text:
    BANKERS MULTIPLE LINE INSURANCE COMPANY, Appellant, v. James C. BLANTON, as Administrator d. b. n. of the Estate of Donal Eugene Smith, Deceased, Meredith & Morse, Inc., a Florida Corporation, and Boyd McClure, Appellees. GARDEN CONSTRUCTION COMPANY and Bankers Multiple Line Insurance Company, Appellants, v. MEREDITH & MORSE, INC., and Boyd McClure, Appellees.
    Nos. 76-2510 and 76-2533.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.

      Joseph P. Metzger and John J. Hoy, Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellants.
    Gary L. Vonhof, Johnson, Ackerman & Bakst, West Palm Beach, for appellees.
   PER CURIAM.

These are consolidated appeals by a defendant and a third party defendant involving motions for attorney’s fees and costs.

The first question is whether the trial court was correct in ordering that the attorney’s fees of defendants Meredith and Morse, Inc., and Boyd McClure, be paid by codefendant Bankers Multiple Line Insurance Company. The jury verdict was for the plaintiff, who had been injured, and whose husband had been killed, when a section of pipe rolled from a truck owned by Meredith and Morse and driven by McClure, their employee. Defendant Bankers was alleged to be the automobile liability insurer of Meredith and Morse, an allegation which Bankers denied. Meredith and Morse crossclaimed against Bakers for indemnity, and their crossclaim was dismissed, so that at the conclusion of the action there was no judgment against Bankers in favor of Meredith and Morse.

There is, of course, no common law right to payment of one’s attorney’s fees by another party, so that attorney’s fees generally cannot be awarded by a court unless provided for by contract or statute. Rivera v. Deauville Hotel, Employers Service Corp., 277 So.2d 265 (Fla. 1973). There was no contract in the present case, and the only allegedly applicable statute is Section 627.428(1), Florida Statutes (1975), which provides that:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. (Emphasis supplied.)

There was no judgment or decree against Bankers in favor of Meredith and Morse, and so the trial court had no legal basis for its award of attorney’s fees. We must reverse on this point.

The second consolidated appeal is by a third party defendant, Garden Construction Company, brought into the lawsuit by a third party complaint of Meredith and Morse and Boyd McClure. The third party complaint was voluntarily dismissed before the end of the trial. Garden moved for attorney’s fees and costs. Fla.R.Civ.P. 1.420(d) is controlling:

Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.

Attorney’s fees are not taxable costs under Fla.R.Civ.P. 1.420(d) unless made a part of costs by contract or statute. See, for example, City of Hallandale v. Chatlos, 236 So.2d 761 (Fla.1970), and Granoff v. Cherin, 270 So.2d 430 (Fla.3d DCA 1972). A statute providing for an award of costs cannot be judicially expanded to include attorney’s fees. Harris v. Richard N. Groves Realty, Inc., 315 So.2d 528 (Fla. 4th DCA 1975). The court below was therefore correct in denying attorney’s fees to Garden following dismissal of the third party complaint. There is no merit in Gai den’s argument that attorney’s fees should be allowed in this case because in certain situations an indemnitee is entitled to recover attorney’s fees from an indemnitor.

As for the matter of costs exclusive of attorney’s fees, the trial court was also correct in its denial of Garden’s motion, for the simple reason that the motion did not include any specific items of costs to be taxed. However, we determine that the appellant Garden should be given leave to submit an amended motion in which it specifies those costs to which it claims it is entitled.

In summary, the trial court is reversed as to its “Order Containing Pinal Judgment,” in which Bankers was ordered to pay the attorney’s fees of the other defendants. The court’s denial of third party defendant Garden’s “Motion for Attorney’s Pees and Costs” is affirmed as to the denial of attorney’s fees, and reversed and remanded as to the denial of costs, with directions to permit Garden to submit an amended motion itemizing its alleged costs.

REVERSED in part, AFFIRMED- in part, and REMANDED.

ALDERMAN, ANSTEAD and LETTS, JJ., concur.

      . The order dismissing the crossclaim of Meredith and Morse has not been appealed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF VERO BEACH, Petitioner, v. DEPARTMENT OF TRANSPORTATION, Respondent.
    No. 76-2608.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    I. W. Cordisco, City Atty., and Daniel M. Kilbride, Jr., Asst. City Atty., Vero Beach, for petitioner.
    Alan E. DeSerio and H. Reynolds Sampson, Tallahassee, for respondent.
   PER CURIAM.

Petition denied.

ANSTEAD, DAUKSCH and LETTS, JJ., concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Alexander ROBERTSON, Appellant, v. Ruth ROBERTSON, Appellee.
    No. 76-916.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    James A. Grady, Pompano Beach, for appellant.
    Nathan Ross, Fort Lauderdale, for appel-lee.
   PER CURIAM.

Affirmed.

MAGER, C. J., and LETTS, J., concur.

ANSTEAD, J., concurs specially.

ANSTEAD, Judge,

concurring specially:

In this marriage of short duration, the wife was awarded an interest in certain bank accounts of the husband on the basis that the husband had previously made a gift to her of 50% of these accounts by adding her name thereto for a short period of time. I believe that the decision in Ball v. Ball, 335 So.2d 5 (Fla.1976), if applicable, would have mandated a different result. However, the Supreme Court specifically ruled that Ball was not to have retroactive application and was limited to real property. Accordingly, I concur in affirming the judgment of the trial court.


author: DAUKSCH, Judge.

text:
    Lorenzo S. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 76-498.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1977.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, James L. Eisenberg, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

REVERSED and REMANDED for new trial on the authority of Ringgo v. State, 339 So.2d 293 (Fla.2d DCA 1976) and Wheeler v. State, 344 So.2d 244 (Fla.1977).

MAGER, C. J., and CROSS, J., concur.


text:
    Susie Trammell WILSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-1017 and 76-1018.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    Edward R. Kirkland, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This court is of the opinion that the evidence was insufficient to sustain the convictions of the appellant, Susie Trammell Wilson, on two charges of aiding and assisting in conducting a lottery. The evidence was specifically lacking as to the existence of any actual lottery with which Wilson was connected. See Holliday v. State, 104 So.2d 137 (Fla. 1st DCA 1958) and Sagonias v. State, 89 So.2d 252 (Fla.1956). Accordingly, the judgments of conviction are hereby reversed.

MAGER, C. J., and ANSTEAD and LETTS, JJ., concur.


text:
    Joseph FODOR and Helen Fodor, Appellants, v. Claude L. DUVOISIN et al., Appellees.
    No. 76-2371.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    Peter N. Hanna, Fort Lauderdale, for appellants.
    William E. Boyle, Buck & Tatum, Fort Lauderdale, for appellee-Duvoisin.
   PER CURIAM.

The trial judge in his findings and final judgment specifically stated that he had “ . . . reviewed Circuit Court File No. 74-3233, being Joint Exhibit No. B, received into evidence 10-7-1976 . . ..” Copy of court file No. 74-3233 is not a part of the record on appeal. The trial court’s finding was not based solely upon the agreed stipulation of fact by counsel (Joint Exhibit No. A) which is a part of the record on appeal. We cannot say that the trial court’s finding is wrong unless we have the same record that was before the trial court. Steinhauer v. Steinhauer, 236 So.2d 665 (Fla. 4th DCA 1976).

AFFIRMED.

DOWNEY, ALDERMAN and DAUKSCH, JJ., concur.


author: PER CURIAM. DOWNEY, Judge,

text:
    BURNUP & SIMS, INC., a Delaware Corporation, and Nick A. Caporella, Petitioners, v. Thomas R. PLEDGER, Respondent.
    No. 76-2703.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    Robert Orseck of Podhurst, Orseck & Parks, and Fromberg, Fromberg & Roth, Miami, for petitioners.
    Wm. S. Frates of Frates, Floyd, Pearson, Stewart, Richman & Greer, Miami, for respondent.
   PER CURIAM.

Petition for Writ of Common-law Certio-rari is hereby denied.

MAGER, C. J., and ALDERMAN, J., concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting:

By Petition for Writ of Certiorari petitioners seek review of a discovery order entered by the trial court in an action for defamation.

Respondent Thomas A. Pledger sued petitioners Burnup & Sims, Inc., and Nick A. Caporella for damages allegedly arising from defamatory statements made by the petitioners. According to the complaint, Caporella, president and chief executive officer of Burnup & Sims, caused the preparation of a writing that, in essence, falsely charged Pledger, former president of Burn-up & Sims, with accepting personal benefits from Victor Posner to perform his corporate duties in a manner that injured the corporation financially. The complaint also alleged that: (a) on June 25,1976, Caporella made a telephone conference call to the presidents of fourteen other corporations and read the allegedly false writing to them as part of a plan or design to discredit Pledger, and (b) petitioners (in furtherance of their plan to discredit Pledger) made an attempt to serve the writing “as an alleged complaint upon Victor Posner in the State of New York on June 28, 1976.”

In its answer Burnup & Sims admitted the preparation of a complaint to be filed in New York State, and it admitted “placement of a telephone call on June 25, 1976, to other high executives within its corporate sphere . . . .”

During the course of deposing Caporella, Pledger’s counsel asked Caporella a number of questions which were objected to by Burnup & Sims and Caporella on the ground that they violated the attorney-client privilege, and Caporella refused to answer them.

