text:
    THE FLORIDA BAR, Complainant, v. Theron S. HORNBUCKLE, Respondent.
    No. 50091.
    Supreme Court of Florida.
    June 30, 1977.
    Jack E. Thompson, Bar Counsel, Miami, and John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
   PER CURIAM.

We have for review a referee’s report entered as a result of a complaint made by The Florida Bar against Attorney Theron S. Hornbuckle. The findings of fact by the referee contained the following:

“As to Count I
“Prior to November, 1969, Theron S. Hornbuckle represented Mrs. Gaitha Martinez in various legal matters and was asked by her for advice concerning investing monies which she received from her deceased husband’s Estate.
“Mrs. Martinez, after advice from Respondent, delivered to him $18,500, which she thought was to be secured by properties of another client of Mr. Hornbuckle’s, with Mr. Hornbuckle being trustee for the latter client’s property. However, Mrs. Martinez became dissatisfied with this arrangement, and when Respondent was personally unable to repay the loan, she required and accepted a sixth mortgage on Respondent’s home.
“As to Count II
“In May of 1972, Respondent represented Mrs. Helen West at the closing for the sale of her house. Shortly thereafter Respondent asked Mrs. West to make him a loan which he would secure with a mortgage on his own home. Mrs. West then loaned $13,500 to Respondent, and he gave her a Mortgage Deed on his property. Mrs. West did not fully understand that there were at least four other mortgages on his home when he gave her the mortgage securing her loan, although the Mortgage Deed did recite the prior indebtedness.
“As to Count III
“Respondent represented Mr. Willard Nordin in various legal matters for over twenty years. In October of 1973, Respondent asked Mr. Nordin to lend him $10,000. Mr. Nordin lent Respondent the $10,000, but for a period of no longer than one month. When Respondent was unable to repay the loan, he then secured the Nordin loan with a note and mortgage, intending to find a purchaser for said note and mortgage for them. Mr. Nordin did not originally want such an arrangement and has never fully agreed to accept such terms. The loan was not repaid.
“This Referee finds that Respondent’s loans were generally entered into in good faith by Respondent and that Respondent was unaware of the prohibitions of the Code of Professional Responsibility on entering into private transactions with clients without very full disclosure even if such transactions are matters of public record. Likewise, this Referee is aware that Respondent made some efforts to sell his home in order to satisfy the creditors in this matter.
“This Referee is aware that Respondent has filed a joint Motion for Summary Final Judgment of Foreclosure on his home, which will result in substantial repayment of principal indebtedness to the three parties mentioned in the above Counts, as well as to three other creditors in similar transactions.”

The referee recommended that respondent be found guilty on each count. He then recommended that respondent receive a suspension of sixty days and placed on probation thereafter for a period of two years. The referee recognized that more severe discipline would have been imposed if predicated on facts involving intentional deceit or fraud, but he specifically found that such were not present in this case. He recommended that the suspension should not require proof of rehabilitation except compliance with the terms and conditions of the probation which were set forth as follows:

“A. The Respondent will not commit any crimes or violate the Integration Rule or Code of Professional Responsibility of The Florida Bar.
“B. The Respondent shall, not later than 60 days after approval of this referee report by the Supreme Court of Florida, provide to the Clerk of the Supreme Court, with a copy to the Staff Counsel of The Florida Bar, a list of all debts, business, personal or otherwise, which are older than 90 days, and a schedule for the payment of these debts.
“C. The Respondent shall, not later than 60 days after approval of this referee report by the Supreme Court of Florida, provide to the Clerk of the Supreme Court, with a copy to the Staff Counsel of The Florida Bar, a detailed letter advising of the status of Case No. 75-8990, in the Circuit Court of the Eleventh Judicial Circuit of Florida, and of the status of the accounts or indebtedness of Respondent to:
“i. William M. Nordin and Marjorie K. Nordin
“ii. Howard S. Riggs, as Custodian for Tommy L. Riggs
“iii. Mary Barnes
“iv. Lester M. Guest and Pearl Anne Guest
“v. Gaitha Martinez
“vi. Helen M. West
“D. The Respondent shall, not later than 60 days after approval of this referee report by the Supreme Court, provide to the Clerk of the Supreme Court, with a copy to the Staff Counsel of The Florida Bar, a list advising the location of all known records and files of his practice of law. Such list or inventory need not be on a case by case basis, but shall state where bulk storage, present files, and other similar records are kept.
“E. During the period of this probation, Respondent shall file brief quarterly reports as to the foregoing with the Clerk of the Supreme Court of Florida with a copy to the Staff Counsel of The Florida Bar.
“F. Respondent consents, upon three working days’ notice to an inspection of all records relating to the foregoing by the Staff Counsel of The Florida Bar or such persons as may be designated by the Staff Counsel to conduct such an inspection.
“G. The Respondent shall not later than 60 days after approval of this referee report by the Supreme Court, provide an accurate list of all clients, past and present, with whom he has engaged in loan transactions. The Respondent shall not engage in any further loan transactions with any past or present clients without putting those clients on written notice of the existence and nature of this disciplinary proceeding, with a copy of such notice to Staff Counsel of The Florida Bar.
“H. BREACH OF PROBATION
“Respondent agrees that probable cause of his breach of the conditions of his probation shall be determined by the filing with the Supreme Court of Florida, of a complaint by the Staff Counsel of The Florida Bar, alleging such a breach and recommending further discipline.
“Respondent agrees that such a complaint shall then be heard before a Referee of The Florida Bar without the matter first being presented to a Grievance Committee. Should the Referee find the Respondent guilty of such a breach, the Respondent shall be deemed in contempt of the Supreme Court of Florida and subject to further discipline recommended by the Referee as provided in the Integration Rule. Final discipline for such contempt and the adjudication thereof shall be entered by the Supreme Court of Florida.
“The Board of Governors of The Florida Bar may make its own recommendations of discipline in the event of a Referee report finding a breach of this probation. The Respondent will be entitled to file a response to the factual conclusions of the report and to any recommended disciplines.
“V. Personal history and past disciplinary record:
“After finding of guilty and prior to recommending discipline to be recommended pursuant to Integration Rule 11.06(a)(4), I considered the following personal history and disciplinary record of the Respondent, to-wit:
“Age: 68
Date admitted to The Florida Bar: 1952 Prior Disciplinary measures: None Other personal data: Respondent was engaged in an active general practice for nearly 25 years without any meritorious complaints and enjoyed a good reputation with his clients and other attorneys generally.”

The respondent has been engaged in the general practice of law for almost twenty-five years and no complaints had previously been filed by The Florida Bar. Respondent has enjoyed a good reputation with his clients and other attorneys generally.

We approve and adopt the findings of fact and the recommendation of the referee.

The respondent Theron S. Hornbuckle is suspended from the practice of law for a period of sixty days and is placed on probation for a period of two years under the terms and conditions set forth above. The suspension does not require proof of rehabilitation except that respondent must comply with the terms and conditions of the probation.

Costs are taxed against, the respondent in the amount of $345.70.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and HATCHETT, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John Wayne TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1137.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and Tatjana Ostapoff, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Jurisdiction over the above styled case was temporarily relinquished to the trial court for a period of thirty days to ascertain the existence of a trial transcript, and if not in existence, whether such trial transcript could be reconstructed. The trial court having conducted a hearing thereon and having found that no trial transcript exists and that such transcript could not be reconstructed, and the state concurring therein, the judgment appealed is reversed and the cause remanded for a new trial. Yancey v. State, 267 So.2d 836 (Fla. 4th DCA 1972); Roberts v. State, 287 So.2d 123 (Fla. 4th DCA 1973).

REVERSED AND REMANDED.

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


text:
    James L. TRASPORT, Appellant, v. Rachel S. TRASPORT, Appellee.
    No. 75-1318.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Robert H. Springer of Kohl, Springer, Springer & Vassallo, West Palm Beach, for appellant.
    Robert S. Levy, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed upon authority of Zimmer v. Zimmer, 328 So.2d 525 (Fla. 4th DCA 1976).

MAGER, C. J., and WALDEN and DOW-NEY, JJ., concur.


text:
    John Anthony GRIER, Appellant, v. STATE of Florida, Appellee.
    No. 75-2056.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1976.
    Jeffrey S. Weiner and Robert M. Leen of Pollack, Tunkey, Robbins & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed upon authority of State v. Crum, 323 So.2d 673 (Fla.3d DCA 1976).

