author: McNULTY, Chief Judge.

text:
    Salvatore DiGIOVANNI, Appellant, v. ALL-PRO GOLF, INC. and John R. Peterson, Appellees.
    No. 75-599.
    District Court of Appeal of Florida, Second District.
    May 12, 1976.
    Rehearing Denied June 2, 1976.

      Wayne Floyd, Wilson, Wilson & O’Con-nell, Sarasota, for appellant.
    Charles J. Cheves, Jr., Cheves & Hazen, Venice, for appellees.
   McNULTY, Chief Judge.

Appellant Salvatore DiGiovanni brings this interlocutory appeal from an order dismissing with prejudice, as sham, his counterclaim to an action brought by appellees, All-Pro Golf, Inc. and John Peterson. He also appeals the vacating of a previous order requiring appellee Peterson, as President of All-Pro Golf, Inc., to produce the financial and business records of the corporation. We reverse.

In 1973, appellee Peterson, a golf professional, and one Belfiore entered into an agreement launching All-Pro Golf, Inc. which operated a golf" shop and driving range in Sarasota, Florida. Belfiore, for consideration, secured financing for the venture but did not receive any of its capital stock. Appellant DiGiovanni received twenty-five (25%) percent of the stock in exchange for a $5,000 contribution to capital and appellee Peterson received the remaining seventy-five (75%) percent. One Lavarini, Belfiore’s personal secretary, had made several cash advances to Peterson prior to incorporation. All four named participants were made directors of the corporation and a fifth director never became involved in this controversy.

A number of written agreements were executed by the parties in conjunction with the incorporation of the business venture. One of these was a stock pledge agreement which provided that Peterson and the appellant would deposit their stock certificates as security for a $35,000 bank loan initially obtained through, and subsequently assumed by, Belfiore; but apparently the stock certificates were never delivered. The pledge agreement further provided that Belfiore was entitled to sell any of the pledged securities upon failure of All-Pro Golf to repay its indebtedness when due or in the event of a conflict of interest arising between Belfiore and DiGiovanni. Additionally, Belfiore as trustee of a voting trust held the voting rights to all the stock of the corporation.

During 1974, Belfiore and Lavarini became dissatisfied with Peterson’s management of the business and decided to call a shareholder’s meeting to unseat Peterson. DiGiovanni was informed of the decision and signed his name to a notice of the meeting and to a demand for corporate records. Peterson then filed this suit for injunctive relief and, thereafter, Belfiore caused an answer to be filed together with three counterclaims on behalf, respectively, of himself, DiGiovanni and Lavarini. The record confirms that Bel-fiore’s attorney filed all of the pleadings and DiGiovanni admitted in his deposition that he merely acquiesced in the proceedings. In short, it is undisputed that Bel-fiore was “calling the shots” and that he and Peterson are the principal protagonists herein.

DiGiovanni’s stricken counterclaim was in the nature of a stockholder’s derivative suit by which it was sought to bring Peterson, as President and general manager of the corporation, to account for suspected mismanagement. The motion to strike it as sham was based on the fact that Bel-fiore, who lacked standing as a stockholder, was the real instigator thereof without DiGiovanni’s prior knowledge. Additionally, Peterson and the corporation contended that the derivative suit was superfluous or moot because Belfiore had the right to foreclose on DiGiovanni’s stock under the terms of the pledge agreement. The trial court agreed; and the order appealed from expressly stated that it was based on a consideration of DiGiovanni’s deposition, there being no evidence presented in rebuttal. A prior order requiring the plaintiffs to produce the corporate records was vacated too because of its connection with the now defunct derivative suit; and this latter provision forms the second point on this appeal.

As a prologue, we record that during the pendency of the instant appeal this court was notified that All-Pro Golf, Inc. had been adjudicated bankrupt. We received a copy of an order of the United States District Court for the Middle District of Florida providing for an automatic stay of certain state court proceedings. Thus a preliminary question before us is whether the order of the United States District Court automatically stays this appeal. We think not.

A bankruptcy petition operates as an automatic stay only where the pending state proceeding is founded upon an unsecured provable debt dischargeable under the Bankruptcy Act or is an action against property either in the custody of the Bankruptcy Court or recoverable by the Trustee in Bankruptcy. Clearly the appellant’s counterclaim, a stockholder’s derivative suit, is not within the ambit of these rules.

Proceeding now to the first of the two issues raised by appellant, we hold that the lower court erred in dismissing the appellant’s counterclaim as sham for several reasons. First of all, a motion to dismiss as sham should be granted only upon the convergence of two factors: the absence of any genuine issues of material fact, and a pleading good on the surface but set up in bad faith. Admittedly, Di-Giovanni’s deposition, which was evidently the only source of evidence considered by the trial court, provides little if any factual support for the allegations of mismanagement set forth in the appellant’s counterclaim. But there were other depositions in the court file at the time the motion to strike was heard which the lower court should have considered. For instance, Lavarini, who disbursed the proceeds of the $35,000 loan to the corporation, stated in her deposition that she examined the corporate books for August 1974 and could find no accounts payable book nor could she find any accounting whatsoever of the appellant’s contribution to capital. She also observed entries for expenditures which she considered improper or extravagant. Additionally, Peterson admitted in his filed deposition to a lack of familiarity with such details as the amount of aggregate indebtedness of the corporation, the amount of interest payable on outstanding loans, the balance in the corporate checking account and whether the company had made or lost money since its inception. In short, there was sufficient support in the total record to give color to the appellant’s claims of mismanagement and breach of fiduciary-duties on the part of Peterson.

We are unperturbed by the fact that DiGiovanni, personally, did not have any direct knowledge of specific acts of corporate waste or mismanagement prior to the filing of his counterclaim. Clearly, the real party in interest in a stockholder’s derivative suit is the corporation, not the stockholder; so DiGiovanni is simply the “relator” of the corporation in such an action. The source of the information on which the suit is founded is thus of no import. The only requisites for DiGiovanni’s standing to bring a stockholders’ derivative action in Florida were met in this case: viz., he was a stockholder, both at the time his counterclaim was filed, and during the time the alleged acts of mismanagement occurred. We know of no rule requiring that a complaining stockholder must have conceived all by himself the notion to bring a derivative suit. Moreover, we are equally untroubled by the fact that Belfiore was the impetus behind De-Giovanni’s counterclaim. It is enough that the latter acquiesced in the suit, as evidenced by his vigorous appearances in connection therewith and by his diligent prosecution of this appeal.

Lastly, we can find no merit in ap-pellees’ contention that DiGiovanni’s suit would necessarily be mooted by Belfiore’s counterclaim to enforce the stock pledge agreement. Delivery of his stock certificate to Belfiore, pursuant to the pledge agreement, would not divest DeGiovanni of his ownership of the stock nor would Belfiore’s “foreclosure” thereof necessarily divest DiGiovanni of his rights of redemption ; hence, DiGiovanni would still have standing to prosecute his counterclaim. Furthermore, Belfiore had the right to foreclose selectively, thus a sale or foreclosure of Peterson’s stock would not automatically operate as against DiGiovanni’s shares. DiGiovanni’s counterclaim states a cause of action and should remain viable.

We turn now to the second question raised in this appeal, i. e., whether or not the lower court erred in vacating its prior order compelling Peterson to produce the corporate records for appellant’s inspection. Since this order was tied to the court’s dismissal of DiGiovanni’s counterclaim, we need not reach the question of his rights of inspection independent of this lawsuit. The issue of inspection will, we are sure, be revisited within the context of discovery upon the reinstatement of the appellant’s counterclaim.

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

Reversed.

HOBSON and SCHEB, JJ., concur.

      . Rules of Bankruptcy Procedure, 11 U.S.C. § 29, Rules 401 and 601.

      . See Guaranty Life Insurance Co. of Florida v. Hall Bros. Press, Inc. (1939), 138 Fla. 176, 189 So. 243; Meadows v. Edwards (Fla.1955) 82 So.2d 733.

        .See 1.510(e), R.C.P.

      . See Koster v. Lumberman’s Mutual Casualty Co. (1947), 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067; Citizens National Bank v. Peters (Fla.App.2d, 1965), 175 So.2d 54; Nelson v. Miller (Fla.App.3d, 1968), 212 So.2d 66.