In considering Pledger’s motion to compel discovery the trial court had before it Capo-rella’s deposition and Caporella’s affidavit filed in opposition to the motion to compel. With reference to the telephone conference call on June 25, 1976, the affidavit states in pertinent part:

“2. On Friday, June 25, 1976, and pri- or to that date I was engaged in consultation with Messrs. White & Case with respect to the question of whether a suit should be filed against Victor Posner. On that day, I placed a call to the heads of the various operating subsidiaries of Burnup & Sims in order to consult with them with respect to the advisability of bringing such a suit. I needed their judgment as to the effect of the bringing of such a lawsuit on the company’s overall business prospects and its customers. This conversation revolved around the factual background of the suit, legal advice regarding the suit received from White & Case, and litigation strategy with respect to this case. As I state in my deposition (pp. 54-56) the persons participating in the telephone were myself, Mr. William Mercurio, the Vice-President-Finance and a director of Burnup & Sims, Inc., Mr. Riley Sims, Chairman of the Board of Directors of Burnup & Sims; Mr. Norwood Wilson, President of Green Bank Services; Mr. James Hall, President of Georgia Electric; Mr. Mike Gay-lor, President of Smith-Sweager, Inc., Mr. William Deviney, Jr., President of Devi-ney Construction Company; Mr. Harold Pitman, President of Pitman & Pitman; Mr. Robert Caporella, President of BSI, Inc.; Mr. Andy Pitman, President of W. I. Pitman; Mr. Robert Stein, President of Burnup & Sims Florida Group 1; Mr. Robert Gruño, President of Burnup & Sims Florida Group 2; Mr. Ronald Rose-man, President of West Coast Line; Mr. Fred Wehmeyer, President of Southeastern Printing Company; Mr. David Pen-land, President of T. L. Buysard. At the time of the call, Mr. Mercurio, Mr. Sims and I were directors of Burnup & Sims and all of the other persons on the call were being invited to consider membership on Burnup’s Board of Directors. Mr. Norwood Wilson, Mr. James Hall, Mr. Leo Hussey, Mr. Harold Pitman and Mr. David Penland have become Directors since June 25.”

With regard to the relation of Burnup & Sims to its subsidiaries the affidavit states:

“3. It should be noted that Burnup & Sims itself is not an operating company, but is rather a legal vehicle (holding company) which owns all of the stock of thirteen separate subsidiaries, collectively, which constitute the operating business of Burnup & Sims. The holding company itself has but four officers, a Chairman, a President, a Vice President-Finance-Secretary and a Treasurer, and occupies modest headquarters (a converted grocery store) in West Palm Beach, Florida. From a practical business standpoint, presidents of the company subsidiaries — through which all of the company’s operations are conducted — are senior management officials of the business enterprise. Viewing Burnup & Sims on a basis comparable to most other business corporations not involving the holding company format, the presidents operating its subsidiaries would be senior divisional heads responsible for the company’s distinct profit centers. Were it not for the holding company format, each of these individuals would probably have the title of Executive Vice President of Burnup & Sims. Thus, in a very real sense they are the backbone of the senior management and decision making group that controls the company’s business.
“4. The nature of Burnup & Sims’ business as primarily a service company, providing the personnel and equipment necessary for a broad range of installation and maintenance work, adds a further important dimension to the participation of the subsidiary presidents in the company’s decision to commence litigation against Victor Posner. Because these key men, with their invaluable experience, personal contacts with important customers and so forth, would be so vitally interested in and indeed affected by the decision to oppose or not oppose a takeover by the raider, Victor Posner, and also because all of them were being invited to consider membership on the company’s Board of Directors, their participation in the management decision whether or not to commence the litigation was essential.”

The court denied the motion to compel discovery in part and granted it in part, specifically requiring Caporella to answer the following questions:

il * * * *
“h. Tell me what conversation you had when you called those people on the conference call?
“i. Did you instruct Mr. Mercurio to read portions of the complaint to these people?
“j. Mr. Caporella, I ask you, as the individual defendant, to tell us what you told these people in this conference call.
“k. Did you read or did Mr. Mercurio read any portions of the No. 2 complaint in this conference call?
“1. Did Mr. Mercurio read in this conference call anything comparable in substance to Paragraphs 5 and 7 of Plaintiff’s Exhibit 1, which you have looked at before?”

I find no problem with the trial court’s order relative to questions i, k, and 1. Whether or not the conference call included a reading to the subsidiary heads of portions or all of a proposed complaint does not appear to me to involve any invasion of the attorney-client relationship. However, requiring Caporella to tell “what conversation you had when you called these people on the conference call” could well do so. If, as alleged in his affidavit, Caporella discussed communications between Burnup & Sims and White & Case, the corporation’s counsel, relative to that litigation, then question K would surely be an invasion of the attorney-client relationship. It is, of course, true that no lawyer was involved in the telephone conference. However, considering that Burnup & Sims is a corporation and the people involved in the conference were officers, directors, or persons in managerial positions assisting the corporate head in making a serious corporate decision, the privilege should extend to that conversation. This is not totally unlike a corporate officer conferring with counsel on behalf of the corporation and then returning to discuss that advice with the corporate Board of Directors. Surely such a discussion would not denude the legal advice of the privileged protection, and there is no contention here that the attorney-client privilege does not apply to corporations. It clearly does. See Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314 (7th Cir. 1963); Annot: Privilege-Attorney-Corporate Client, 98 A.L.R.2d 241.

Accordingly, I would grant the Petition for Writ of Certiorari and direct the trial court to deny the motion to compel as to questions h and j.


author: ANSTEAD, Judge. PER CURIAM.

text:
    Donald Lee RINGEL, Appellant, v. STATE of Florida, Appellee.
    No. 76-2334.
    District Court of Appeal of Florida, Fourth District.
    July 1, 1977.
    Rehearing Denied Aug. 16, 1977.
    Richard E. Mandell, and Michael Sigman, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and Anthony J. Golden, Asst. Attys. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from an order denying a motion to dismiss an indictment against the appellant, Donald Lee Ringel. The basic issue on appeal is whether the trial court was correct in finding that the indictment against Ringel alleged a violation of law punishable by death or life imprisonment as provided in Section 39.02(5)(c), Florida Statutes (1975). In a case of first impression, we affirm.

Section 39.02(5)(c) makes provision for when a juvenile may be prosecuted as an adult:

A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set out in § 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult. ...

The indictment against Ringel alleged that he committed an armed robbery in violation of Section 812.13(2)(a), Florida Statutes (1975). In that section, armed robbery is declared to be a felony in the first degree, punishable by “imprisonment for a term of years not exceeding life imprisonment.” Ringel claims he could not be indicted as an adult because Section 812.13(2)(a) does not provide for punishment “by death or by life imprisonment” as required in Section 39.-02(5)(c). He claims that “a term of years not exceeding life imprisonment” does not include “life imprisonment.” Two reasons for this view are advanced: first, that a sentence under 812.13(2)(a) must be limited to a term of years, i. e., 20, 30, 40, 50, etc. and could not be for life imprisonment; and second, the legislature intended to limit the application of 39.02(5)(c) to offenses where the only two punishments that could be imposed are death and life imprisonment.

The constitutionality of Section 39.-02(5)(c) has been upheld by the Florida Supreme Court in an opinion which assumed that 39.02(5)(c) applied to the same offense involved herein. As a predicate to consideration of the constitutional issue it was there pointed out:

The first two counts of the indictment each carried a potential maximum sentence of life imprisonment.

Judge Owen of this court, in a discussion of the same armed robbery statutes, noted that the legislature, in providing a sentence of a term of years not exceeding life imprisonment, intended “that life imprisonment be the upper limit of the punishment imposed.” Likewise, it is our opinion that the maximum penalty provided under Section 812.13(2)(a) is life imprisonment, noRa term of years.

As to the intent of the legislature in enacting Section 39.02(5)(c) and its subsequent amendments Ringel cites several decisions from other states. However, these cases present no strong arguments either way and concede that legislative intent is not easily discernible:

Upon completion of the study of these and other authorities cited by the parties, we have found ourselves as much in the dark as to the legislative intent as when we commenced.

We couldn’t have said it better.

Section 39.05(5)(c) was amended in 1969 to add the words “or punishable by life imprisonment” after the existing words “punishable by death.” So, prior to 1969 jurisdiction was changed in cases “punishable by death.” Since Florida did not then and does not now provide a mandatory death sentence for any crimes, that section clearly meant cases where the maximum punishment was death. We believe that was the legislative intent prior to the amendment in 1969, and we feel that the phrase “punishable by life imprisonment” should also be construed to mean cases where life imprisonment is the maximum punishment provided. Since life imprisonment is the maximum penalty provided in Section 812.13(2)(a) we find the motion to dismiss should have been denied.

The second point raised by Ringel challenges the applicability of the minimum sentencing provisions of Section 775.087, Florida Statutes (1975) to a juvenile. Section 39.02(5)(c) provides that a juvenile indicted thereunder “shall be handled in every respect as if he were an adult.” The trial court was correct in applying Section 775.087.

For the reasons set out above the judgment and sentence of the trial court are affirmed.

ALDERMAN and DAUKSCH, JJ., concur.

ON PETITION FOR REHEARING

PER CURIAM.

By petition for rehearing the appellant, Donald Lee Ringel, seeks to have this court certify the main issue on appeal as a question of great public interest. As we have previously noted, the issue is one of first impression and we also agree with Ringel that it is of great public interest. Accordingly, this court hereby certifies that the decision rendered herein passes upon the following question of great public interest:

Do the provisions of Section 39.02(5)(c) of the Florida Statutes relating to the treatment of juvenile offenders as adults apply to violations of the law the penalty for which includes but may also be less than life imprisonment?

In all other respects the petition for rehearing is denied.

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

      . Johnson v. State, 314 So.2d 573 (Fla. 1975). The case involved a violation of Section 813.-011, the predecessor of Section 812.13, and other offenses.

      . Harper v. State, 306 So.2d 141 (Fla. 4th DCA 1975).

      . Jaramillo v. District Court, 173 Colo. 459, 480 P.2d 841 (1971); also see Maddox v. People, 178 Colo. 366, 497 P.2d 1263 (1972) and Garrett v. State, 481 S.W.2d 225 (Mo.1972).

      . Then Section 39.02(6)(c).


text:
    STATE of Florida, Appellant, v. John L. McLAUGHLIN, Appellee.

    No. 76-1721.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1977.
    Rehearing Denied Aug. 16, 1977.
    Robert L. Shevin, Atty. Gen., Tallahassee, Basil S. Diamond and Anthony J. Golden, Asst. Attys. Gen., West Palm Beach, for appellant.
    Kirk N. Kirkconnell of Muller & Kirkcon-nell, Winter Park, for appellee, McLaughlin.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, Asst. Public Defender, Tatjana Ostapoff, Legal Intern, and James L. Eisenberg, Asst. Public Defender, West Palm Beach, for ap-pellees Mitchell, Wright, Armentrout, Beaver, Santarsiere, Fulghum, Hopson, North-wick, and Elahrag.
    Leon B. Cheek, III, Altamonte Springs, for appellee Prager.

