called to complain of “suspicious behavior” by blacks at his store. Responding thereto, the officers observed two blacks leave the store and drive off, all in a perfectly normal manner and the officers hurriedly enquired of the owner about the nature of the suspicious behavior. The answer was not that the suspects had been seen shoplifting or engaging in any other action suggestive of such activity. Instead, the suspicions had been aroused merely because the same blacks had already visited the store twice before that day and had bought nothing. Based on this information the stop was made. We are of the opinion that there is a world of difference in the two cases. In Hall, supra, the incident occurred during normal business hours and there was no actual report of a crime. The report was no more than a “bare suspicion” on the part of the alleged victim never mind the police. Such being so, the officers should have investigated further before making a stop because we cannot suppose a “founded suspicion” predicated on two prior visits by blacks to a store open for business during which no purchases were made. This epitomizes the abhorrence to which we earlier referred, that is, a suggestion that merely because black people returned to the store and did not buy any clothes that this constituted a “founded suspicion” that a crime was being, or was about to be, committed. Clearly this is unacceptable. Also see Mullins v. State, 366 So.2d 1162 (Fla.1978) in which the Supreme Court struck down a stop because it was made solely on the basis of riding a bicycle slowly through a residential area in the very early morning hours. This Mullins case is also interesting in the light of Justice Alderman’s concurrence, on the question of plain view seizure based on a stop because the officer wishes to render assistance rather than investigate suspicious behavior.

Progressing to the next point on appeal we also hold that, subsequent to the initial stop, the officer had probable cause to make the arrest. Some of his testimony in this regard was as follows:

Q Now, your partner, which direction did he go?
A Towards the black male subject.
Q Which direction did you go?
A Towards the female.
Q So they went in opposite directions, one from the other?
A Yes.
Q When you went to the female what if anything, did you do?
A I requested her to produce some identification.
Q Did she produce some identification?
A Yes, sir, she did.
Q How did she do this?
A By opening her pocketbook.
Q What if anything, did she produce?
A As she was reaching into her pocketbook, I observed a manila colored envelope.
MR. JORDAN: Your Honor, that is not responsive to the question. The question is: What did she produce?
THE WITNESS: At that time, nothing.
Q What if anything, did you see?
A A small manila colored envelope approximately two by four inches, folded over and secured with a piece of tape.
Q How long have you been a police officer all together?
A Approximately five years.
Q Two years for the Fort Lauderdale P.D.?
A Yes.
Q Three years for whom?
A Middletown Police Department in Lev-ittown, Pennsylvania.
Q During the course of your five years as a police officer, have you had an opportunity to observe people that were dealing with narcotics or drugs, or the possession of same?
A Yes, sir.
Q On how many different occasions in the course of five years would you say you made an arrest for drugs?
A About three or four hundred.
Q Have you testified in Court concerning those arrests?
A Yes, sir, I have.
Q How often have you testified in Court concerning drugs?
A Two hundred.
Q Either in the way of a motion as we are here on today, or in the way of trials, is that correct?
A Yes, sir.
Q Have you ever worked in the area where you went to that particular evening?
A Yes, sir, I have.
Q Within the past, say, six months prior to May 13th of this year, how many arrests would you have made involving drugs right within this immediate neighborhood?
A Maybe seventy-five.
Q In your experience as a police officer, based upon the five years experience you have, would you describe this area as a high drug use area?
MR. JORDAN: Judge, I object to that categorization.
THE COURT: I think it is not a categorization. Overruled.
Q You can answer the question.
Based upon your experience in five years as a police officer, is this neighborhood considered a high drug use area?
A Very definitely.
Q Would you say that bar in that vicinity would be a high drug use area?
A Very definitely.
Q During the course of your five years as a police officer, did you have an opportunity to see what is commonly referred to or said on the street as nickel bags?
A Yes, sir.
MR. JORDAN: I object to the use of the words nickel bags. I think he is going outside the motion. In my motion, I never referred to that name.
THE COURT: Well, go ahead.
Q (By Mr. Harris) Describe for us what you know to be a nickel bag.
A Yes, sir. A manila colored envelope, approximately two by four inches. When it contains a substance marijuana, it is known as a nickel bag and is normally folded over on the top and secured with a piece of tape.

In response to the foregoing, the appellant cites us to cases holding that just because some suitable container is seen in plain view, that fact cannot give probable cause to suppose the presence of contraband in it. See Bailey v. State, 295 So.2d 133 (Fla. 4th DCA 1974) and Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). However we would distinguish these cases in that in Bailey, the court did not appear to base its rejection of the search on the theory of the “cosmetic bag” container. As to the Carr case there were no attendant circumstances other than two unevenly rolled and twisted cigarettes. In the case at bar, other attendant circumstances are abundant.