      . See Section 608.131, F.S.1973. Indeed, now, under the new Florida General Corporation Act, effective January 1, 1976, one need not even be a stockholder at the time of filing a derivative suit so long as he was one at the time of the transaction complained of. See § 607.147, F.S.1975.

      . See Uniform Commercial Code § 679.504, F.S.1973, re: enforcement or “foreclosure” under a pledge agreement.

      . See, however, § 607.157, F.S.1975.


source: Caselaw Access Project

author: BOYER, Chief Judge.

license: Public Domain

text:
    M. Vincent PROTHEROE, Appellant, v. Marcia D. PROTHEROE, Appellee.
    No. Y-438.
    District Court of Appeal of Florida, First District.
    May 18, 1976.
    S. Gordon Blalock, Blalock, Holbrook, Lewis, Paul & Isaac, Jacksonville, for appellant.
    Gordon H. Lee and Arthur T. Boone, Jacksonville, for appellee.
   BOYER, Chief Judge.

This appeal involves a continuing controversy involving an alimony award and modification.

In October of 1971, the parties filed in a then pending dissolution case a stipulation and agreement which provided, inter alia:

“The wife will receive from the husband the sum of * * * $325.00 per month alimony. * * * Alimony payments shall cease upon death or remarriage. * * * ”

A final judgment of dissolution of marriage thereafter entered provided that:

“The husband shall pay to the wife * * alimony in the sum of $325.00 per month, commencing November 1, 1971.”

In March of 1973, the husband, appellant here, filed a petition seeking modification of the alimony provision in which he alleged that the wife, appellee here, had had sufficient time to rehabilitate herself, was able-bodied, intelligent and experienced and able to earn her own livelihood but that she chose instead “to live off the alimony being paid by the husband”. An order modifying the final judgment was entered by the trial court on May 23, 1973, in which he found that the husband’s circumstances had not changed for the worst since entry of the final judgment and that, as to the circumstances of the wife, such were “more changes in the social and cultural climate of society than in the individual circumstances of the two parties.” The final judgment was modified to provide for alimony in the sum of $325.00 per month through May 1, 1974.

Upon appeal to this Court (Protheroe v. Protheroe, Fla.App. 1st 1974, 300 So.2d 748), we said:

“The Final Decree fixing the alimony payments was based upon a stipulation between the parties, dated October 18, 1971. In the case, sub judice, the evidence from both parties was to the effect that the wife’s expenses for her and their minor son, were about the same as they were when the stipulation was entered into, except for cost of living increase, and that the husband’s income was about the same. The only difference in the status of the parties is that the husband had remarried a lady with two minor children from a previous marriage.
“We agree that the trial court had the legal authority to modify the Final Decree and to reduce the alimony payments, but by the time the orderly process of this appeal had reached this point, and because we are somewhat reluctant to grant such relief so quickly when the final decree was based on a stipulation and admittedly without any change in financial circumstances, we are of the opinion that, taking the record as a whole, that the trial court was in error in cutting off the alimony at the date of May 1, 1974. We, therefore, reverse and remand to the trial court for an order phasing out the alimony at the end of three years from May 1, 1973, which would give the appellant ample time to prepare herself for making a living.”

(300 So.2d 748)

The Supreme Court of Florida, upon granting certiorari, said:

“The Opinion of the District Court of Appeal is quashed to the extent that it affirms modification of an alimony award without a showing of changed circumstances. * * * ” (Protheroe v. Protheroe, Sup.Ct.Fla.1976, 328 So.2d 417, Opinion filed March 3, 1976)

It is clear from the foregoing that the Supreme Court’s quashal of this Court’s opinion had the effect of rendering for naught the order of the trial judge dated May 23, 1973, modifying the final judgment by limiting the period of the alimony award. In other words, the final judgment of dissolution of marriage remained in full force and effect unless and until properly modified by some order or proceeding other than the trial court’s order of May 23, 1973, above mentioned.

In the meantime, the Supreme Court of Florida, by an undated order which appears to have been entered in March of 1975, pursuant to an appropriate petition or motion, said:

“The trial court may hear and enter an appropriate order on such change of circumstances that have occurred subsequent to the order heretofore entered and now on appeal in this Court.”

The order referred to as “now on appeal in this Court” was obviously the trial court’s order of May 23, 1973, which was the subject matter of the opinion of this Court which was ultimately quashed by the Supreme Court.

Pursuant to the Supreme Court’s Order, but prior to that Court’s ultimate opinion quashing the opinion of this Court, the trial court, attempting to reconcile its position and comply with the directions of both courts, entered an order dated April 29, 1975, pertinent portions of which we now quote:

“From the testimony given by the former husband and the former wife at that hearing, the following facts appear: The former wife, who was earning nothing when the final judgment was entered October 20, 1971, and when the order modifying the final judgment was entered May 23, 1973, obtained full-time employment December 10, 1973; has had three pay raises since; is now a secretary earning $600 gross per month or $102.08 net per week. The former husband, who was earning an average $36518 gross per year when the final judgment and the order modifying the final judgment were entered, voluntarily changed to a new job November 6, 1973, hoping eventually to better himself; since then he has been earning $27700 gross per year. The child, who was nine years old when the final judgment was entered, is now 13 years old; is now attending a private school at an annual expense of $775 instead of the free public schools he attended until the last two school years. Those are the changed circumstances.
“When this trial court entered the order of May 23, 1973, modifying the final judgment by eliminating the $325 per month alimony one year later, it seemed to this trial court that within that one year the former wife would be able ‘to equip herself, emotionally and by undergoing training if she so desires, to hold a job for pay.’ Subsequent events have proved that prediction to he correct: indeed, the former wife got a full-time job within seven months, has had three pay raises since, now earns $600 gross per month of $102.08 new per week. Had the alimony terminated five months after she went to work, as this trial court ordered, she would have had equitable treatment.
“Except for the Supreme Court’s admonition in its order of March 24, 1975, that this trial court is ‘to enter an appropriate order on such change of circumstances that have occurred subsequent to the order heretofore entered [by this trial court modifying the final judgment on May 23, 1973] and now on appeal in this Court’, this trial court would of course not to be so presumptuous as to express the view that an appropriate disposition of the alimony matter, if it were now possible to do so, would be to terminate the alimony retroactively at the end of May 1974, as this trial court ordered, rather than to continue it on for two more years through May 1976 as the First District Court of Appeal decided. It is, of course, not possible to terminate alimony retroactively, because the former wife has a vested right to alimony payments already accrued. So the alimony should come to an end with the May 1, 1975, payment.
“How to accomplish that result in the present posture of this case perplexes this trial court. The order entered by this trial court on May 23, 1973, terminates the alimony as the end of May 1974; if that order still stands there is no need for this trial court to enter another order saying the same thing. That order probably does not still stand, although the First District Court of Appeal, while characterizing its function as including a ‘grant [of] relief,’ did not itself proceed to modify the final judgment but in its penultimate sentence said ‘We, therefore, reverse and remand to the trial court for an order phasing out the alimony at the end of three years from May 1, 1973, which would give the appellant ample time to prepare herself for making a living.’ Because a certiorari proceeding is pending in the Supreme Court, this trial court has not yet entered the order mandated by the First District Court of Appeal. How can this trial court now enter an order modifying the final judgment by simply cutting off the extra two years alimony or the one year of alimony yet unpaid?
“The practical way to accomplish what the Supreme Court instructed this trial court to do, while at the same time paying due respect to the directions of the First District Court of Appeal, seems to be for this trial court to enter the sort of order that follows in paragraph 1.
“Rather obviously, neither the changed circumstances since the order of May 23, 1973, was entered by this trial court (which is all the Supreme Court instructed this trial court to consider), nor the earlier changed circumstances since the final judgment was entered on October 20, 1971, call for any reduction in child support to be paid by the former husband. True, the former husband now earns nearly 25% less gross than he did when that order and that final judgment were entered. But the child is now 13 years old instead of 11 or 9, with greater needs. And double-digit inflation is just as cruel to the child as to his father, so that $325 a month does not buy for the child what it did two years ago or four years ago. Private school is not a necessity, but all the child’s necessities cost more. The child cannot be said to have impliedly joined in the former husband’s gamble in changing jobs.
“It is, therefore, ORDERED that:
“1. Sub-paragraph (a) of paragraph 2 of the final judgment is, as directed by the First District Court óf Appeal, mod-fied to read:
“(a) Alimony in the sum of $325.00 per month, continuing through May 1, 1976.
“and, in the light of changed circumstances since May 23, 1973, that sub-paragraph (a) of paragraph 2 of the final judgment is deleted effective May 2, 1975, the net effect being that M. Vincent Protheroe is liable for the payment of such alimony through May 1, 1975.”