       Consolidated with the following Appellees;
      Jay Dean Mitchell, 76-1735; Thomas Heyden Wright Jr., 76-1736; Robert William Armentr-out, 76-1737; William B. Beaver, 76-1738; Joseph J. Santarsiere, 76-1745; Gregory C. Prager, 76-1746; Michael L. Fulghum, 76-1747; Robert Allen Northwick, 76-1748; Gamal A. Elahrag, 76-1749; Michael L. Hopson, 76-1750; Robert Allen Northwick, 76-1787; and Larry Stevens, 76-2385.

   PER CURIAM.

REVERSED. The sole issue involved in these consolidated appeals was resolved by this court’s opinion in Ringel v. State, Fla. App., 352 So.2d 88, opinion issued simultaneously herewith.

ALDERMAN, ANSTEAD and DAUKSCH, JJ., concur.


text:
    William Edward BOSWELL, Sr., Appellant, v. Betsy Marie BOSWELL, Appellee.
    No. 76-2728.
    District Court of Appeal of Florida, Fourth District.
    July 22, 1977.
    S. Robert Zimmerman and William F. Sullivan, Pompano Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Upon consideration fof the record and brief of appellant, appellee having failed to provide the court with a brief, we determine the order of the trial court bearing date December 14, 1976 modifying alimony and adjudicating property rights to be void in its entirety for lack of the trial court to provide for alimony in the final judgment of dissolution of marriage or reserve jurisdiction for future determination. Weiss v. Weiss, 118 So.2d 833 (Fla.3d DCA 1960). The change of property rights is also void for lack of jurisdiction. Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948). Accordingly, the order bearing date December 14, 1976 is reversed.

Reversed.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., concurs in conclusion only.


text:
    Mabel BERRY, Appellant, v. STATE of Florida, Appellee.
    No. 76-1493.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1977.

      Richard L. Jorandby, Public Defender, Prank B. Kessler, Asst. Public Defender, and David R. Evans, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto and Benedict P. Kuehne, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

ORDER GRANTING APPELLEE’S MOTION TO WITHDRAW MANDATE AND REPUBLISH OPINION

We issued an opinion in this case on April 29, 1977. It appears, however, that the office of the Attorney General, as counsel for appellee, did not receive a copy of the opinion until July 8, 1977. As a result of inadvertence, mistake or error the mandate was issued without a copy of the court’s opinion having been sent to appellee. Normally we would lose jurisdiction to withdraw the mandate at the termination of the term of court at which the mandate was issued, but an exception exists when the mandate is issued because of inadvertence, mistake or error. McGregor v. Hammock, 114 Fla. 259, 154 So. 191 (1934). Appellee’s motion is granted and we hereby withdraw the mandate and republish our opinion.

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


text:
    Philip J. CHILLEMI, d/b/a Phil Chillemi & Associates Real Estate, Appellant, v. Jasper C. ROSE, Appellee.
    Nos. 77-526, 77-527.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 1977.
    Hal H. McCaghren of McCaghren Law Offices, West Palm Beach, for appellant.
    Michael J. Monchick of Bernstein, Sharff & Monchick, West Palm Beach, for appel-lee.
   PER CURIAM.

The appellant, Philip J. Chillemi, is appealing orders for partial summary judgment and judgment on the pleadings in a partition action. This court is of the view that there are issues on the face of the pleadings and genuine issues of material fact which precluded entry of the orders appealed. Accordingly, the orders of the trial court granting a partial summary judgment and granting a judgment on the pleadings are hereby reversed for further proceedings consistent herewith.

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.


text:
    Philip J. CHILLEMI, d/b/a Phil Chillemi & Associates Real Estate, Appellant, v. Jasper C. ROSE, Appellee.
    Nos. 77-748, 77-749.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.
    Hal H. McCaghren of McCaghren Law Offices, West Palm Beach, for appellant.

      Michael J. Monchick of Bernstein, Sharff & Monchick, West Palm Beach, for appel-lee.
   PER CURIAM.

The two orders appealed from here are predicated upon orders previously appealed and reversed by this court. Chillemi v. Rose, 352 So.2d 92, 4th DCA No. 77-526 and 77-527, opinion issued August 9, 1977. Accordingly, the two orders of April 6, 1977 entered by the trial court are reversed.

ALDERMAN, C. J., and CROSS and AN-STEAD, JJ., concur.


text:
    STATE of Florida, Appellant, v. Oscar LEWIS, Appellee.
    No. 76-2712.
    District Court of Appeal of Florida, Fourth District.
    Aug. 23, 1977.
    Rehearing Denied Oct. 4, 1977.
    David H. Bludworth, State’s Atty., and James R. Wolf, Asst. State’s Atty., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Henry Prettyman, Asst. Public Defender, West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from an order discharging the appellee, Oscar Lewis, under the provisions of the speedy trial rule. The issue is whether Lewis was a “prisoner in Florida” under Rule 3.191(b)(1) of the Florida Rules of Criminal Procedure thereby enlarging the time in which he could be brought to trial from 180 days to one year. We hold that he was and should not have been discharged.

Lewis was arrested for robbery on November 18, 1975 but released on December 11, 1975 because the State failed to file formal charges. Thereafter, he was sentenced to prison for five years on an unrelated criminal conviction on April 27, 1976. On August 26, 1976, while in prison, Lewis was rearrested on the robbery charge. On November 22, 1976 the trial court granted Lewis’ motion for discharge for failure of the State to bring him to trial within 180 days of his initial arrest on November 18, 1975 pursuant to Fla.R.Crim.P. 3.191(a)(1). In so doing the trial court rejected the State’s contention that Rule 3.191(b)(1) should be applied to enlarge the speedy trial time to one year because of Lewis’ subsequent imprisonment on the unrelated charge.

The Florida Supreme Court, faced with almost an identical factual situation, reversed a trial court order which refused to apply Rule 3.191(b)(1) to enlarge the speedy trial time. State v. Lott, 286 So.2d 565 (Fla.1973). In Lott the trial court had held that Rule 3.191(b)(1) was unconstitutional in providing an unequal time schedule for speedy trial without sufficient reason therefor. The Supreme Court opinion upholding the rule basically addressed itself only to the constitutional issue, but the holding of the Court reversed the order of the trial court discharging the defendant and ordered the information reinstated. In other words, we perceive the holding of the Court in that case to be that the 180 day time period did not apply to allow the defendant’s discharge, but rather Rule 3.191(b)(1) applied to extend the time to one year. The Supreme Court will not pass upon a constitutional issue if a case can be decided on other grounds. Hence, the Supreme Court in Lott could have simply held that Rule 3.191(b)(1) was not applicable to the facts present and not passed on the constitutional issue. A holding that Rule 3.191(b)(1) did apply is implicit in the Court’s decision to treat the constitutional issue and reverse the trial court’s order of discharge. We are bound by that decision.

Nevertheless, Rule 3.191(b)(1) is not without ambiguity as to its application to facts such as were involved here and in Lott.

Rule 3.191(a)(1) requires a defendant to be brought to trial within 180 days after he is taken into custody. Rule 3.191(b)(1) enlarges the time for trial to one year:

(b)(1). Prisoners in Florida; Trial Without Demand. Except as otherwise provided, a person who is imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information, whether or not a detainer has been filed against such person, shall without demand be brought to trial within one year if the crime charged be a misdemeanor or felony not involving violence, within two years if the crime charged be a noncapital felony involving violence, or if the crime charged be punishable by death; and if not brought to trial within such term shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime. The period of time established by this rule shall commence when the person is taken into custody as a result of the subject conduct or criminal episode, or when the subject charge of crime is filed, whichever is earlier, whether or not such period may commence to run before such person began to serve his term of imprisonment. The periods of time established by this section shall govern if the person is released from confinement while less than six months of such period of time for trial remains; if more than six months of such period of time for trial remains upon release from confinement, this section shall cease to apply and the rights of such person and of the State shall be governed by §§ (a)(1) and (2).

At first glance, the rule seems to define a person covered to be one

. imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information .

This initial language would seem to imply a construction such as Judge Mager discussed-in State v. Wise, 336 So.2d 3 (Fla. 4th DCA 1976):

[T]he rule on its face contemplates that the prisoner is already in custody and serving in prison in connection with a crime other than the one for which he is currently being charged . . . . It may also be contemplated that such rule was intended to apply to the circumstances where a defendant was admitted to bail either awaiting trial or awaiting the outcome of an appeal. 336 So.2d 3, 7.

And several decisions have been rendered involving subsequent arrests or imprisonments where the 180 day rule has been held to apply and the applicability of Rule 3.191(b)(1) has not been discussed. Some of these decisions were relied on by the trial court here.

The period of one year provided for trial begins to run when the person is taken into custody or when the charge is filed, whichever is earlier. But clearly the rule is not limited to persons physically in custody since the time may start running “before such person began to serve his term of imprisonment.” So a subsequent imprisonment in an unrelated case after the person is arrested or charged is specifically contemplated by the rule.

Lewis contends that although subsequent imprisonment may be covered it must be limited to a subsequent imprisonment for which sentence had already been passed at the time of arrest or charge. But we can perceive no valid reasons for invoking the rule in the one instance but not in the other. The underlying problem addressed by the rule was recognized by the United States Supreme Court at an early date:

Undoubtedly a defendant is entitled to a speedy trial and by a jury of the district where it is alleged the offense was committed. This is the injunction of the Constitution, but suppose he is charged with more than one crime, to which does the right attach? He may be guilty of none of them, he may be guilty of all. He cannot be tried for all at the same time, and his rights must be considered with regard to the practical administration of justice.

This dilemma was recognized by the Florida Supreme Court in Lott, supra. In responding to an argument that Rule 3.191(b)(1) unfairly deprived a defendant of a speedy trial, the Court pointed out:

Rule 3.191 insures speedy trial rights of prisoners rather than derogating therefrom. Furthermore, Rule 3.191(b)(2) does provide that a prisoner upon demand for speedy trial filed with the court having jurisdiction and upon service of copy of such demand upon the prosecuting attorney shall be brought to trial within six months (180 days).