Like the trial judge, we take note of the vast experience of the police officer in the case now before us and his utter familiarity with “nickel bags.” True, not all small, folded, taped manila envelopes contain marijuana. Nevertheless under the totality of the circumstances, commencing with the BOLO and escalating therefrom, the officer had probable cause to believe the envelope contained cannabis and we agree with the reasoning of Skelton v. State, 349 So.2d 193 (Fla. 3d DCA 1977) wherein the court said:

In the instant case Officer Cantillo, the arresting officer, was highly experienced and often involved in drug related arrests. He was well acquainted with the neighborhood in which the arrest took place. He testified that on the date in question he observed a young man walk up to the defendant, who was standing on the corner of West Flagler Street and Seventh Avenue, and hand him (the defendant) a stack of small brown packets, each packet being 2" by 3" in size. The defendant placed the packets, secured by rubber bands, into his jacket pocket. Officer Cantillo exited from his patrol car, retrieved the packets from the defendant’s pocket and placed him under arrest. Cantillo further testified that cannabis is often distributed in packets similar to those he had taken from the defendant and he believed a drug sale was in progress.
Under the totality of the circumstances, Officer Cantillo had probable cause to believe that the packets contained cannabis (marijuana) and a narcotics sale was in progress. Thus, the trial judge was correct in denying the motion to suppress.

AFFIRMED.

DOWNEY, C. J., and BERANEK, J., concur.

      . The record reflects that the officer testified: “there isn’t too many black males in the area.

      . But out of the same court, see State v. Redding, 362 So.2d 170 (Fla.2d DCA 1978).


text:
    Terry Lee REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 78-1621.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and David A. Davis, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

An affidavit and warrant were filed charging appellant with having violated his probation in three respects: (1) changing his approved residence without his supervisor’s permission, (2) failing to submit the required monthly reports for June through October 1976, and (3) failing to pay court costs imposed as a condition of his probation. The only evidence offered was the testimony of appellant’s probation officer, who was assigned to appellant following the dates of the alleged violations and who had no first-hand knowledge of the facts. He relied on the allegations of the affidavit and the written report of appellant’s previous probation officer, further noting that he had a certified copy of a judgment and sentence received by appellant for a motor vehicle theft in Georgia.

All of the evidence introduced against appellant was hearsay. While hearsay is admissible in revocation proceedings, probation may not be revoked solely on the basis of hearsay. Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976); Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977).

Accordingly, the order revoking appellant’s probation and the judgment and sentence entered against him are reversed and the cause remanded with instructions to reinstate appellant’s probation.

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

      . While evidence of a criminal conviction subsequent to placement of a defendant on probation is a sufficient basis upon which to revoke probation, the evidence concerning appellant’s Georgia conviction was unavailing at the instant revocation hearing for two reasons: (1) It was not one of the violations charged in the affidavit or warrant, and (2) a certified copy of the judgment and sentence was not introduced into evidence at the hearing.

      . This reversal does not, of course, bar a second revocation hearing based on the filing of a new affidavit alleging the same violations, Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975); White v. State, 301 So.2d 464 (Fla. 1st DCA 1974); Hampton v. State, 276 So.2d 497 (Fla. 3d DCA 1973), or the initiation of new revocation proceedings based on appellant’s Georgia conviction.


author: BOARDMAN, Acting Chief Judge.

text:
    KAUFMAN AND BROAD HOME SYSTEMS, INC., a Nonprofit Florida Corporation, and Kingsley Modular Homes, Inc., a Florida Corporation, the New England Industries, Inc., a Connecticut Corporation, and Standard Industries, Inc., a New York Corporation, Appellants, v. SEBRING AIRPORT AUTHORITY, a Nonprofit Florida Corporation, Appellee.
    Nos. 78-91, 78-266.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    A. H. Lane, of Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lakeland, for appellant Kaufman and Broad Home Systems, Inc.
    Robin Gibson, of Gibson & Connor, Lake Wales, for appellee Sebring Airport Authority.
   BOARDMAN, Acting Chief Judge.

Appellee/plaintiff Sebring Airport Authority (Authority) brought an action against appellee/defendant Kaufman and Broad Home Systems, Inc. (KBHS), and others not active parties to this appeal, to collect arrearages in rent due Authority under a written lease agreement. In the lease upon which the suit was instituted KBHS agreed, among other things, to pay a reasonable attorney’s fee to the attorney for Authority if it was necessary to bring suit to enforce payment of the rent. The pertinent provision provides:

[I]n case of failure of the Lessee to pay rent herein reserved, when the same shall become due and the same is collected by suit, or through an attorney, the Lessee agrees to pay the Lessor’s reasonable attorney’s fee for services of its attorney in collecting said rentals, together with all costs and charges thereof.