The husband has now appealed the above quoted order complaining of that portion stating:

“ * * * It is, of course, not possible to terminate alimony retroactively, because the former wife has a vested right to alimony payments already accrued. So the alimony should come to an end with the May 1, 1975, payment.”

Appellant argues that appellee’s right to the payments which had accrued prior to the order here appealed had not become vested and that since the evidence revealed that the wife had secured employment as of December 10, 1973, there was no reason to extend the payments of alimony beyond May 1, 1974, being the cut off date provided in the trial court’s order of May 23, 1973, hereinabove referred to.

We are forced to disagree with appellant’s contention. As above explained, the order of May 23, 1973 was rendered inoperative by virtue of the decision of the Supreme Court quashing the opinion of this Court. Appellee’s rights to accrued payments therefore vested until entry of the order here appealed on April 29, 1975.

AFFIRMED.

RAWLS and McCORD, JJ., concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Robert HOUGH et al., Appellees.
    Nos. 74-1577 to 74-1580.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.

      Richard E. Gerstein, State Atty. and Edward Carhart, Asst. State Atty., for appellant.
    Beckham & McAliley, Jepeway & Gassen, Garber & Buoniconti, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

The State of Florida seeks reversal of an order dismissing indictments for (1) conspiracy to solicit bribes, and (2) soliciting bribes and discharging the defendants. A review of the record presents the following involved legal skirmishes:

Edward J. Connell, City Manager of North Miami, was indicted for allegedly having accepted a bribe in connection with a bid to build tennis courts at Pepper Park. Prior to this trial, defendant-appellees herein, Robert Hough, Anthony DeLucca and William Valentine, then City of North Miami Councilmen, were subpoenaed to appear at the State Attorney’s office to give testimony concerning the Pepper Park project. Valentine and Hough also testified at Connell’s first trial which ended in a mistrial. Connell eventually pleaded guilty and agreed to testify as to his knowledge of public corruption in North Miami. Thereafter, on March 28, 1973 Hough, De-Lucca and Valentine were indicted for (1) conspiracy to solicit bribes, and (2) soliciting bribes in connection with contracts for work to be done at the Sans Souci Tennis Complex (Case No. 73-2513) and Pepper Park (Case No. 73-2514). On April 3, 1973 Hough and DeLucca were indicted on the same charges with regards to contracts for extending the storm sewer system in the City (Case No. 73-2692) and the furnishing of water and sewer facilities for Interama (Case No. 73-2693). Defendants filed motions to dismiss on the ground, inter alia, of being immunized from prosecution on these charges pursuant to § 914.-04, Fla.Stat., F.S.A. The trial judge in June 1973 denied these motions based upon his finding that although each defendant, after being subpoenaed by the State, furnished to the prosecution information which constitutes a link in the chain of evidence necessary to sustain a conviction in the instant case, this information was not incriminating in of itself. Defendants then petitioned the Florida Supreme Court for a writ of mandamus, and on September 13, 1973 the Supreme Court issued a rule to show cause why mandamus should not issue. Following this rule to show cause, the Supreme Court on November 9 issued a supplemental writ commanding the trial judge to hold an evidentiary hearing to determine whether there was sufficient independent unrelated evidence to justify prosecution and in the absence of such evidence to dismiss the charges. Upon the defendants’ motion to vacate and motion for reconsideration directed to the November 9 supplemental writ, the Supreme Court issued an opinion clarifying the writ wherein it set out guidelines for the trial judge to follow (287 So.2d 282). In accordance with the mandate of the Supreme Court, an evidentiary hearing was held by the trial judge who entered the following order on April 2, 1974:

“FINDINGS OF FACT
“The court finds as matters of fact that:
“a. The defendants were each subpoenaed and, pursuant thereto, did appear under compulsion of said subpoenas, on two separate occasions, before assistant state attorneys in connection with the prosecution of Edward Connell for alleged bribery offenses committed while Connell was the City Manager of the City of North Miami.
“b. While the defendants at no time were placed under oath by the assistant state attorneys on these two occasions, they freely and fully responded to all inquiries propounded by assistant state attorneys concerning the processes involved in soliciting bids upon contracts in the City of North Miami, the processes involved in awarding contracts in the City of North Miami, the functions of the City Council on the one hand and the City Manager on the other hand insofar as contractual negotiations were concerned in the City of North Miami and, specifically, the ‘Pepper Park’ and ‘Sans Souci’ projects (the latter two projects being the subject matter of the charges in Case Nos. 73-2514 and 73-2513 respectively).
“c. Additionally, defendants Hough and Valentine testified before a court and jury, under oath, after being subpoenaed by the State, as to the same ‘transaction, matter or thing’ now encompassed in the charges lodged against them in Case No. 73-2514.
“d. Without Edward Connell’s testimony, the State concedes .it could not prove the material allegations of the charges against the respective defendants.
“e. The State concedes that Edward Connell gave diametrically opposed testimony under oath, on two separate occasions, when questioned about material allegations concerning bribery or the transfer of money.
“This Court does not condone the procedure utilized by the assistant state attorneys in calling these defendants in, under subpoena, and eliciting information from them without placing the defendants under oath. Nevertheless, the Court does not believe that immunity attaches under Florida Statute § 914.04 for any information thus obtained. It is the opinion of this Court that an oath is required in order to activate the immunity provisions of said statute. But for this Court’s interpretation of the law in this respect, this Court would declare that all three defendants received transactional immunity from prosecution for the charges lodged against them in Case Nos. 73-2513 and 73-2514. This Court feels, however, that it is precluded by the mandate from the Florida Supreme Court from making any determination as to the Legislative intent behind said statute.
“It is the opinion of the Court that testimony of Edward Connell is perjurious in nature and unworthy of belief.
“It is the further opinion of the Court, however, that in deciding whether there is ‘sufficient independent evidence to justify prosecution,’ this Court does not have the power to make a determination as to the credibility of the witness Edward Connell; that determination is for the finder of fact. But for this Court’s determination that it cannot consider credibility in determining whether there is ‘sufficient independent evidence to justify prosecution’ of these defendants, the Court would dismiss all of the charges against all of the defendants on the grounds that such evidence does not exist:
“Based upon the above findings of fact, and solely because of the Court’s interpretation of the mandate from the Supreme Court and the applicable law as stated above, it is
“ORDERED AND ADJUDGED”
“1. The charges in Case No. 73-2514 should be and are hereby dismissed as to the defendants Hough and Valentine, said defendants having been granted transactional immunity as to such charges.
“2. The testimony of the defendants Hough and Valentine, given in open court in the case of State v. Connell and Williams (Case No. 72-4703) is protected by use immunity, and neither said testimony nor any evidence obtained as a result thereof shall be received in evidence against the said defendants.
“3. Sufficient independent evidence does exist to justify prosecution of the defendant DeLucca in all pending cases, of defendant Valentine in Case No. 73-2513, and of defendant Hough in Case Nos. 73-2513, 73-2692 and 73-2693.”

After entry of this order, the defendants petitioned the Supreme Court which on ■ October 3, 1974 issued the following alternative writ of mandamus: ■

*: ‡ * ‡ * >j<
“WHEREAS, the Court has directed that Supplemental Writ issue,
“NOW, THEREFORE, this is to command you, the Honorable David Popper, as Judge of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, to enter an Order dismissing the indictments against petitioners in the Circuit . Court of the Eleventh Judicial Circuit in and for Dade County, Florida, or show cause on or before October 23, 1974, why writ of mandamus should not issue as prayed.”

On October 21 a hearing pursuant to this writ was held and at the conclusion, the judge entered an order dismissing all the indictments and discharging the defendants. The State appeals.