Thus the court recognized that the prisoner, whether imprisoned before or after the current charges, has the means under the rule to shorten the time in which he may be tried if he so desires. And the rule itself provides that if more than six months of the one year remain when the prisoner is released from imprisonment then the rule shall cease to apply and “the rights of such person and of the State shall be governed by §§ (a)(1) and (2).” In other words the 180 day period shall then apply.

While it might appear easy to criticize the draftsmanship of Rule 3.191 we must be mindful that the problem of insuring speedy trials when multiple prosecutions are involved is no easy task and involves the balancing of the rights of the defendant with the rights of public justice. We can see no violations of the rights of an accused by the provisions of Rule 3.191(b)(1) as we construe them here.

It is our holding, then, that a person who is either already imprisoned on an unrelated charge at the time he is charged or arrested, or who is subsequently imprisoned on an unrelated charge within 180 days, becomes subject to the provisions of Rule 3.191(b)(1). Accordingly, the order discharging the appellant, Oscar Lewis, is reversed and the cause is remanded for further proceedings consistent herewith.

ALDERMAN, C. J., and DOWNEY, J., concur.

ON PETITION FOR REHEARING

PER CURIAM.

On petition for rehearing the appellee contends that the issue decided in this cause is one of great public interest. We agree. Accordingly, we hereby certify that the decision herein passes upon the following question of great public interest:

Whether the speedy trial time provisions of Fla.R.Crim.P. 3.191(b)(1) apply to a defendant who, after being arrested or charged, is thereafter imprisoned on an unrelated charge?

Except as the certification of this question, the petition for rehearing is denied.

ALDERMAN, C. J., and DOWNEY and ANSTEAD, JJ., concur.

      . Singletary v. State, 322 So.2d 551 (Fla.1975).

      . Richardson v. State, 340 So.2d 1198 (Fla. 4th DCA 1976); Walker v. State, 281 So.2d 41 (Fla. 2d DCA 1973); Ramos v. Amidon, 263 So.2d 602 (Fla. 2d DCA 1972).

      . Beavers v. Haubert, 198 U.S. 77, 25 S.Ct. 573, 49 L.Ed. 950 (1905).

      . United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1965).


text:
    James E. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 76-2103.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1977.
    Rehearing Denied Dec. 13, 1977.
    Alan H. Schreiber, Public Defender, and Stuart M. Lerner, Asst. Public Defender, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Our study of the briefs and record in this case discloses no reversible error to have been committed.

Regarding appellant’s third point on appeal involving the trial court’s reinstruction of the jury, see Henry v. State, 350 So.2d 512, opinion filed September 27,1977.

AFFIRMED.

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


text:
    Patrick Michael AKERS, Appellant, v. STATE of Florida, Appellee.
    No. 76-973.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1977.
    Rehearing Denied Dec. 15, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was convicted of Murder in the Second Degree after having been charged with Murder in the First Degree. We find merit in one of Appellant’s assignments of error therefore need not discuss the others.

Under the guise of Williams Rule evidence, Williams v. State, 110 So.2d 654 (Fla.1959), the State was permitted to introduce items into evidence or testimony about certain items seized from the victim’s automobile shortly after his death. These items included drug paraphernalia, thirty-five pounds of marijuana, cocaine and a gun and holster. There was an assurance from the prosecutor that he would be able to or had established the relevance of these items to the trial. We have considered the record and cannot find the connection between the Defendant and these drugs, gun and paraphernalia found in the victim’s car nor can we find the promised evidence that the Appellant was in possession of the victim’s car. The prosecutor also alluded to a drug transaction between the Appellant and the victim thereby to show a motive; but no such transaction was ever proved. As was said in Williams, supra, and has been said over and over again, the State cannot introduce evidence of another crime unless some relevancy to the trial at hand is shown by the evidence. An additional problem here is that the drugs became rather a highlight in the trial and probably diverted the jury’s attention from the truly relevant evidence. See Ashley v. State, 265 So.2d 685 (Fla. 1972); Hirsch v. State, 279 So.2d 866 (Fla. 1973); Green v. State, 228 So.2d 397 (Fla. 2d DCA 1969).

If prosecutors insist upon crying the wolf of the Williams Rule they might eventually find the courts hard of hearing.

REVERSED and REMANDED for a new trial.

CROSS and DOWNEY, JJ., concur.


author: DOWNEY, Judge.

text:
    Phillip M. EADDY, a/k/a Theron William Bryant, Appellant, v. STATE of Florida, Appellee.
    No. 77-115.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1977.
    Rehearing Denied Dec. 15, 1977.
    R. V. Richards, Special Public Defender, Titusville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant seeks reversal of the judgment and sentence finding him guilty of carrying a concealed weapon and placing him on probation for seven years. The specific error alleged by appellant is the denial of his motion for discharge under the speedy trial rule.

The following is the chronology of this case, as set forth in appellant’s brief:

“(1) On August 20, 1975, the Defendant was arrested in Brevard County and charged with an offense [carrying a concealed weapon] and posted a cash bond conditioned upon his appearance for preliminary hearing on August 25, 1975. The Defendant failed to appear on the appearance date, and the bond was es-treated and a bench warrant issued.
“(2) On September 25, 1975, the State of Alabama filed with Brevard County a detainer on a charge of escape from an Alabama prison.
“(3) On October 7, 1975, the Defendant was arrested in DeSoto County on another charge.
“(4) On October 8,1975, Brevard County, by teletype, placed a detainer with DeSoto County, and on October 9, 1975, sent a letter to DeSoto County including a Brevard County warrant on a Brevard County charge, and notified DeSoto County of the Alabama detainer.
“(5) On November 3, 1975, Indian River County filed a detainer with DeSoto County as to a third charge against the Defendant.
“(6) Sometime between November 3, 1975, and December 17,1975, the Brevard County State Attorney’s Office agreed with the Indian River County State Attorney’s Office that the Defendant could be tried in the Indian River case before he was to be brought back to Brevard County on the Brevard County detainer.
“(7) On December 17, 1975, DeSoto County made a decision not to prosecute the Defendant on the DeSoto County charge.
“(8) On December 18,1975, Indian River County obtained custody of the Defendant from DeSoto County.
“(9) On December 19, 1975, DeSoto County formally nolle prosequi the DeSo-to County charge against the Defendant.
“(10) On January 5, 1976, the Defendant pled not guilty to the Indian River County charge, and was held in custody in Indian River County until April 27, 1975, [sic] when the trial on the Indian River County charge was commenced, resulting in a verdict of not guilty on April 29, 1976.
“(11) On April 30, 1976, Brevard County obtained custody of the Defendant from Indian River County.
“(12) On June 3, 1976, the Defendant filed a motion to dismiss for failure to provide a speedy trial under RCrP Rule 3.191, which motion was subsequently amended.
“(13) On June 6, 1976, the trial Court heard the Defendant’s amended motion to discharge. The aforementioned facts were stipulated to by the State and the defense, adopted by the Court and the Defendant’s motion was denied. On said date, Defendant entered a conditional plea specifically reserving right to appeal the denial of his amended motion to discharge.”

It is appellant’s contention that Fla.R. Crim.P. 3.191(a)(1) required the State to bring appellant to trial without demand within 180 days from the date Brevard County filed the detainer with DeSoto County. The State on the other hand contends that the speedy trial time began to run as to appellant on the weapons charge when Brevard County obtained custody of appellant on April 30,1976. We agree with the State’s position and affirm the judgment and conviction appealed from.

The question presented by this appeal is: Does the filing of a detainer against an accused who is imprisoned outside the jurisdiction of the authority which filed the de-tainer activate the 180 day period within which the accused must be tried under Fla. R.Crim.P. 3.191(a)(1)?

At the present time the answer to that question appears to be in conflict. In State v. Sutton, 269 So.2d 712 (Fla.2d DCA 1973), and Hargrove v. State, 281 So.2d 390 (Fla.2d DCA 1973), the Second District Court of Appeal held that the time for bringing an accused to trial under the Rule begins to run from the date a detainer is filed. But the First District Court of Appeal in State ex rel. Williams v. Eastmoore, 297 So.2d 572 (Fla.1st DCA 1974), expressly refused to follow Sutton and Hargrove and held:

“The sole question presented by this suggestion for writ of prohibition is whether or not Florida Rule of Criminal Procedure 3.191, 33 F.S.A., requires that an accused be brought to trial within 180 days of the detainer being issued against him. Florida Rule of Criminal Procedure 3.191(a)(1) states that the 180-day time period ‘. . . shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.’ At the time the detainer was issued against relator he was not in custody as a result of the conduct or criminal episode arising in Putnam County but rather was in custody exclusively on the charges in Palm Beach County. The detainer did not place relator in custody as a result of his conduct in Putnam County.' He was not placed in custody as a result of his alleged criminal episode in Putnam County until he was freed on the Palm Beach charges and formally arrested on the Putnam County charges.
“[1,2] We hold that under F.R.Cr.P. 3.191(a)(1) the 180-day time period in which the state had to bring relator to trial commenced to run when he was formally arrested on the Putnam County charges. We are aware that our sister court in Hargrove v. State, 281 So.2d 390 (2 Fla.App. 1973), and State v. Sutton, 269 So.2d 712 (2 Fla.App. 1973), has taken the position that the time period commences to run when a detainer is issued. As a detainer does not operate to place the person against whom it is issued in custody as a result of the conduct which gives rise to the detainer, we respectfully decline to follow the decisions of our sister court in Hargrove and Sutton, supra.” 297 So.2d at 573.

The First District elaborated on Eastmoore in O’Bryan v. State, 326 So.2d 83 (Fla.1st DCA 1976), stating:

“[4-6] After the detainer warrant was filed and before O’Bryan demanded a speedy trial, neither Constitution nor Rule required the State to move with the same diligence toward trial as is necessary when the accused is in the State’s custody or otherwise under its restraint. The detainer warrant is not equivalent, for purposes of speedy trial considerations, to an arrest on indictment or information. State ex rel. Williams v. Eastmoore, 297 So.2d 572 (Fla.App.1st, 1974); contra, Hargrove v. State, 281 So.2d 390 (Fla.App.2d, 1973), and State v. Sutton, 269 So.2d 712 (Fla.App.2d, 1972). The most pressing burden which a speedy trial alleviates is that which results from pretrial incarceration. Barker v. Wingo, 407 U.S. 514, 532-33, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101, 118 (1972). To request another sovereign to make its prisoner available at the end of his sentence does not newly imprison the accused. Our Rule therefore does not extend speedy trial benefits to a foreign prisoner until he demands „ those benefits. Perez v. State, 283 So.2d 575, 576 (Fla.App.4th, 1973), cert. den. 289 So.2d 739 (Fla.1974).” 326 So.2d at 87-88.