CROSS, DOWNEY and ALDERMAN, JJ., concur.


text:
    Samuel BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 76-41.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 1976.
    Rehearing Denied Feb. 16, 1977.
    Warner S. Olds, 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.

AFFIRMED.

MAGER, C. J., ALDERMAN, J., and STOKES, ROBERT G., Associate Judge, concur.


text:
    CITY OF CORAL SPRINGS, a Florida Municipal Corporation, Appellant, v. UNITED FEDERAL SAVINGS AND LOAN ASSOCIATION OF BROWARD COUNTY, Louis Kaye and Georgia Marie Kaye, his wife, Appellees.
    No. 76-1711.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 1976.
    Paul J. McDonough, Coral Springs, for appellant.
    Michael K. Davis, of Watson, Hubert & Davis, Fort Lauderdale, for appellee-United Federal Sav. and Loan Ass’n of Broward County.
   PER CURIAM.

Affirmed.

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


text:
    Odis McCALL, Appellant, v. STATE of Florida, Appellee.
    No. 75-1696.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

CROSS, J., and PAUL, MAURICE M., and CARLTON, CHARLES T., Associate Judges, concur.


text:
    Linson GUIDER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1771.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.
    Richard L. Jorandby, Public Defender, and Paul M. Herman, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

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


text:
    Jerry CLAPPER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1869.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Asst. Public Defender, and Randolph Murrell, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

MAGER, C. J., and CROSS and DOW-NEY, JJ., concur.


text:
    PAN AMERICAN LUMBER & HARDWARE, INC., a Florida Corporation, Appellant, v. EDWARD L. NEZELEK, INC., a New York Corporation, Travelers Indemnity Company, Felix Granados, August Urbanek, Steve Urbanek, Harry T. Mangurian, Jr., Jack LaBonte, James L. LaBonte, Individually and as partners of Hollybrook Condominium Venture, a general partnership, Appellees.
    No. 75-1900.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1976.

      Jerald C. Cantor, of Meyer Leben Fixel Cantor & Engelberg, Hollywood, for appellant.
    John M. Downing Jr., of Kelley Tompkins Frazier & Kelley, Fort Lauderdale, for ap-pellees, Edward L. Nezelek, Inc. and Travelers Indemnity Co.
    Dana C. Ferrell, of Byrd & Ferrell, Fort Lauderdale, for appellees, Grandadoes, Ur-banek, Mangurian, LaBonte, individually and as Partners of Hollybrook.
   PER CURIAM.

Affirmed.

CROSS, J., and PAUL, MAURICE M., Associate Judge, and CARLTON, CHARLES T., Associate Judge, concur.


text:
    Theo MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 75-781.
    District Court of Appeal of Florida, Fourth District.
    Jan. 21, 1977.
    Rehearing Denied Feb. 16, 1977.
    Richard L. Jorandby, Public Defender, and James R. Merola, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, ALDERMAN, and DAUKSCH, JJ., concur.


author: BOYER, Chief Judge. McCORD, Judge, McCORD, Judge. BOYER, Chief Judge,

text:
    Eugene QUARTERMAN, Appellant, v. CITY OF JACKSONVILLE, a municipal corporation, et al., Appellees.
    No. AA-31.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1977.
    On Rehearing June 30, 1977.

      John I. Todd, Jr., Jacksonville, for appellant.
    Mattox S. Hair and William S. Burns, Jr. of Marks, Gray, Conray & Gibbs; Martin J. Mickler, Jack W. Shaw, Jr. and Herbert R. Kanning of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Robert L. Cowles, Peter J. Kellogg, Jacksonville, for appellees.
   BOYER, Chief Judge.

From a final summary judgment entered in favor of appellees in a case sounding in negligence this appeal is taken. The broad issue is whether a general release given to certain named parties also released appel-lees who were not specifically named.

Appellant, a sign painter, was injured on July 12, 1972, when the handle of his paint roller came into contact with electrical lines owned and operated by appellees City of Jacksonville and the Jacksonville Electric Authority. The billboard on which appellant was working at the time of his injury was located on the property of the Thunderbird Motel, owned by appellee Southern Industrial General Corporation. Appellant received workmen’s compensation benefits paid by his employer’s insurance company, Commercial Union.