The Supreme Court’s October 3 mandate commanding the trial court to dismiss the indictments or to show cause why the writ of madamus should not issue presupposes an evidentiary hearing before the trial court at which the burden is upon the State to show why the indictments should not be dismissed. In the case at bar, the State having filed only an unsupported motion directed to the October 3 alternative writ of mandamus and no record of the proceedings of the October 21 hearing being transcribed and furnished to this court — no showing has been made that the trial court erred in complying with the mandate of the Supreme Court. See Constantino v. State, Fla.App. 1969, 224 So.2d 341; Royal Flair, Inc. v. Cape Coral Bank, Fla.App.1971, 251 So.2d 895; Hall v. State, Fla.App.1975, 309 So.2d 248; Montalvo v. State, Fla.App.3d 1975, 323 So.2d 674.

Affirmed.

      . “914.04 Witnesses; person not excused from testifying in certain prosecutions on ground testimony might incriminate him ; immunity from prosecution
      “No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, state attorney, or county solicitor, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon' the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.”


text:
    CONSOLIDATED MUTUAL INSURANCE COMPANY, Appellant, v. HAMPTON SHOPS, INC., Appellee.
    No. 75-1064.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.

      Leland E. Stansell, Jr. and Robert A. Glassman, Miami, for appellant.
    Whitman & Wolfe, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Consolidated Mutual Insurance Company, defendant in the trial court, appeals from a final judgment for plaintiff, Hampton Shops, Inc., following a non-jury trial involving an insurance claim by Hampton for damages resulting from a fire at its furniture manufacturing plant.

Hampton filed a claim for damages to machinery and lumber in the process of manufacture and assembly, seeking damages in the amount of $91,000. Liability is admitted, but Consolidated Mutual contended that the damages were minimal and offered approximately $3,000 in settlement. Suit was filed, and the action proceeded to trial, culminated in a judgment for the plaintiff in the amount of $31,476.-25 plus attorneys fees and costs, and this appeal ensued.

Consolidated Mutual contends that the trial court erred in refusing to permit one of the defendant’s witnesses to testify as an expert, and in entering a judgment for damages against the manifest weight of the evidence. The other points raised on appeal are without merit and will not be discussed in this opinion.

The qualifications of the witness in question include that he is an insurance adjuster specializing in fire and property damage; he has investigated losses on machinery due to fire and water; he was a machine repairman for four years in the service; and he was “brought up and raised around tool and die manufacturing” since his father owned a tool and die shop. He admittedly was not an expert as to wood. The trial court refused to permit this witness to qualify as an expert. The following principles of law governing admission of expert testimony are set out in Myers v. Korbly, Fla.App.1958, 103 So.2d 215, 222, and cases cited therein. When a witness is offered as an expert or .skilled witness, it is for the trial court to determine whether or not he has been shown to possess the requisite qualifications and special knowledge to authorize his testimony. This is a question of fact to be determined from testimony bearing on that question and the decision of the trial court with respect thereto is conclusive unless it appears to have been in error. The trial court’s decision is entitled to great weight in the appellate court because of the superior advantages possessed by the trial judge who hears the testimony and observes the witnesses, and his decision will not be pronounced error unless clearly so. Also see Seaboard Air Line Railroad Company v. Lake Region Packing Association, Fla.App.1968, 211 So.2d 25, 31. From the record, it is clear that the trial judge did not abuse her discretion in refusing to allow the witness to testify as an expert following the proffer of his testimony.

The point raised by Consolidated Mutual that the court erred in entering its judgment against the manifest weight of the evidence is not tenable. The record demonstrates that there was evidence adduced to the effect that the plaintiff’s loss was in excess of $90,000. We find that there was competent substantial evidence to support the judgment awarded.

Affirmed.


text:
    Lloyd CAMPBELL, Appellant, v. Sara CAMPBELL, Appellee.
    No. 75-1654.
    District Court of Appeal of Florida, Third District.
    March 9, 1976.
    Rehearing Denied June 2, 1976.
    Carl M. Lambert, Miami, for appellant.
    Milton M. Ferrell, Miami, for appellee.
    Before BARKDULL, C. J., and HEN-DRY and HAVERFIELD, JJ.
   PER CURIAM.

Affirmed. See § 59.041 Fla.Stat. F.S.A.


author: MILLS, Judge.

text:
    R. Ivan SUMNER and Marian Sumner, his wife, Appellants (Plaintiffs), v. INVESTMENT MORTGAGE COMPANY OF FLORIDA, a Florida Corporation, Appellee (Defendant).
    No. X-434.
    District Court of Appeal of Florida, First District.
    May 12, 1976.
    Rehearing Denied June 11, 1976.

      Jerome M. Novey, of Novey & Blanton, Tallahassee, for appellants.
    Lawrence Renfroe, Tallahassee, for ap-pellee.
   MILLS, Judge.

Plaintiffs appeal from an adverse final judgment entered by the trial court following a nonjury trial in a usury case.

Although plaintiffs raise several issues, the determinative issue is whether the trial court erred in finding that at the time of a loan to plaintiffs the defendant did not have a corrupt intent to knowingly and willfully charge and receive an unlawful rate of interest.

The defendant, Investment Mortgage Company of Florida, is the lender. Service Mortgage Brokers, Inc., a subsidiary of Investment, is the broker. Service was incorporated to broker loans that had been brokered previously by Investment. They share the same offices and expenses, and have the same employees, stockholders, officers and directors.

The interest rate charged by Investment did not exceed ten percent. The brokerage fee charged by Service did not exceed that authorized by Chapter 494, Florida Statutes, under which both corporations were incorporated.

Sumner, a mathematics major and computer expert with the Lewis State Bank, negotiated a second mortgage loan with a Mrs. Fritz, an employee of Investment and Service. Mrs. Fritz handled the loan application, processed the loan, and closed the loan.

Sumner and his wife signed a note and second mortgage for $5,650.00, payable in sixty equal mothly installments at ten percent per year. The net proceeds paid to the Sumners was $5,000.00. The $650.00 was the broker’s fee and was so indicated in the closing statement.

During the loan negotiations, the Sum-ners thought they were dealing solely with Investment, and were unaware of the existence of Service. However, at the closing, the check for $5,000.00, which was delivered to the Sumners, was made by Service.

During the loan negotiations, Sumner conferred with his attorney from time to time. After making several payments on the loan, the Sumners brought suit against Investment charging it with usury, because the interest charged plus the broker’s fee charged exceeded the legal rate of interest.

Investment was initially incorporated to broker mortgages for its own account to be sold to investors. It was informed by the then Comptroller of Florida that it could charge broker’s fees, although it intended to make mortgage loans with its own money for the purpose of then selling the mortgages. Subsequently, for tax purposes, Service was incorporated for the purpose of handling the brokerage services.

Investment advertised its mortgages for sale, and from time to time would sell a mortgage, although not often. On occasion, Service would broker mortgage loans for other than Investment. The employees and officers of Investment stated that there was never an intent to charge more than the interest permitted by law.

Usury is a matter of intent. It is not determined by the fact that the lender receives more than the law permits. It is determined by the existence of a corrupt purpose in the lender’s mind to get more than the legal rate of interest. Dixon v. Sharp, 276 So.2d 817 (Fla.1973).

The parties are permitted to testify to their intention. Intent is gathered from the circumstances surrounding the entire transaction. River Hills, Inc. v. Edwards, 190 So.2d 415 (Fla.App.2d, 1966).

The difference between a lawful transaction and a usurious one is the difference between good faith and bad faith. Dixon v. Sharp, supra.

To willfully do something, it must proceed from a conscious motion of the will intending the result which comes to pass. Dixon v. Sharp, supra.

The party who alleges usury must establish the charge by clear and satisfactory evidence. Dixon v. Sharp, supra.

The trial court found that Investment did not have a corrupt intent to knowingly and willfully charge and receive an unlawful rate of interest. This finding comes to us with a presumption of correctness. Because the trial judge heard this case without a jury, we cannot disturb the finding unless it is clearly erroneous. We cannot say the trial court erred.

The Sumners contend that the trial court erred in failing to find that the broker’s fee was a device used by Investment to charge usurious interest, and erred in failing to find that Service and Investment were one and the same corporation. It is unnecessary for us to consider these issues, because even if Investment technically violated Section 687.03, Florida Statutes, there was no clear showing of corrupt intent to willfully violate the statute. In Re Dekle, 308 So.2d 5 (Fla.1975).

The judgment is AFFIRMED.