In obiter dicta this court stated in Stevenson v. State, 300 So.2d 281 (Fla.4th DCA 1974), that the speedy trial time commenced with the filing of a detainer. That statement was not necessary to the decision in that case and we expressly recede therefrom because we agree with the reasoning set forth in the above cited decisions of the First District Court of Appeal.

Accordingly we conclude that the trial court committed no error in denying appellant’s motion for discharge pursuant to Rule 3.191(a)(1). The judgment and sentence appealed from is AFFIRMED.

LETTS, J., and BURNSTEIN, MIETTE K., Associate Judge, concur.


text:
    In re ESTATE of Publio L. CARBONELL, Deceased. Francesca CARBONELL, etc., et al., Appellants, v. Joseph L. BRENNAN, Appellee.
    No. 76-2066.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1977.

      Kenneth B. Sherouse, Jr., Miami, for appellants.
    Harris, Albury & Morgan, Key West, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Appellants instituted an action in the Circuit Court of Monroe County, Florida, in opposition to the petition of appellee for probate of the will of appellants’ father and for the appointment of administratrix cum testamento annexo. It was appellants’ contention that their father lacked the requisite testamentary capacity to execute a valid will and that the will was executed as a result of undue influence exercised over him by his nephew, Joseph L. Brennan, now deceased.

Upon a full hearing on the disputed issues of law and fact, the trial court entered the following order which is being appealed:

“THIS CAUSE coming on to be heard this day upon the petition of KATHRYN AMANDA BRENNAN praying for an order admitting to probate the Last Will and Testament of Publio L. Carbonell, deceased, and further upon petition of Kathryn Amanda Brennan for an order appointing her as administratrix cum tes-tamento annexo of said decedent’s Last Will and Testament, and upon Answer and Caveat in opposition to petition for probate of Will, and in opposition to appointment of Kathryn Amanda Brennan as administratrix cum testamento an-nexo, brought by Francesca Carbonell and Michael Carbonell, daughter and son of the said decedent, respectively, and it appearing to the Court, after due and regular notice to the parties, upon adversary proceedings, from the evidence submitted as follows:
“(a) That Publio L. Carbonell, a legal resident of the City of Key West, County of Monroe and State of Florida, departed this life on or about the third day of September, 1975, leaving a Last Will and Testament attested by Robert T. Feldman and Sheila R. Anderson as attesting witnesses, and sworn to by the testator and acknowledged before Dorothy M. Bransford, Notary Public, State of Florida at Large, and that proof of the said execution has been made as. required by law, and
“(b) That the document presented to this Court for probate as the Last Will and Testament of the decedent Publio L. Carbonell was properly executed and is entitled to be admitted to probate and record, and
“(c) That the evidence presented to this Court by Respondents/Caveators, Francesca Carbonell and Michael Car-bonell, and on their behalf, is insufficient to overcome the presumption that the testator was in possession of his faculties at the time of his execution of the said Last Will and Testament, to-wit: on the 5th day of June, 1975, and
“(d) That Joseph L. Brennan, the executor nominated in and by the said Last Will and Testament of Publio L. Carbonell, predeceased the testator, leaving him surviving four (4) minor children who are blood kindred of the testator Publio L. Carbonell, deceased, which said children are entitled to take the property of decedent devised and bequeathed to their father by the said Publio L. Carbonell, deceased; and the said Joseph L. Brennan left him surviving a spouse, to-wit: Kathryn Amanda Brennan, who is the natural mother and sole natural guardian of the decedent Joseph L. Brennan’s minor children, and
“(e) Under the provisions of Section 733.301, Florida Statutes, petitioner Kathryn Amanda Brennan is entitled to preference to be appointed personal representative in the estate of Publio L. Carbonell, deceased,
“Now, Therefore, it is
“ADJUDGED that the Will bearing date the 5th day of June, 1975, and attested by Robert T. Feldman and Sheila R. Anderson as subscribing and attesting witnesses, is admitted to probate according to law as and for the Last Will and Testament of the decedent, and it is further
“ADJUDGED that Kathryn Amanda Brennan is appointed personal representative of the estate of the decedent, and that upon taking the prescribed oath, filing designation of resident agent and acceptance, and entering into bond to be approved by this Court in the sum of $10,000.00, Letters of Administration cum testamento annexo shall be issued for said estate.
“ORDERED this 5th day of October, A.D. 1976.”

This court has carefully considered the contentions presented by the appellants in the light of the record on appeal and briefs and concludes that no reversible error has been shown. The findings of the trial court are supported by competent substantial evidence, and in our view the trial court properly ruled upon the legal questions involved.

Affirmed.


author: SMITH, Judge.

text:
    Scott Daniel PHIPPS and Russell W. Binstead, Appellants, v. STATE of Florida, Appellee.
    No. FF-498.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1977.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellants were convicted on a joint trial of aggravated assault, attempted kidnapping, and grand larceny. Binstead questions the sufficiency of the competent evidence against him on the grand larceny charge. A key link in the circumstantial chain of evidence against Binstead was Phipps’ presence in the stolen vehicle with another, arguably Binstead. However, Phipps’ presence in that vehicle was not established by evidence admissible against Binstead, but only by Phipps’ confession. The evidence was insufficient to support the conviction of Binstead for grand larceny.

Phipps urges that his enhanced sentence as a recidivist under Section 775.-084(4)(a), Florida Statutes (1975), was not accompanied by a written order, entered in the record, to the effect that the enhanced sentence “is necessary for the protection of the public from further criminal activity by the defendant . . . .” See Chukes v. State, 334 So.2d 289 (Fla. 4th DCA 1976). We do not consider that a written order to that effect is essential. A finding announced at the sentencing hearing is sufficient to satisfy the statute. Phipps makes no assertion that the trial judge entirely omitted that finding at the hearing, and he brings no transcript here to evidence its omission.

Phipps’ convictions and sentences are AFFIRMED. Binstead’s conviction and sentence for grand larceny are VACATED, and his other convictions are AFFIRMED.

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


text:
    FIRST ATLANTIC BUILDING CORPORATION, Appellant, v. NEUBAUER CONSTRUCTION COMPANY, Appellee.
    No. 76-741.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Rehearing Denied Dec. 14, 1977.

      Fred N. Kellner of Mershon, Sawyer, Johnson, Dunwody & Cole, Miami, for appellant.
    Larry R. Leiby of Kavanaugh & Leiby, and Preddy, Haddad, Jutner, Hardy & Josephs, Miami, for appellee.
   DOWNEY, Judge.

First Atlantic Building Corporation appeals from a judgment entered in favor of Neubauer Construction Company for $37,-774.00. Neubauer has cross-appealed, contending the amount awarded was insufficient, and that it was additionally entitled to foreclosure of a mechanic’s lien it had filed against First Atlantic’s property.

As a result of a contract between First Atlantic and Neubauer for $120,959.00, Neubauer commenced construction on seven buildings on First Atlantic’s property. During the course of construction First Atlantic became dissatisfied with Neubauer and terminated the contract and put Neu-bauer off the construction site. In due course Neubauer filed a mechanic’s lien and sought to foreclose it, claiming First Atlantic was indebted to Neubauer in the sum of $37,615.00. The trial court found that:

1) First Atlantic revoked the contract without fault on Neubauer’s part.
2) The contract price was $120,959.00. It would have cost Neubauer $60,100.00 to complete his contract and First Atlantic had already paid Neubauer $23,-085.00. Thus Neubauer was entitled to recover $37,774.00 from First Atlantic.
3) Neubauer was not entitled to a mechanic’s lien due to a waiver of lien clause in the contract between the parties.
4) Neubauer was not entitled to recover for material it left on the job site which material First Atlantic kept.

We conclude that the record supports the judgment as to the finding that First Atlantic breached the contract and that Neu-bauer is entitled to recover damages. However, the record does not support the amount of damages awarded to Neubauer nor the refusal to foreclose its mechanic’s lien.

Neubauer attempted to prove its damages for breach of the contract by having its president give testimony estimating the percentage of completion of each of the buildings involved in the contract. The president testified he then added those sums together and subtracted that sum from the contract price, less the amount First Atlantic had already paid, to arrive at the sum Neubauer claimed was due it. However such testimony is not competent evidence to prove damages for breach of a construction contract. Proper proof to support a claim for damages by a contractor against an owner for breach of contract is the contractor’s lost profit together with the reasonable cost of labor and materials incurred in good faith in partial performance of the contract. Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306; 104 A.L.R. 216 (1936); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971); 94 Fla.Jur., Damages, § 83. Thus on the evidence presented the circuit court erred in finding that Neubauer was entitled to recover $37,615.00. We express no opinion as to what amount Neubauer may be able to prove it is entitled to on retrial.

Turning now to the cross appeal, Neu-bauer contends it was entitled to between $9,000.00 and $10,000.00 for certain material which it had purchased and left on the job. This contention is not supported by adequate pleadings, but there was evidence adduced that the value of this material was between $9,000.00 and $10,000.00. Since the question of damages must be tried again, the trial court can entertain amendments to the pleadings and retry this issue also.

Next, the trial court held in its final judgment that Neubauer was not entitled to a lien “due to the waiver of lien clause in the contract”. The controversial provision in question is:

“Contractor will save and keep the building or buildings referred to in this Agreement and the lands upon which they are situated free from all Mechanic’s Liens and other liens by reason of his work or of any materials or other things used by him therein. If the Contractor fails to remove the lien by bonding it or otherwise the Owner may retain sufficient funds, out of any money due or thereafter to become due by Owner to the Contractor, to pay the same and all costs incurred by reason thereof and may pay said lien or liens and costs out of any funds at any time in the hands of Owner owing to Contractor. The Contractor agrees that if it purchases any material from any material man who files a notice of intention to claim a lien with the Owner, then the Owner shall have the right to pay to the material man filing the notice of intention to claim a lien all sums of monies claimed to be due to the material man and such payments by the Owner shall constitute payment on account of the Contractor.”