Following a hearing on the issue of attorney’s fee- where testimony was taken from four experienced and outstanding local members of the Florida Bar as to a reasonable fee, the trial court awarded Authority the sum of $52,500 attorney’s fee. It was stipulated by both parties that the attorney for appellee expended a total of 155 hours on this case. Therefore, he was compensated at $340 per hour.

The only issue presented for our consideration is whether that fee is a reasonable one under the particular circumstances involved in this case. The underlying question in the case before us is whether a reasonable attorney’s fee for collection of rent agreed to by a client and its attorney under a contingent fee contract necessarily constitutes a reasonable attorney’s fee for collection of rent agreed to by a lessor and lessee under a lease agreement.

This court has recently held that it does not. Universal Underwriters Insurance Co. v. Gorgei Enterprises, Inc., 345 So.2d 412 (Fla.2d DCA 1977). While a contingent contract such as the one agreed to by appellee and its attorney may be reasonable and enforceable as to the client as a party to that contract, the reasonableness of the attorney’s fee as to a third party liable for those fees is determined by a fair measure of the value of the services actually performed by the attorney. Ronlee, Inc. v. P. M. Walker Co., 129 So.2d 175 (Fla.3d DCA 1961). The “fact that the attorney was working on a contingency basis may properly be weighed in determining the amount of a reasonable fee. However, this is only one of a number of criteria which should be considered.” Universal Underwriters Ins. Co. v. Cargie Enterprises, Inc., supra, at 414. See also Insurance Company of North America v. Welch, 266 So.2d 164 (Fla.4th DCA 1972). The other criteria are those set out in Canon 2, DR2-106(B) of the Code of Professional Responsibility promulgated by the Supreme Court of Florida. See, e. g., Dade County v. Oolite Rock Co., 348 So.2d 902 (Fla.3d DCA 1977).

We point out that counsel for Authority was able, industrious, resourceful, skillful, and certainly successful. A settlement of more than $415,000 was finally reached, and this result speaks for itself. Authority had entered into a contingency fee contract with its attorney providing for 25% of a full recovery, which for practical purposes was accomplished, or 33y8% of a significantly lesser recovery. The attorney had offered his services at a rate of $75 per hour in lieu of the contingent fee arrangement. Authority made the choice and opted for the contingent fee. We do not intend that this decision preclude Authority’s attorney from insisting upon his client fulfilling its obligation under the contingent fee contract.

Three witnesses testified as experts for Authority. Each of them testified that the contingent fee was reasonable in view of the work and services the attorney was expected to undertake. Indeed, as to the contingent fee contract between Authority and its attorney there is no dispute but that it was a reasonable fee arrangement. One of appellee’s witnesses testified that Authority could have obtained competent counsel for $100/hour; the other two witnesses testified that their usual fee and the customary fee in the area for such services was between $60 and $65 per hour. The expert witness called by KBHS testified that in his opinion a reasonable fee for this case was between $17,500 and $20,000, loosely figured on a rate of $100 per hour.

Taking into consideration that relevant criteria applicable to setting fees for legal services, we are compelled to evaluate an award of $340 per hour as being excessive. See R. H. Coody & Associates, Inc. v. Shelton, 352 So.2d 852 (Fla.1977).

We reverse the award of attorney’s fee and remand to the trial court for a redeter-mination of attorney’s fee based on the guidelines set out in this opinion.

REVERSED and REMANDED.

RYDER and DANAHY, JJ., concur.


author: OTT, Judge.

text:
    Robert James WHITESIDE, Appellant, v. STATE of Florida, Appellee.
    No. 77-735.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shem, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant brought his appeal to this court from his conviction for robbery with a firearm. This court affirmed by its Per Curiam Affirmed decision, Whiteside v. State, 366 So.2d 1232 (2d DCA 1977). Appellant then filed his Petition for Writ of Certiorari with the Supreme Court. The Supreme Court treated the appellant’s Petition for Writ of Certiorari as a Petition for Writ of Habeas Corpus and remanded the ease to this court to revisit our previous Per Curiam Affirmed decision in the light of Clark v. State, 363 So.2d 331 (1978). We affirm and adhere to our previous decision for the reasons hereafter stated.

Following his arrest the appellant was advised of his constitutional rights (commonly referred to as Miranda warnings) including his right to remain silent. Thereafter, the appellant made certain voluntary statements to the arresting officers either in answer to their questions or gratuitously. After the arresting officers testified as to these voluntary statements of the appellant the state attorney asked the following questions and the officers gave the following answers:

FIRST OFFICER:
Q. . did he make any statements about where it (the money found pursuant to appellant’s prior statement) was from or anything?
A. No, sir.
SECOND OFFICER:
Q. Did the defendant make any other statements in your presence?
A. No, sir.