RAWLS, Acting C. J., and SMITH, J., concur.


author: MoCORD, Judge.

text:
    Paul T. POWELL, Appellant, v. STATE of Florida, Appellee.
    No. Y-518.
    District Court of Appeal of Florida, First District.
    May 12, 1976.
    Rehearing Denied June 11, 1976.

      W. Crosby Few of Few & Ayala, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MoCORD, Judge.

This is an appeal from appellant’s conviction of possession of marijuana. He entered a negotiated plea of nolo contendere on the possession charge while preserving his right to appeal the denial of the motion to suppress. The sole question on appeal is whether or not the trial court erred in denying the motion to suppress.

Appellant pulled into a Florida Department of Agriculture Inspection Station on 1-75 near Jasper, Florida, on November 8, 1974, driving a pickup truck and hauling a U-Haul trailer. Inspector Morgan asked him what he was hauling and appellant replied furniture and hay. Morgan asked him to unlock the trailer for inspection and appellant tried several keys and finally stated that his wife, who was driving a car, must have the key. Morgan had appellant pull to the side and called a senior inspector, R. C. Buckles, to the scene. Appellant told Buckles that he was hauling hay and furniture and Buckles said he would have to look inside the trailer before appellant could leave. Morgan next called his superior, Mr. Delegal, to the scene and explained the situation to him. The inspectors were all in uniform and wore badges. Appellant asked if he could leave but was informed by Delegal that the trailer had to be checked because of the hay. (A memorandum of the Department of Agriculture and Consumer Services of September 21, 1973, to all road guard stations advised that they were to no longer inspect for hay.) Dele-gal then gave appellant three options: (1) wait for someone to come with a key, (2) break open the lock, or (3) wait for them to obtain a search warrant. He told appellant that he had authority under the law to search the trailer. Appellant then capitulated and broke the lock with a tire iron. The search revealed marijuana and Delegal called the sheriff.

The officers had no probable cause to believe that appellant was carrying marijuana or any other contraband. While the agricultural inspection law which was in effect at the time of this incident, § 570.15, Florida Statutes 1973, purportedly authorizes search of motor vehicles used in transportation of any agricultural product, it provides that if such access is refused, the inspector may apply for a search warrant “which shall be obtained as provided by law for the obtaining of search warrants in other cases.” The District Court of Appeal, Second District, in Talavera v. State, Fla.App.(2d) 186 So.2d 811 (1966), summarized the law in relation to consent to search or waiver of a search warrant as follows :

The constitutional right of the people to be secure in their persons, houses and papers against unreasonable searches and seizures is a fundamental and cherished liberty. This individual right, in recent judicial history, has been given a renewed importance and is zealously protected by- the Judiciary. Therefore it is incumbent upon the state to clearly establish a waiver of this right.
‘A distinction is recognized * * * between submission to the apparent authority of an officer and unqualified consent. Mere acquiescence in a search is not necessarily a waiver of a valid search warrant. Rather, for an occupant to waive his rights, it must clearly appear that he voluntarily permitted or expressly invited and agreed to the search, being cognizant of his rights in the premises * * 47 Am.Jur., Searches and Seizures, § 71.”

It is clear that appellant’s consent to this search was not a free and voluntary waiver of a search warrant but was merely submission to the apparent authority of the three officers who had informed him that they had authority under the law to search his trailer and would obtain a search warrant, when as a matter of fact, they had no authority to make the search unless they obtained a search warrant. Compare Sarga v. State, Fla.App.(1st), 322 So.2d 592 (1975). Also see Stephenson v. Department of Agriculture and Consumer Services, Fla.App.(1st), 329 So.2d 373, 1976.

The District Court of Appeal, Second District, in Mack v. State, Fla.App.(2d), 298 So.2d 509, held under somewhat similar circumstances that a search without a warrant was legal, but there, unlike here, the officer had probable cause to believe that Mack was carrying unlawful drugs. Upon the officer so informing Mack and telling him that he could get a search warrant and that he was going to put his truck under surveillance while he obtained it, Mack said, ‘‘Go ahead and search. I have nothing to hide.” In the case sub judice the inspectors were persistent in convincing appellant that they had the authority to search his trailer and that they could obtain a search warrant, when, as a matter of fact, they had no probable cause to believe that he was carrying any contraband or that he was carrying any agricultural product other than hay, which they had been advised to no longer inspect. They convinced appellant that they had authority which they did not have, and thereby coerced him to break the lock and open the trailer pursuant to their demands. Such consent was certainly not voluntary under the standards heretofore related. To condone a warrantless search under these circumstances would make a mockery of the constitutional safeguard against unreasonable searches and seizures. Officers could at any time coerce consent through the bluff and subterfuge' of informing the detained person that they could obtain a search warrant when, as a matter of fact, they could not.

Reversed and remanded.

RAWLS, Acting C. J., and SMITH, J., concur.


author: MILLS, Judge. BOYER, Chief Judge

text:
    Louise M. DOOLITTLE, Appellant (Defendant), v. FRUEHAUF CORPORATION, a corporation, Appellee (Plaintiff).
    No. W-413.
    District Court of Appeal of Florida, First District.
    May 18, 1976.
    Rehearing Denied June 11, 1976.

      George L. Hudspeth and Jean C. Coker, of Mahoney, Hadlow, Chambers & Adams, Jacksonville, for appellant.
    Herman Ulmer, Herman Ulmer, Jr., and Gary B. Tullís, of Ulmer, Murchison, Ash-by & Ball, Jacksonville, for appellee.
   MILLS, Judge.

Fruehauf sought specific performance of an option to purchase contained in a lease between it and Doolittle. Following a non-jury trial, a judgment was entered in favor of Fruehauf. Doolittle appeals from this judgment.

The issue presented to us is whether the option was properly and timely exercised by Fruehauf.

Fruehauf and Doolittle entered into a lease. The lease gave Fruehauf an option to purchase the leased premises. The option read as follows:

“Lessee shall have the further right and option to purchase the demised premises after the first year of this lease and during the remainder of the term and any extension or renewal thereof for the sum of $50,000 cash.”

The lease ended on 31 October 1973. On 19 September 1973, Fruehauf gave written notice of its desire and intent to purchase the leased premises. Doolittle acknowledged receipt of this notice by letter of 28 September 1973, and enclosed with the letter a proposed form of warranty deed. No further correspondence was had between the parties until 12 December 1973, when Doolittle by letter of that date wrote Fruehauf:

“Since you have elected not to exercise the option . . . the option has expired.”

On 18 December Fruehauf tendered the $50,000 purchase price and asked for delivery of Doolittle’s warranty deed. The $50,000 check was not accepted by Doolittle. She stated that the tender of the purchase price had not been made prior to the termination of the lease.

From the outset, it should be noted that the lease did not specify the manner in which the option was to be exercised nor did it set forth any time or procedure for closing the purchase in the event the option was exercised.

It is not necessary to tender purchase money as a condition precedent to exercising an option, if this condition is not expressly stated in the option. Martin v. Albee, 93 Fla. 941, 113 So. 415 (1929); Sisco v. Rottenberg, 104 So.2d 365 (Fla.1958).

The two steps which are necessary to exercise an option are: (1) there must be a decision by the optionee to purchase the property under the terms of the option; (2) the optionee must communicate the decision to the optionor within the life of the option. Norris v. Eikenberry, 137 So. 128 (Fla.1931).

In the case before us, Fruehauf determined that it wished to purchase the property in accordance with the terms of the option. In other words, for $50,000 cash. Then by letter of 19 September, Fruehauf attempted to communicate this decision to Doolittle. Doolittle contends that the language used in the letter was not sufficient to constitute an acceptance and would not have been binding on Fruehauf had Doolittle chosen to maintain an action for specific performance. The language Doolittle refers to are the phrases “desire to purchase” and “intent to purchase”. However, this supposedly conditional language must be read in the context of the letter:

“Fruehauf Corporation herewith tenders formal notice of their desire to purchase the property. We are hopeful conveyance can be officially consummated on or about October 31, 1973. We will appreciate acknowledgment from you of this notice of our intent to purchase. Also, we would appreciate your suggestions and comment on what documents you will prepare and/or „ provide before and at the closing.”

In our opinion, this language is not equivocal, ambiguous or conditional. It clearly communicates Fruehauf’s decision to purchase the property from Doolittle, and that is all that is required to exercise an option. At this point the option became a bilateral contract, binding on both parties, and susceptible of enforcement by a court of equity in a suit for specific performance.