Because the foregoing provision contains no clear waiver of Neubauer’s right to file a mechanic’s lien, we do not believe that provision constitutes a waiver by Neubauer of its right to file a lien for the labor and materials it furnished to First Atlantic, since any ambiguity is to be resolved against a waiver. Orlando Central Park, Inc. v. Master Door Company of Orlando, Inc., 303 So.2d 685 (Fla. 4th DCA 1974). However, for aught we know there may be other reasons why the trial court may find Neubauer is not entitled to a mechanic’s lien. Therefore, on retrial the trial court should consider the question of Neubauer’s entitlement to a mechanic’s lien and the foreclosure thereof.

Finally, First Atlantic contends it was entitled to have the court award it attorney’s fees. First Atlantic argues first that Neubauer failed to obtain the relief it sought (foreclosure of its mechanic’s lien) and instead merely obtained the award of a money judgment for breach of contract; therefore, First Atlantic is entitled to attorney’s fees as the prevailing party. We reject this position. By proving that First Atlantic breached the contract Neubauer became the prevailing party. Emery v. International Glass & Mfg., Inc., 249 So.2d 496 (Fla. 2d DCA 1971).

Second, First Atlantic argues that under the following provision of the contract between the parties, it was entitled to the award of attorney’s fees without regard to who prevailed in the litigation between the parties:

“17. In the event that any action is instituted against the Owner either by the Contractor or by any persons claiming privity with him such as material men or laborers, then and in that event, the Contractor shall be responsible for the payment of reasonable attorney’s fees expended by the Owner in defending such. In the event the Owner institutes or maintains an action to enforce this Agreement or any part hereof or any obligations covered under this Agreement, either in an original action or in an action brought by anyone else, then the Contractor agrees to pay an attorney’s fee to the Owner.”

We reject this argument for the following reason. The trial court found that First Atlantic breached the contract in question. It would be an anomaly to permit a party who breaches a contract to rely on the same contract to reimburse it for expenses, such as attorney’s fees, which arose out of the breach. Thus, the trial court’s refusal to allow First Atlantic attorney’s fees in the trial court was proper. Cf. Federal Home Loan Mortgage Corporation v. Taylor, 318 So.2d 203, 209 (Fla. 1st DCA 1975).

Accordingly, the judgment appealed from is affirmed as to the question of First Atlantic’s liability for breach of contract and reversed and remanded for a new trial as to the following issues: 1) the amount of Neu-bauer’s damages for First Atlantic’s breach of contract; 2) whether Neubauer is entitled to damages for the materials it left on First Atlantic’s property; and 3) whether Neubauer is entitled to foreclose a mechanic’s lien on First Atlantic’s property. In all other respects the judgment appealed from is affirmed.

AFFIRMED in part; REVERSED in part; and REMANDED.

ALDERMAN, C. J., and GREEN, OLIVER L., Associate Judge, concur.


text:
    William E. FREBER, Appellant, v. STATE of Florida, Appellee.
    No. 76-1483.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Rehearing Denied Dec. 13, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler and James K. Green, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

The Defendant was convicted of breaking and entering with intent to commit a misdemeanor. At trial the eyewitness did not identify the Defendant as the person who committed the breaking and entering and two deputies were called to testify that the eyewitness did identify the Defendant at the scene as the perpetrator. The facts of this case are thus quite similar to those set out in Laws v. State (Fla.4th DCA 1977), Case No. 76-1544, Opinion on Petition for Rehearing issued September 6, 1977. The only material difference is that the Defendant timely objected to the hearsay testimony of the deputies and that causes us to reverse the conviction. See Laws, supra; Willis v. State, 217 So.2d 106 (Fla. 1968); Willis v. State, 208 So.2d 458 (Fla.1st DCA 1968); Johnson v. State, 249 So.2d 452 (Fla.4th DCA 1971). The Judgment and Sentence are reversed and this cause is remanded for new trial in accordance with this opinion.

REVERSED and REMANDED.

ALDERMAN, C. J., and ANSTEAD, J., concur.


text:
    DON MOTT AGENCY, INC., a Florida Corporation, Petitioner, v. Byrd PULLUM, Respondent.
    No. 77-547.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1977.
    Rehearing Denied Dec. 15, 1977.
    Richard A. Strickland of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Pe-tersburg, for petitioner.
    Christopher C. Ferguson of the Law Offices of Robert F. Nunez, St. Petersburg, for respondent.
   PER CURIAM.

The petition for writ of certiorari filed by petitioner, Don Mott Agency, Inc., is granted, and the order of the trial court granting the motions of respondent, Byrd Pullum, to quash a subpoena duces tecum and for a protective order is reversed.

Respondent Pullum did not show by a timely motion to quash that the subpoena duces tecum requested by petitioner is “unreasonable and oppressive” as required by Fla.R.Civ.P. 1.410(b) nor show by a motion for a protective order that good cause is present to limit or prohibit the discovery sought by petitioner due to “annoyance, embarrassment, oppression, or undue burden or expense” as required by Fla.R.Civ.P. 1.280(c).

REVERSED and REMANDED.

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


author: BOYER, Acting Chief Judge.

text:
    Joe W. CORDELL, George S. Taff and Hugh E. Williams, Jr., Appellants, v. WORLD INSURANCE COMPANY, Appellee.
    No. GG-399.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1977.
    Robert M. Ervin and Dean Bunch of Er-vin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellants.
    J. Marshall Conrad of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
   BOYER, Acting Chief Judge.

ON MOTION TO DISMISS

Appellee’s Motion to Dismiss this interlocutory appeal requires that we determine the propriety of an interlocutory appeal pursuant to Fla.App. Rule 4.2, as a means of reviewing dismissal by a trial court of a class action in a legal (as distinguished from equitable) action commenced pursuant to Fla.R.Civ.P. 1.220.

Appellants “on behalf of themselves and those similarly situated” sought to bring a class action against appellee, defendant in the trial court. The defendant filed a motion to dismiss which resulted in an order dismissing the complaint with prejudice but providing that the plaintiffs, in their individual capacities, could file an amended complaint within 20 days. The trial judge specifically recited that he found the complaint to fail to state a cause of action pursuant to Fla.R.Civ.P. 1.220. The plaintiffs, as appellants, filed a notice of interlocutory appeal and appellee responded with a motion to dismiss.

There is no question but that, generally speaking, the proper method of review of a final order is by plenary appeal (see Shute v. Keystone State Bank, 159 So.2d 106 (Fla. 1st DCA 1963) and that the use of the words “with prejudice” in an order of dismissal indicates finality. (Segal v. Garrigues, 320 So.2d 475 (Fla. 4th DCA 1975).

In Costin v. Hargraves, 283 So.2d 375 (Fla. 1st DCA 1973) this court entertained an interlocutory appeal instituted by the defendants in the trial court seeking review of an order of the trial judge denying the defendant’s motion for an order declaring that the declaratory judgment action commenced in the trial court could not be maintained as a class action. There is no indication in the opinion of the court that propriety of interlocutory review was there challenged.

Likewise, our sister court of the Third District in Rosenwasser v. Frager, 307 So.2d 865 (Fla. 3rd DCA 1975) entertained an interlocutory appeal from an order denying a motion to dismiss a class action commenced by condominium owners against a developer to recover compensatory and punitive damages on the ground of alleged fraudulent misrepresentation. That opinion, too, is silent as to whether there was any attack upon the appellate court’s jurisdiction.

In Imperial Towers Condominium, Inc. v. Brown, 338 So.2d 1081, 1082 (Fla. 4th DCA 1976) that court entertained an interlocutory appeal from an order finding that the cause could not be maintained as a class action and a second order dismissing an amendment to the complaint which “had the effect of precluding * * * from maintaining the action as a class action.” The action sought legal and equitable relief and was in that manner distinguishable from the case sub judice. Again, there does not appear to have been any attack upon the propriety of interlocutory review.

Sub judice it appears that the action in the trial court was legal in nature and not “such as formerly [was] cognizable in equity”. Neither does it appear that the order of dismissal here appealed could reasonably be termed a “partial summary judgment on liability”. In short, we find no category in Fla.App. Rule 4.2 in which the case sub judice may be fashioned in order to vest jurisdiction in this court.

An examination of the order here appealed reveals that although it did not finally dispose of the case, it was final as to the proposed class. As stated by this court in Shute v. Keystone Bank, supra:

“This appeal arises out of a situation which has caused confusion among the members of the bench and the bar for many years; that is, whether such a decree as confronts us here is a final decree or an interlocutory decree. Even before the adoption of the Appellate Rules, the Florida Supreme Court has held that an order dismissing a cause with prejudice is a final judgment. [Palm Shores Inv. v. Nobles, 149 Fla. 103, 5 So.2d 52 (1949).] This precedent was carried forward under the Appellate Rules, and it is now clear that an order dismissing a complaint even when leave to amend within a specific time is authorized, is an appealable final order. [Womack v. Goldberg, 117 So.2d 758 (Fla.App.3d, 1960).] However, only recently has the confusion — arising where a final order is entered against less than all defendants — been laid to rest by our sister court, the Second District Court of Appeal, in two cases which concisely hold that such ‘split’ judgments or decrees when final must be appealed or the right will be forfeited by the passage of time. [McMullen v. McMullen, 145 So.2d 568 (Fla.App.2d, 1962) and Evin R. Welch & Co. v. Johnson, 138 So.2d 390 (Fla. App.2d, 1962)].” (159 So.2d at page 107)

In Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974), the Supreme Court of Florida held that where one count of the complaint was based entirely upon tort and was separate and distinct from the other counts which were based on breach of contract, dismissal of one count was final and therefore appealable. To the same effect is an opinion of our sister court of the Fourth District rendered on a motion to dismiss an appeal in Segal v. Garrigues, supra.