Counsel for the appellant thereupon moved for a mistrial and asserted the above questions and answers constituted an impermissible comment on the appellant’s constitutional right to remain silent.

If the above questions and answers amount to “comment” then appellant has clearly preserved his right to assert error, on appeal, to the denial of his request for mistrial pursuant to the Supreme Court holding in Clark v. State, supra.

This court previously concluded and now holds that the above questions and answers do not constitute “comment” on the constitutional right to remain silent. The state attorney had every right to elicit all of the voluntary statements made by the appellant. The above questions are no more than the equivalent of asking what else the appellant may have said. We have not been cited to nor are we aware of any case holding this to be impermissible comment on the constitutional right to remain silent.

The Petition for Writ of Habeas Corpus is denied and our previous Per Curiam Affirmed decision is adhered to.

RYDER and DANAHY, JJ., concur.


text:
    Frederick G. WILSON, Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA et al., Appellees.
    No. 78-618.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.
    Patrick H. Dekle of Rood, Hapner, Boult & Dekle, Tampa, and Hal P. Dekle, Tallahassee, for appellant.
    Kingswood Sprott, Jr. of Sprott & Gro-seclose, Lakeland, for appellees.
   PER CURIAM.

Affirmed. See South Florida Vendorama, Inc. v. Colodny, 348 So.2d 1212 (Fla. 4th DCA 1977).

HOBSON, A. C. J., and RYDER and DANAHY, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Eugene M. and Sylvia HAMILTON, husband and wife, Petitioners, v. PALM CHEVROLET-OLDSMOBILE, INC., a Florida Corporation, and Berry Brannon, Respondents.
    No. 78-1744.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 1979.

      Bruce D. Frankel, of Goldberg, Rubinstein & Buckley, P. A., Fort Myers, for petitioners.
    Kenton H. Haymans and Lester E. Durst of Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for respondents.
   GRIMES, Chief Judge.

This is a petition for writ of certiorari to review an order requiring petitioners to post a $10,000 bond as a prerequisite to maintaining count two of their suit against the respondents. We grant the writ.

The action arose out of a dispute over the sale of an Oldsmobile Cutlass automobile. The sales contract indicated that'an 8-cylin-der automobile was to be the subject of the transaction. A 6-cylinder model was delivered. The buyers later demanded that an 8-cylinder Cutlass be substituted, but the seller refused. The buyers filed a four-count complaint against Palm Chevrolet and its salesman, Brannon, demanding specific performance, compensatory damages and punitive damages. Count two of the complaint was brought pursuant to the Florida Deceptive and Unfair Trade Practices Law, Section 501.201-501.213, Florida Statutes (1977).

The respondents filed a verified motion to strike the complaint as a sham in which they asserted that the provision in the contract for an 8-cylinder engine was a scrivener’s error and that it was obvious from stickers attached to the car windows and from the car itself that it was only a 6-cyl-inder model. The respondents also moved to dismiss count two and to require the petitioners to post a bond in order to pursue that count of their complaint.

Following a hearing which consisted only of arguments of counsel, the court denied the motions to strike and to dismiss but granted the motion to require a bond and set the amount of the bond at $10,000.

The motion to set bond was made pursuant to Section 501.211(3), Florida Statutes (1977), which provides:

In any action brought under this section, upon motion of the party against whom such action is filed alleging that the action is frivolous, without legal or factual merit, or brought for the purpose of harassment, the court may, after hearing evidence as to the necessity therefor, require the party instituting the action to post a bond in the amount which the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney’s fees. This subsection shall not apply to any action initiated by the enforcing authority. (Emphasis supplied.)

In view of the specific wording of the statute, we believe that the court was not permitted to require a bond without hearing evidence concerning the need for a bond.

The purpose of requiring a bond is to provide defendants an opportunity for redress for harassment rather than to discourage plaintiffs from seeking access to the courts. It is not every plaintiff who can be required to post a bond; only those plaintiffs whose suits appear to be without merit are subject to the requirement. Therefore, evidence must be directed toward the merits of the cause of action which is being prosecuted under the statute. Moreover, the amount of any bond which is required should not exceed the amount of damages the defendants might legally be able to recover from the plaintiffs should the plaintiffs lose.

The order requiring the posting of the bond is hereby quashed. Upon remand the court may conduct a new hearing following the dictates of this opinion.

HOBSON and RYDER, JJ., concur.