Doolittle contends that if the option is deemed to have been exercised and a bilateral contract created, the terms of the option become the terms of the contract. She argues that the phrase “time is of the essence” in the lease agreement now becomes a term of the contract. Therefore, since time is of the essence, Fruehauf breached the contract by not paying the purchase price by 31 October when the lease was to be extinguished. There is nothing in the option which indicates that the purchase price had to be paid before 31 October. When there is no time set for the performance of a certain act, it is interpreted to mean that the act must be done within a reasonable time. Here there was no time set for the payment of the purchase money.

AFFIRMED.

McCORD, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting.)

I respectfully dissent. Although I have the utmost confidence in the learned and able trial judge and I recognize the presumption of correctness accorded by law to his findings and conclusions, I am of the view that the language of the letter from Fruehauf Corporation tendering “formal notice” of its “desire” to purchase the subject • property was not sufficient to turn a unilateral contract (the option) into a binding bilateral contract which would have bound Fruehauf to purchase, had it subsequently refused so to do. Certainly I agree that, absent a provision so requiring, in order to exercise an option to purchase it is not necessary for the exercise to be accompanied by a tender of the purchase price. However, in the absence of a simultaneous tender of the purchase price, the exercise of the option must be unequivocal. A recitation that the optionee “desires” to purchase the subject of the option is not unequivocal. Further, the option clearly provided that Fruehauf Corporation had the Option "to purchase” the subject property during the term of the lease. The lease term expired on October 31, 1973. Normally an option provides the manner by which it may be exercised, the date thereof, the terms of the purchase and a deadline for consummating the purchase. The option here involved contained no such provisions. In the absence of such provisions I would hold that the language of the option means what it says and that the “purchase” was required to have been accomplished within the prescribed period of time. It was not.

I would reverse.


author: SMITH, Judge. RAWLS, Acting Chief Judge

text:
    Fred V. SPADARO, Appellant, v. STATE of Florida, Appellee.
    No. Y-345.
    District Court of Appeal of Florida, First District.
    May 18, 1976.
    Rehearing Denied June 11, 1976.
    Leo A. Thomas, of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellant.

      Robert L. Shevin, Atty. Gen., and Gerald L. Knight, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Spadaro asserts that his felony convictions as a recidivist beverage law violator, § 562.45(1), F.S., were vitiated by an insufficient verdict and by the trial court’s action in resubmitting the case for a proper verdict after the jury had been excused from service.

Spadaro was charged in three counts with felony violations of the beverage laws, ch. 562, F.S. Count one alleged that he had previously been convicted of beverage law violations and that on January 26, 1975, he possessed alcoholic beverages with intent to sell without a license. Count two alleged his previous convictions and that he unlawfully maintained a place where alcoholic beverages were sold without a license. Count three alleged his prior convictions and that on February 1, 1975, he again possessed alcoholic beverages with intent to sell without a license.

Trial was had and a jury verdict was returned in the following form: “We, the Jury, find the defendant, Fred V. Spadaro, guilty as charged under the first, second, and third counts of the amended Information. So say we all.” After receiving the verdict the trial judge addressed the jury: “You are excused now from further jury service and we do appreciate your being with us this week. Report where you came in Monday morning across the hall and the Clerk will pay you for being with us this week. Thank you again. Court is adjourned.”

Immediately after the jurors left the courtroom, appellant’s attorney moved for a judgment of acquittal and to arrest the judgment on the ground, among others, that the verdict was insufficient to support a felony judgment and sentence in that it failed to find explicitly that appellant had previously been convicted of beverage law violations. The court, after admonishing appellant’s lawyer, recalled the jury, which had not dispursed from the courthouse, and resubmitted the case with a new verdict form which recited Spadaro’s guilt of the current charges and separately found that he had previously been convicted of beverage law violations. The jury returned its verdict on that form and the trial court adjudicated Spadaro guilty on all three counts and sentenced him to felony terms on two of them. Sec. 562.45, F.S.

Our Supreme Court has held a general verdict of guilty as charged is insufficient to convict a recidivist under the felony provisions of § 562.45, F.S., even when the information charges, as it does here, that the accused was previously convicted for violating beverage laws. State ex rel. Lockmiller v. Mayo, 88 Fla. 96, 101 So. 228 (1924); Barnhill v. State, 41 So.2d 329, 331, 332 (Fla.1949). The rationale of those decisions is that the prior conviction is not an element of the more recent offense, itself a misdemeanor, and that the private conviction must be separately found by the jury. But the same authorities hold also, as consistency would require, that the jury should be charged both on the elements of the misdemeanor and on the separate issue of prior conviction, and that the jury should be instructed to find by its verdict, if there is a conviction, whether the accused was previously convicted.

Spadaro’s counsel not only acquiesced in but affirmatively induced the trial court’s error for which he seeks reversal. It was not simply that Spadaro’s counsel did not volunteer an objection to the form of verdict submitted to the jury. The error in the verdict was foredoomed by the court’s erroneous jury charge that Spadaro’s previous conviction of a Florida beverage law violation was one of the essential elements of the offenses charged in the information. The jury’s irregular verdict was entirely responsive to those instructions. And it was Spadaro’s counsel who requested that the jury be so charged.

Spadaro is in no position to complain of a felony verdict which was dispositive of the issues tried and consistent with instructions erroneously given at his request. Bianchi v. State, 272 So.2d 8 (Fla.App.3d, 1973); Castle v. State, 305 So.2d 794 (Fla.App.4th, 1975), cert. den. 317 So.2d 766. We therefore do not reach the question of whether the jury, which had not dispersed from the courthouse, could be recalled to consider a corrected form of verdict. None of Spadaro’s other points require reversal.

AFFIRMED.

MILLS, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

In Barnhill, supra, the Supreme Court quoted with approval the rule stated in Coulson v. State, 110 Fla. 281, 149 So. 522 (1933), viz:

“. . . ‘In the present case the verdict of the jury did not expressly determine separately, as we have held must be done, the historical fact of the defendant’s former conviction as alleged. Benson v. State, 88 Fla. 103, 101 So. 231. A verdict of “guilty” in a case like this, where more severe penalties for a second or third offense are invoked, is not regarded as responsive to the allegations of the indictment charging a given criminal act as constituting a second offense in order to lay the predicate for an increased penalty on conviction. State ex rel. Lockmiller v. Mayo, supra [101 So. 228 (Fla.1924)]. Therefore such verdict should have been set aside on defendant’s motion and a new trial awarded. Reversed for a new trial.’ ”

and squarely held that a verdict such as the instant one must be set aside. The state contends, first, that since Spadaro did not object to the form of the verdict prior to the jury’s initial release, he waived any objection as to form, citing this court’s opinion in Whilden v. State, 301 So.2d 35 (1 Fla.App.1974), and the Supreme Court’s opinion in State v. Jones, 204 So.2d 515 (Fla.1967). In Whilden, this court observed that defense counsel affirmatively stated that he had no objection to the form of the verdict and that the verdict was in such a form that a lesser included offense could be ascertained. Such construction cannot be applied here. Jones involved the question of alleged improper comments by the state attorney in his argument to the jury and likewise, is not applicable.

Washington v. State, 55 Fla. 194, 46 So. 417 (1908), is applicable. There, the court stated:

“. . . When the court comes to pronounce sentence, there ought to be no uncertainties about the offense of which the prisoner is guilty. Mr. Bishop says: ‘As already intimated, there ought never to be a defect in the verdict. If the jury bring in a defective verdict, it is in the power equally of the prisoner and the prosecuting attorney to have it set right; and, suppose the prisoner chooses not to interfere, and suffers a defective verdict to be entered, as his interest would always prompt him to do, in preference to a verdict of guilty in due form, he, by thus failing to interpose, waives his objection to be [sic] put a second time in jeopardy for the same offense [sic]. In all such cases, therefore, the verdict is simply set aside as a nullity, and new trial is ordered. The court cannot, instead of this, make the verdict, or the judgment, what it thinks it ought to be.’ 1 Bishop’s Cr.Proc. § 1016 [2 ed. (1872) at 631].”

The state’s position is that the “second” jury verdict cured any defects contained in the initial verdict. Such contention cannot withstand the long established and well-honored rule of law that upon discharge, the members of a jury lose their separate identity as a jury and can be affected by extra-trial influences. State v. Smith, 183 So.2d 34 (2 Fla.App.1966), and Smith v. State, 330 So.2d 59, Fla.App., Opinion filed April 13, 1976, not yet reported.