We conclude, therefore, that the order entered in the case sub judice finally determined the class action status and that therefore, although the order permitted the individual plaintiffs to amend and proceed, it was nevertheless a final order from whence a plenary appeal will lie. We will not, however,' grant appellee’s motion to dismiss but will, in accordance with the procedure established in Shute v. Keystone State Bank, supra, treat the notice of interlocutory appeal as a notice of a full or plenary appeal. The appendix to appellants’ brief will be treated as a supplement to the four page record on appeal.

IT IS SO ORDERED.

MILLS and MELVIN, JJ., concur.


author: MILLS, Acting Chief Judge.

text:
    T. Hulen RAY, Appellant, v. STATE of Florida and the Honorable J. Robert Durden, Appellee.
    No. DD-408.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1977.
    Rehearing Denied Dec. 12, 1977.
    Arthur H. Gehris, III, of Elliott, Tindell & Gehris, Daytona Beach, T. Hulen Ray, Deland, for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   MILLS, Acting Chief Judge.

During a criminal trial in which attorney Ray was counsel for one of the defendants, the trial court adjudged him guilty of direct criminal contempt and sentenced him to twenty-four hours in the county jail. Ray contends the trial court erred in failing to recite in its judgment of guilt of contempt the facts upon which he was adjudicated guilty and erred in finding his conduct contemptuous. We agree and reverse.

Fla.R.Crim.P. 3.830 requires that a judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based.

The relevant portions of the judgment adjudicating Ray guilty of contempt are: . . having been admonished by

The Court on several or more occasions, outside the hearing of the jury, for his unjudieious, unethical and intemperate conduct before the court, and the said T. HULEN RAY continuing and persisting in such conduct after repeated warnings, instructions and direct orders of The Court, outside the hearing of the jury and then admonishing the said T. HULEN RAY to refrain from arguing with the Court after several court rulings, and that he defied the Court’s explicit orders to cease his professional misconduct.
“The Court finds the misconduct was not only unprofessional per se but directly contemptuous in that he repeatedly defied the Court’s specific orders; and “The Court finds that the trial of this matter has been unduly delayed by the said T. HULEN RAY, and he is in direct contempt of court. . . . ”

The judgment under attack fails to comply with Rule 3.830. It does not recite facts. It recites conclusions. What was the unjudieious, unethical and intemperate conduct of Ray? What was the continuing and persisting conduct of Ray? What warnings, instructions and direct orders did the trial court give Ray? In what way did Ray defy the trial court? What explicit orders did Ray defy? What was the unprofessional conduct of Ray? In what way did Ray unduly delay the trial? Rule 3.830 requires that the judgment set forth these facts. It did not. This was error.

Criminal contempt is a course of conduct calculated to embarrass, hinder or obstruct the court in the administration of justice, or which is calculated to lessen its authority or its dignity. Ex parte Crews, 127 Fla. 381, 173 So. 275 (Fla.1937). The power to punish for criminal contempt should be exercised cautiously and sparingly. Carroll v. State, 327 So.2d 881 (Fla.3d DCA 1976). It should not be used to avenge personal affronts but to punish assaults or aspersions upon the authority and dignity of the court. Ex parte Earman, 85 Fla. 297, 95 So. 755 (Fla.1923). As stated in Ex parte Biggers, 85 Fla. 322, 95 So. 763 (Fla.1923):

“[I]f the matter complained of as constituting contempt, when fairly interpreted, does not have a reasonable tendency to degrade or to embarrass or hinder . a judge in performing his own duty, or to affect a mind of reasonable fortitude, it is not a criminal contempt for which imprisonment may be lawfully adjudicated, particularly when an intent to offend is denied on oath.
“Generally it is the nature and reasonable tendencies of the matter complained of that controls; and, if the matter is of doubtful tendency or might or might not be considered ambiguous as to its general or specific purpose, the circumstances under which the thing was done or in which its consequences are to appear, may be considered in determining the reasonable tendency of the matter to affect judicial authority or dignity . . . .”

Although the judgment did not recite the facts upon which Ray was adjudged guilty, we gather from the record that the trial court was of the opinion that Ray argued with it on several of its rulings, attempted to delay the trial, laughed at the court, was scornful of the court, was disrespectful of the court, and directed sarcastic remarks to the court. Ray denied these accusations.

The court gave Ray an opportunity to present excusing or mitigating circumstances. Ray submitted testimony of his co-counsel, two attorneys representing other defendants, and a courtroom spectator who turned out to be a client of Ray. The sum and substance of their testimony was that Ray was not guilty of any of the court’s accusations.

The court then called as its witnesses the assistant state attorney who was trying the case for the State and two courtroom spectators who turned out to be the bailiff’s wife and the wife of the deputy who worked in the court moving prisoners. They characterized Ray’s conduct as disrespectful and sarcastic. They stated he continuously interrupted the court and laughed at the court.

In Krueger v. State, 351 So.2d 47, Opinion filed 2 August 1977 (Fla.3d DCA), the court dealt with the difficult problem of assessing from a transcript the tone and manner of a lawyer’s comment to a trial judge. There the trial judge’s characterization of the lawyer’s comment as “loud, rude, impertinent and thoroughly contemptuous” was held “not objectively supported by the record”. In contrast to Krueger, witnesses in the case before us, whose testimony could have been accepted by the trier of fact, characterized Ray’s deportment as “wild, discourteous speaking to the court, sarcasm”. Yet those characterizations appear inapplicable to the exchanges between the trial judge and Ray which are recorded in the limited transcript, one day’s proceedings in a six weeks trial, provided on this appeal. Both the trial judge and the witnesses whose testimony supports the characterizations expressed in the contempt order appear not to address Ray’s conduct as explicitly evidenced by the transcript, but rather his course of conduct throughout much of the trial. Even allowing for the inability of a cold trial transcript to record a contemptuous attitude expressed nonverbally, we find no words in the limited transcript which are susceptible to the conclusory characterizations of the trial judge and accusing witnesses.

When as here the characterizations by a trial judge and witnesses give grave cause for concern over a lawyer’s deportment, but the contempt order does not evidence particular events to which those characterizations could reasonably apply, we must agree with the court’s observation in Krueger, endorsing a California Supreme Court decision, that “such a situation invites caprice” and that our duty is to reverse. Otherwise, the independence of the bar may be compromised by the need to satisfy the personal sensibilities of the trial judge, adversary counsel, and the trial court’s support personnel who may be unsympathetic both to the client and the lawyer’s cause.

Given a contempt order which sufficiently describes the offensive events at trial, supported by observers’ testimony characterizing the accused lawyer’s tone and manner in those events, the risk of omitting the full transcript of trial proceedings would properly fall on the appellant lawyer. But where as here the limited transcript supplied is “facially neutral”, as in Krueger, and the contempt order omits reference to the particular events which were colored by the lawyer’s contemptuous manner, we cannot permit the conviction to be sustained on the strength of the generalized opinions of observers.

The judgment appealed is reversed.

SMITH and ERVIN, JJ., concur.


text:
    FLORIDA NATIONAL BANK AND TRUST COMPANY AT MIAMI, a Florida Corporation, Appellant, v. MRC MOTEL CORPORATION, a Florida Corporation, Appellee.
    No. 76-2035.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1977.
    Paige & Catlin and H. James Catlin, Jr., Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Proenza & Richman and Gary D. Fox, Miami, for appellee.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ. •
   PER CURIAM.

Affirmed. United States Rubber Products, Inc. v. Clark, 145 Fla. 631, 636-37, 200 So. 385, 388 (1941); Bruce Construction Corp. v. Federal Realty Corp., 104 Fla. 93, 100, 139 So. 209, 212 (1932); Atlanta & St. Andrews Bay Railway Co. v. Thomas, 60 Fla. 412, 422, 53 So. 510, 513 (1910); Board of Public Instruction of Dade County v. Fred Howland, Inc., 243 So.2d 221, 223 (Fla. 3d DCA 1970); Travelers Indemnity Co. v. Washington Federal Savings and Loan Ass’n of Miami Beach, 214 So.2d 492 (Fla. 3d DCA 1968).


text:
    Maureen H. SNIFFEN, Appellant, v. John M. SNIFFEN, Appellee.
    No. 76-1587.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1977.
    Rehearing Denied Dec. 15, 1977.
    Sheldon Golding, Fort Lauderdale, for appellant.
    Charles T. Whitelock, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Mr. Sniffen, age 72 at the time of trial, married Mrs. Sniffen, age 34 at the time of trial, in April 1975. They had been married previously in 1965 and divorced in 1966. The parties entered into an agreement in September 1975, wherein Mrs. Sniffen agreed to “release” to Mr. Sniffen $135,000 worth of bonds; and Mr. Sniffen agreed to give Mrs. Sniffen $115,000 worth of bonds, 1823 shares of assorted stocks, a substantial amount of cash, plus a “Deed to house to be jointly owned and in both names.” Pursuant to that understanding, Mr. Sniffen executed a deed that transferred title to the marital domicile to both parties as tenants by the entireties. On March 8, 1976, Mr. Sniffen filed a petition for dissolution of marriage. Thereafter, Mrs. Sniffen also filed a petition for dissolution of marriage. Upon the motion of Mr. Sniffen the actions were consolidated.

At trial, Mr. Sniffen contended that Mrs. Sniffen had unlawfully obtained possession of many of his shares of stock and bonds and refused to release them to him unless he executed the agreement referred to above. He contended further that the agreement of September 1975 was obtained by Mrs. Sniffen through coercion and duress, and that the marital domicile should be awarded to him.

In the final judgment appealed from the trial court found that the agreement of September 1975 was null and void on the grounds that: “said agreement lacked the requisite consideration and/or was obtained through duress or coercion.” Based on that finding the judgment provided: “[a]ll stocks and bonds with the attached coupons are to be the sole property of the Petitioner, inclusive of the Two Hundred Thousand Dollars ($200,000.00) in Bearer Bonds in the possession of the Respondent.” The judgment also found that Mr. Sniffen had a special equity in the marital home because “he has contributed diverse amounts of money towards the purchase, acquisition and/or maintainance of said property”. However, in the decretal portion of the judgment, the trial judge directed that the marital domicile be sold and that the parties equally divide the proceeds or that Mr. Sniffen could purchase Mrs. Sniffen’s one-half interest at market value.