I would reverse with directions that a new trial be granted.

      . The trial judge stated: “You can object to it but I don’t think you have been completely fair with the court in discharging your duty as an officer of the Court by sitting back on this decision while the court submits what appears to be an improper verdict of the jury without comment.”

      . cf. Lindsey v. State, 330 So.2d 867, Fla.App., opinion filed ,April 28, 1976, not yet reported.

      . See also Vogel v. State, 124 Fla. 409, 168 So. 639 (1936).


author: GRIMES, Judge.

text:
    SKAGGS-ALBERTSON’S PROPERTIES, INC., Appellant, v. MICHELS BELLEAIR BLUFFS PHARMACY, INC., et al., Appellees.
    No. 75-1050.
    District Court of Appeal of Florida, Second District.
    May 12, 1976.
    Rehearing Denied June 10, 1976.
    James A. Urban and James E. Slater, of Maguire, Voorhis & Wells, P. A., Orlando, Paul R. Pizzo, of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa; and Emerson Allsworth, Fort Lauderdale, for appellant.
    Allen P. Allweiss, of Allweiss & Anderson, St. Petersburg, and Jack F. White, Jr., Clearwater, for appellee, Michels Belleair Bluffs Pharmacy, Inc.
    Kenneth E. Easley, of Gormin, Geoghe-gan, Easley, Gránese & Bauman, P. A., Clearwater, and David F. Kern, Belleair Bluffs, for appellees, City of Belleair Bluffs, Florida, and C. Frank Snyder.
   GRIMES, Judge.

This is an appeal from a judgment entered upon the complaint of a nearby property owner enjoining the construction of a large retail “drugstore” for being in violation of the zoning ordinance of the City of Bell-eair Bluffs.

Appellant (Skaggs) is the owner of property in Belleair Bluffs on which it proposes to construct a combination grocery, drug, sundry and hardware retail store. The property is located in a C-l zoning district which permits “commercial development such as compact shopping areas located in the neighborhood which they serve.” Skaggs applied for a building permit. After reviewing the plans, the city engineer determined that the proposed structure and use were permitted in a C-l zoning district and caused a building permit to be issued.

Prior to the commencement of construction, the appellee (Michels) filed with the city a written objection to the issuance of the building permit. Five days later and without waiting for further action on the part of the city, Michels filed this suit for injunction. At the trial, most of the testimony was directed toward whether Skaggs’ operation would be a neighborhood type store and whether the non-storage areas of the store had been properly calculated for the purpose of determining the required amount of off-street parking. The court concluded that the construction contemplated by Skaggs violated the zoning ordinance in these aspects and also in certain other particulars. The court further held that Michels had standing to complain of the violations and that it was unnecessary for Michels to exhaust its administrative remedies before filing suit.

Skaggs argues the following points on appeal:

(1) whether the court erred in holding that exhaustion of administrative remedies was not a prerequisite to the filing of the suit;
(2) whether the court erred in finding that Michels had standing to bring the subject action;
(3) whether the court erred in finding that Skaggs’ proposed use of its property would be in violation of the zoning ordinance;
(4) whether the granting of the permanent injunction was unwarranted by the facts and constituted a premature intervention by the court into the administrative process.

The City of Belleair Bluffs filed a brief in support of Skaggs’ position. We have concluded that the judgment must be reversed on the first two grounds, so it is not necessary for us to consider the remaining contentions.

In DeCarlo v. Town of West Miami, Fla.1950, 49 So.2d 596, the Supreme Court responded in the negative to the question of whether a party could seek injunctive relief on the ground that a zoning ordinance was invalid with respect to his property without first having exhausted the administrative remedies available under the ordinance. In support of its conclusion, the court said:

“The administrative boards usually provided for the consideration and review of zoning problems are made up of local people, having the advantage of full local information as to the reasons behind the various zoning regulations. Their findings, while not conclusive, are indeed helpful in the ultimate determination of the rights of the parties. Moreover, the inequalities of a zoning ordinance, if called to the attention of such local administrative boards, may frequently be adjusted at that level. Such boards should, at least, be given an opportunity to afford relief, or state their reasons for not doing so.”

Our court’s decision in Hennessy v. City of Fort Lauderdale, Fla.App.2d, 1958, 101 So.2d 176, is more directly on point because the complaint being made against the city’s interpretation of its zoning ordinance was made by parties who did not own the property in question. There the plaintiffs had successfully obtained an injunction against the construction of a mortuary as being in violation of the zoning ordinance. On appeal, this court reversed for the failure of the trial court to permit the owners to raise the defense that the plaintiffs had failed to exhaust their administrative remedies. The court held that where a challenge was being made to the action of the city’s building inspector in his interpretation of the zoning ordinance as contrasted to a general attack on the validity of the ordinance, it was necessary for the plaintiffs to exhaust such administrative remedies as were available to them before going to court.

Admittedly, our sister court in Continental Con-Dev Company v. Shallberg, Fla.App.4th, 1972, 267 So.2d 40, held that the exhaustion of administrative remedies was not a prerequisite to a suit brought to enjoin the construction of a building in violation of the city’s zoning code. However, just two years later in Medical Arts, Inc. v. Rohrbaugh, Fla.App.4th, 1974, 293 So.2d 366, the same court reached the opposite conclusion without citing the Continental Con-Dev case. In Medical Arts the court held that it was essential for a property owner to exhaust his administrative remedies before seeking an injunction prohibiting the use of adjacent property as a parking lot in violation of the zoning code.

The zoning ordinance of the City of Bell-eair Bluffs provided for the Board of Adjustments to hear appeals from administrative opinions and decisions. Even if the objection filed by Michels with the city were construed to be an application for appeal, Michels did not wait for the Board of Adjustment to act. Michels’ assertion that the Board of Adjustment would have rub-berstamped the actions of the city engineer does not obviate the necessity of giving the Board of Adjustment an opportunity to carefully consider any objections which are made to the administrative decisions of the city employees with respect to zoning.

A reversal on the ground that Michels failed to exhaust its administrative remedies would require only that the suit be dismissed without prejudice because it was prematurely filed. We, therefore, proceed to the question of standing since our disposition of that issue also serves to dispose of the case with finality.

The leading case on the question of the standing required to seek an injunction against the violation of a municipal zoning ordinance is Boucher v. Novotny, Fla.1958, 102 So.2d 132. The plaintiff in that case owned property across the street from the property on which Novotny was building a motel which was allegedly in violation of the setback requirements of Clearwater’s zoning ordinance. The Supreme Court affirmed the dismissal of the complaint on the grounds of lack of standing. The court said:

“We, therefore, align ourselves with the authorities which- hold that one seeking redress, either preventive or corrective, against an alleged violation of a municipal zoning ordinance must allege and prove special damages peculiar to himself differing in kind as distinguished from damages differing in degree suffered by the community as a whole.”

The other significant Supreme Court case on this subject is Renard v. Dade County, Fla.1972, 261 So.2d 832. The bulk of the opinion in that case was directed toward the proposition that where a person attacks a zoning ordinance which is void because not properly enacted or attacks a validly enacted zoning ordinance as being an unreasonable exercise of legislative power, he need not meet the “special damage” requirement of Boucher so long as he has a legally recognizable interest which is adversely affected by the ordinance. The court reaffirmed the Boucher rule requiring one who seeks to enjoin an alleged violation of a valid municipal zoning ordinance to first prove special damages peculiar to himself which differ in kind rather than in degree from those suffered by the community as a whole. At the same time, the court said:

“. . . However, in the twenty years since the Boiccher decision, changed conditions, including increased population growth and density, require a more lenient application of that rule. The facts of the Boucher case, if presented today, would probably be sufficient to show special damage.”

Notwithstanding the foregoing observation, the District Court of Appeal in Continental Con-Dev Company v. Shallberg, supra, thereafter dismissed a suit for lack of standing on facts almost identical to Boucher. Subsequently, that court upheld the right of a property owner to sue to' enjoin Florida Power and Light Company from installing high voltage power lines adjacent to his property in violation of city zoning ordinances. The court noted that the plaintiff had suffered damages differing in kind from the community generally because his property adjoined the land upon which the alleged zoning violation existed, whereas, in Boucher and Continental Con-Dev the property of the respective plaintiffs was sufficiently removed from the area in which the violations were occurring. Carroll v. City of West Palm Beach, Fla.App.4th, 1973, 276 So.2d 491. More recently, the Third District Court of Appeal held that adjacent landowners across a waterway from an island had standing to maintain an action to enjoin claimed zoning violations arising out of the construction of two-story parking garages which would have the net effect of raising the vertical clearance on the entire island thereby obstructing the plaintiffs’ view and possibly causing delay in the recession of storm waters which could aggravate the risk of flooding the plaintiffs’ home. State ex rel. Gardner v. Sailboat Key, Inc., Fla.App.2d, 1974, 306 So.2d 616.

Our problem is to determine where the facts of the instant case fall. The Skaggs’ store is to be constructed on the southeast corner of the intersection of West Bay Drive and Indian Rocks Road. Both of these streets are heavily traveled two-lane roads. The intersection is controlled by electric traffic signals. There is commercial property on all four corners of the intersection. Michels Pharmacy is in a small shopping center located on the northwest corner of the intersection but several other stores in this shopping center are closer to the Skaggs’ property. The distance from the northwest corner of the Skaggs’ property to the southeast corner of the area where Michels’ customers park is approximately 425 feet. It is almost twice that distance from the front door of Michels Pharmacy to the front door of the proposed Skaggs’ building.

One of Michels’ main complaints is that the operation of the Skaggs’ store will cause a substantial increase in traffic. Michels also expressed concern that if the Skaggs’ parking lot were full, some of Skaggs’ customers might park in the Michels’ parking lot. However, Michels admitted that there were other parking areas between; his store and the Skaggs’ property. He acknowledged that the other stores in the area would also be affected by the increased traffic and the possible overflow parking.

In the final analysis, Michels’ claim of special damages does not appear to be as strong as those of the plaintiffs in Novotny and Continental Con-Dev. The fact that Michels might lose business because of competition from Skaggs’ drugstore operation cannot provide the requisite standing. Cord Meyer Development Co. v. Bell Bay Drugs, Inc., 1967, 20 N.Y.2d 211, 282 N.Y.S.2d 259, 229 N.E.2d 44. Neither would the fact that increased traffic could be expected as a result of the Skaggs’ store. Joseph v. Township of Grand Blanc, 1967, 5 Mich.App. 566, 147 N.W.2d 458; cf. Florida Palm-Aire Corporation v. Delvin, Fla.App.4th, 1969, 230 So.2d 26. As stated in Victoria Corp. v. Atlanta Merchandise Mart, Inc., 1960, 101 Ga.App. 163, 112 S.E.2d 793:

“The mere increase in traffic congestion adjacent to one’s property as the result of improvements erected on nearby property and the attendant inconvenience resulting therefrom which are damages suffered alike by all property owners similarly situated, does not give to one individual such a substantial interest in the decision of the Board of Adjustment permitting the improvement as to authorize an appeal therefrom. Such increase in traffic congestion and attendant difficulties in finding parking places are matters which address themselves to the police authorities of the municipality rather than to the zoning authorities.
“. . . Such an inconvenience is a condition incident to urban living. It is merely the result of normal, urban growth and development. To hold that such an inconvenience would give to any resident or property holder of an urban area the right to override the decisions of boards of zoning appeals any time such property owner or resident disagreed with such decision would be a dangerous precedent to establish. It would result in materially slowing, if not completely stopping, the inevitable and necessary growth of large modern cities. . . .”

We, therefore, hold that any damages suffered by Michels as a result of the zoning violations which would ensue from the construction and operation of the Skaggs’ store are only damages differing in degree from those suffered by the community as a whole and are not special damages which differ in kind. Accordingly, Michels lacks the standing necessary to maintain this suit.

REVERSED.

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


author: McCORD, Judge.

text:
    Leo R. McCORMACK, Appellant, v. STATE of Florida, Appellee.
    No. Y-295.
    District Court of Appeal of Florida, First District.
    May 24, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was indicted for first degree murder and pled guilty to second degree murder. At sentencing he moved for a continuance and asked that the confidential portion of the presentence 'investigation report of the Florida Parole and Probation Commission be disclosed to him. This motion was based upon his stated belief that important factual background was either omitted entirely from the report or was improperly included in the confidential portion thereof.

Rule 3.713, F.R.Cr.P., states as follows:

“(a) The trial judge may disclose any of the contents of the presentence investigation to the parties prior to sentencing. Any information so disclosed to one party shall be disclosed to the opposing party.
(b) The trial judge shall disclose all factual material, including but not limited to the defendant’s education, prior occupation, prior arrests, prior convictions, military service and the like, to the defendant and the State a reasonable time prior to sentencing. If any physical or mental evaluations of the defendant have been made and are to be considered for the purposes of sentencing or release, such reports shall be disclosed to counsel for both parties.
(c) Upon motion of the defendant or the prosecutor or on its own motion, the sentencing Court may order the defendant to submit to a mental or physical examination which would be relevant to the sentencing decision. Copies of such examination or any other examination to be considered for the purpose of sentencing shall be disclosed to counsel for the parties subject to the limitation of Rule 1.713(b).”

The intent of the foregoing rule is further clarified by the Committee Note which states as follows:

“This rule represents a compromise between the philosophy that presentence investigations should be fully disclosed to a defendant and the objection that such disclosure would dry up sources of confidential information and render such report virtually useless, (a) gives the trial judge discretion to disclose any or all of the report to the parties, (b) makes mandatory the disclosure of factual and physical and mental evaluation material only. In this way, it is left to the discretion of the trial judge to disclose to a defendant or his counsel any other evaluative material. The Judicial discretion should amply protect the confidentiality of those sources who do not wish to be disclosed, while the availability of all factual material to the defendant will permit him to discover and make known to the sentencing court any errors which may appear in the report.”

At sentencing the trial judge indicated that appellant’s statement of his version of the shooting, which he made to the probation supervisor, was included in the confidential portion of the report and that other background information was included. In mitigation before sentence, the trial court heard appellant and a number of witnesses presented by him. The only question raised on this appeal is whether or not the trial judge committed error in not releasing the confidential part of the report to the appellant.

Pursuant to a previous order entered by this court, we have examined the presen-tence investigation report in camera in its entirety. While we consider that the Florida Probation and Parole Commission should have included in the non-confidential portion of its report all of the statement of appellant made to the parole supervisor had appellant indicated that he desired the release of same, we cannot say that such statement and the other material contained in the confidential portion of the report constituted factual material within the contemplation of Rule 3.713, F.R.Cr.P. We, therefore, find that the trial judge did not abuse his discretion in not releasing same.

AFFIRMED.

RAWLS, Acting C. J., and SMITH, J., concur.


text:
    BRICKELL CONSTRUCTION COMPANY, Appellant, v. Richard R. HARTMAN, as Nominee for Massmutual Mortgage and Realty Investors, a Massachusetts Business Trust, and not Individually, Appellee.
    No. 75-1888.
    District Court of Appeal of Florida, Third District.
    May 11, 1976.
    McCormick, Bedford & Backmeyer, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and R. Benj amine Reid, Miami, for appellee.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Your Construction Center, Inc. v. Gross, Fla.App.1975, 316 So.2d 596 and Brickell Construction Corp. v. Pujol, Fla.App.3d 1976, 329 So.2d 340.


author: MILLS, Judge. MILLS, Judge.

text:
    James O. STRICKLEN, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-317.
    District Court of Appeal of Florida, First District.
    May 12, 1976.
    Amended on Rehearing June 10, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Stricklen was charged with, and convicted by a jury of manslaughter by culpable negligence, and driving an automobile while intoxicated resulting in the death of Cain. He appeals from the judgment of conviction and concurrent five-year sentences on each offense. Stricklen contends that the trial court erred in imposing the two sentences, because there was only one homicide. We agree. Phillips v. State, 289 So.2d 769 (Fla.App.2d, 1974). Only one sentence is appropriate where there is only one homicide.

Reversed and remanded for the entry of but one sentence.

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

ON PETITION FOR REHEARING

MILLS, Judge.

The opinion of the Court which was rendered on 12 May 1976 is amended by adding at the end thereof: It is not necessary for the defendant to appear in court at the time of resentencing.

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