With regard to the main appeal filed by Mrs. Sniffen, we have determined that there is adequate support in the record for the finding that the agreement of September 1975 was obtained by duress and coercion. In addition, we find no merit to Mrs. Sniffen’s other suggestions of error.

Mr. Sniffen has cross assigned as error (a) the failure of the trial court to set aside the deed creating the estate by the entire-ties; (b) the trial court’s direction that the marital home be sold and the proceeds divided between the parties; and (c) the trial court’s award of lump sum and rehabilitative alimony to Mrs. Sniffen.

It appears to us the final judgment is inconsistent in some respects. If Mr. Sniffen had a special equity in the marital domicile, then Mrs. Sniffen would not be entitled to one-half of the proceeds of the sale thereof. But in any event, the court had no authority to order a sale of said property. There was no pleading basis for partition and no agreement that the court should do so. Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974).

A further inconsistency appears in the trial court’s adjudication that the agreement of September 1975 was null and void and its refusal to set aside the deed creating the estate by the entireties. That deed was the product of the invalid agreement, and therefore it should have gone the way of the agreement.

Accordingly, Paragraph 6 of the findings portion of the final judgment finding a special equity in the husband is vacated. Paragraph 6 of the decretal part of the judgment directing a sale of the marital domicile located at 1621 Southwest 5th Street, Fort Lauderdale, Florida, is reversed. The cause is remanded to the trial court with directions that it amend the final judgment by setting aside the deed which created the estate by the entireties.

In all other respects the final judgment is affirmed.

DAUKSCH and LETTS, JJ., concur.


author: MELVIN, Judge.

text:
    DIVINE HOMES, INC., Donald L. Divine and Elizabeth Divine, husband and wife, Appellants, v. GULF POWER COMPANY, Appellee.
    No. EE-249.
    District Court of Appeal of Florida, First District.
    Nov. 10, 1977.
    Rehearing Denied Dec. 16, 1977.
    Steven J. Baker of Hosner, Taylor & Van Matre, Pensacola, for appellants.
    Robert P. Gaines of Beggs & Lane, Pensacola, for appellee.
   MELVIN, Judge.

Appellant-defendant appeals from a final judgment of foreclosure of an equitable lien based upon the pleadings. The parties will be noted here as they were in the trial court.

Gulf Power Company alleged that defendant Divine Homes, Inc. contracted with it to install an underground electrical distribution system on defendant’s Wilde Lake Estates subdivision for partial reimbursement of costs in the sum of $4,750. Gulf Power performed in obedience to the parties’ written contract. Instead of paying the agreed installation costs when due, Divine Homes, Inc. transferred to innocent purchasers, without notice, all, save lot 19, of the subdivision lots, and then defendant conveyed that lot to its president, Donald L. Divine and Elizabeth Divine, who are also defendants. The final judgment charged lot 19 with an equitable lien for the total sum due Gulf Power Company for its improvement that was of benefit to all of the subdivision lots.

Defendants admit all material allegations of the complaint but urge reversal, contending that: 1) the complaint fails to state a cause of action in that the contract fails to charge the property as security, and fails to allege non-existence of an adequate remedy at law, 2) absence of a promise to pay by individual defendants defeats equitable lien claim, and 3) the court erred in imposing upon lot 19 the totality of the lien claim.

One may be entitled to an equitable lien without meeting the requirements of the mechanic’s lien statute. O. H. Thomason Builders’ Supplies, Inc. v. Goodwin, 152 So.2d 797 (Fla. 1st DCA 1963), and Crane Co. v. Fine, 221 So.2d 145 (Fla.1969). The right to impress and foreclose an equitable lien is not limited to one particular set of circumstances. It may arise from any combination of facts and circumstances, the totality of which establish a right of a special nature to charge realty with improvement costs. Such rights may be based, among others, upon a written contract that evinces a purpose to charge the subject property for such costs, or equity may declare the existence of such lien upon equating basic concepts of that which is right and just, in the light of the relationship of the parties and all the circumstances of their contracts and dealings. See Imler Earthmovers, Inc. v. Schatten, 240 So.2d 76 (Fla. 1st DCA 1970) and cases therein cited.

Equity will not slumber while that which is wrong takes the place of that which is right. Having parted title with all, save lot 19, of the lots that should be held to answer for plaintiffs claim, such claim may not be defeated by the subterfuge of corporate conveyance of lot 19 to its president and to his wife, as individuals. In equity such title in them must be considered burdened with the total debt for the improvement lien.

The judgment appealed from is

AFFIRMED.

McCORD, C. J., and BOYER, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    Rupert BROWN, Appellant, v. LEE COUNTY MOSQUITO CONTROL DISTRICT and Chicago Insurance Company, Appellees.
    No. 76-1603.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1977.
    Rehearing Denied Dec. 14, 1977.

      B. Clarke Nichols of Vega, Brown & Nichols, Naples, for appellant.
    James B. Denman, III, of James V. Dolan and Associates, Fort Lauderdale, for appel-lee Chicago Ins. Co.
   HOBSON, Acting Chief Judge.

Brown, plaintiff below, appeals from summary judgment in favor of Chicago Insurance Company (Insurer) on the issue of coverage. The court below ruled that the Aircraft Hull and Liability Insurance Policy and the Airport Owners and Operators Liability Insurance Policy issued to the Lee County Mosquito Control District (District) did not cover damages caused by the mosquito spraying operations of District over land leased by Brown. Brown argues that the exclusion in the Aircraft Hull and Liability Policy did not apply. We disagree and affirm in part. Brown also argues that the Airport Owners and Operators Liability policy did apply to the land leased by Brown and that the exclusions do not apply. We agree and reverse in part.

No testimony was taken concerning the conduct giving rise to Brown’s claim. The facts are taken from Brown’s second amended complaint. District, in pursuit of its function to control mosquito populations in Lee County, caused an excessive amount of pesticide and a large amount of fuel oil to be sprayed over the land leased by Brown for the grazing of Brown’s cattle. While grazing, Brown’s cattle consumed sufficient amounts of the substances to contract pneumonia and die. Brown filed suit against District, and, alleging the existence of the two policies mentioned above, joined Insurer as a defendant. In due course, Insurer filed a motion for summary judgment in its favor on the issue of coverage. The motion was granted.

The Aircraft Hull and Liability Policy excluded coverage of the damage occurring “[w]hile the Aircraft is being used for or in connection with any race, speed or endurance test, any attempt at record breaking, acrobatic flying, crop dusting, spraying, seeding, fertilization, hunting, bird or fowl herding. . . . ” Brown asks this court to read the phrase “crop dusting, spraying, seeding, fertilization” as a single and separate class, that is, as “crop dusting, crop spraying, crop seeding, crop fertilization.” This would restrict the exclusion so as to allow coverage of damages resulting from mosquito spraying. This we cannot do. While the court is cognizant of the general rule of construction of insurance contracts against the insurer-draftsman and in favor of coverage, there is room for construction only where there is some ambiguity in the terms. Craine v. Gee, 276 So.2d 521 (Fla.2d DCA 1973). Where the language is unambiguous, it must be given its fair and natural meaning. Reliance Mutual Life Insurance Co. of Ill. v. Booher, 166 So.2d 222 (Fla.2d DCA 1964). We note the absence of a conjunctive or disjunctive article between the words “crop dusting” and the word “spraying.” We note that other activities included in the exclusion provision’s list have no relation to crops or agriculture. We note also that the policy was issued to cover aircraft used by District in connection with its mosquito spraying operations. To give the word “spraying” the meaning Brown suggests would be to construe the term out of the contract with respect to District’s obvious operations. The only fair and reasonable construction of the term allows the exclusion for mosquito spraying operations. The trial court was correct in granting summary judgment against Brown’s claim under this policy.

The trial court also ruled that, as a matter of law, the Airport Owners and Operators Liability Policy did not cover Brown’s claim. Insurer argues, in support of this ruling, to the effect that the land leased by Brown is not part of the premises covered by the policy. Insurer correctly observes that the policy covers damage in or about the premises specified in the policy and that it is not disputed that the land leased by Brown is not within the specified premises. However, this policy also covers damage “elsewhere in the course of any work or of the performance of any duties carried out by the Insured or his employees in connection with the business or operation specified in the Declarations.” The “business or operation specified” is the Lee County Mosquito Control District whose spraying operations obviously were performed over, and affected, the lands of others. These lands included that leased by Brown. Unless an exclusion applies, the policy covers the damages upon the land leased by Brown because it was “elsewhere in the course of District’s performance.”

Insurer also argues that an exclusion applies. The only pertinent exclusion denies coverage for damage “caused by . any Ships, Vessels, Craft, or Aircraft owned, chartered, used, or operated by or on account of the Insured. . . . ” Brown urges that this exclusion applies to damages actually caused by the aircraft itself (as by collision) as distinguished from damages resulting from the proper operation of the aircraft for a wrongfully conducted activity. Insurer responds that this construction of the exclusion is much too narrow. As with the prior discussed exclusion, we examine what the exclusion says, what it does not say, and the nature of the business insured. Firstly, the exclusion denied coverage for “damages caused by” the aircraft. Secondly, the exclusion does not deny coverage for “damages arising out of the ownership, maintenance or use” of the aircraft. Lastly, operation of the aircraft in spraying is important to District’s mosquito control function. An insurance policy covering District’s activities should not be read to exclude coverage for one of those activities unless such an exclusion is clearly manifested in the policy. The exclusion in this policy does not clearly exclude coverage under the facts of this case. We agree with Brown’s interpretation of the language used in the subject exclusion. The trial court erred in ruling that Brown’s claim was not covered by the Airport Owners and Operators Liability Policy.

The order of the trial court granting Insurer’s motion for summary judgment is affirmed as to the claim under the Aircraft Hull and Liability Policy, and reversed as to the claim under the Airport Owners and Operators Liability Policy. The case is remanded for further proceedings consistent with this opinion.

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

      . It is clear from a careful reading of the exclusionary provision that the language “owned, chartered, used, operated by or on account of the Insured” is used only to define the included aircraft and not to exclude activities.

      . The effect of this difference in terminology is carefully analyzed in St. Paul Fire & Marine Insurance Co. v. Thomas, 273 So.2d 117 (Fla. 4th DCA 1973).