After filing the present action, appellant reached a settlement on June 30,1973 of his claim against the City of Jacksonville, the Jacksonville Electric Authority and the insurance carrier, Transportation Insurance Company. Appellant filed an action on July 9, 1973, to determine the pro rata amount of the settlement that Commercial Union Insurance Company would be entitled to by virtue of its status as the workmen’s compensation carrier. After a hearing, the trial court entered an order determining the pro rata amount which Commercial Union was entitled to, and ruling that any subsequent recovery which appellant might effect against appellee Southern Industrial General Corporation would be subject to an additional lien by Commercial Union.

Appellant filed an amended complaint which corrected the name of the defendant to Southern General Corporation. Travelers Insurance Company, Southern General’s insurance carrier, was added as an additional party. After Travelers answered the complaint, appellees filed a motion for leave to file a setoff of $30,000 which was the amount previously paid by the City of Jacksonville as the settlement. Appellees further requested leave to file a third party complaint against appellant’s employer. The trial court granted both requests. Ap-pellees filed an amended third party complaint, adding as additional parties Commercial Union, the City of Jacksonville, the Jacksonville Electric Authority, and CNA Insurance Company, then the insurer of the City and Jacksonville Electric. The last three named parties, in their answer to the amended third party complaint, pled the release of all claims which had been executed on July 30, 1973, as a complete bar to the third party complaint. They also moved for a summary judgment. Appellant filed a reply to the affirmative defense based on the release, alleging that none of the parties involved intended to release ap-pellees Southern General Corporation and Travelers Insurance Company. Appellees filed a motion to strike the reply which was granted by the trial court. The court then entered summary final judgment in favor of appellees.

The crucial aspect of this case is the trial court’s order striking appellant’s reply to the affirmative defense of release. If the reply was properly stricken, then the summary final judgment was appropriately entered. A contrary result necessarily follows from a determination that the appellant’s reply was improperly stricken.

According to the briefs filed by appellees City of Jacksonville and Jacksonville Electric Authority, the gravamen of the reply is that relief should be granted on the basis of a unilateral mistake of fact. Although normally a unilateral mistake will not provide a sufficient basis upon which to grant relief, a party may avoid the effect of a release on the basis of a unilateral mistake of fact in an appropriate case. See Florida Cranes, Inc. v. Florida East Coast Properties, Inc., Fla.App.3rd 1976, 324 So.2d 721.

The affirmative defense of release may also be successfully avoided on the ground of mutual mistake of fact. DeWitt v. Miami Transit Co., Sup.Ct.Fla.1957, 95 So.2d 898. To avoid a general release, a party must show that there was a mistake as to a past or present material fact at the time of the execution of the release. DSF, Inc. v. Beasley Crane Service and Sales, Inc., Fla.App.2d 1971, 251 So.2d 727, 729. It is clear, however, that there was no mistake of fact, either mutual or unilateral, in this case. Appellant and all the other parties to the release were undoubtedly aware at the time of the signing of the release that appellees Southern General Corporation and Travelers Insurance Company were potential defendants. Thus, appellant may not rely upon the mistake of fact theory to avoid the effect of the release as to appellees Southern General and Travelers.

In fact, closer examination of appellant’s reply reveals an entirely different theory. The reply asserts that plaintiff, City of Jacksonville, Jacksonville Electric Authority, and Transportation Insurance Company did not intend to release appellees Southern General and Travelers Insurance Company. Because the release is stated in clear and unambiguous terms, the determinative question thereby becomes whether appellant should be permitted to establish by parol evidence that the intent of the parties as to the effect of the release on parties not named in the release was other than as stated in the written document.

Under the general rules of evidence applicable to contract law, parol evidence is inadmissible to vary or contradict the terms of a clear and unambiguous instrument. As with any general rule of law, there are, of course, exceptions. One such exception, long recognized by Florida courts, is that the parol evidence rule only applies to parties to the contract or their privies, and not to a stranger thereto. Palmer v. R. S. Evans, Jacksonville, Inc., Sup.Ct.Fla.1955, 81 So.2d 635, 637. In such cases, the majority rule seems to be that the parol evidence rule is neither binding on nor available to the stranger, and it may not be properly invoked by him or properly invoked or relied on against him. 32A C.J.S. “Evidence” § 861, p. 227.

The query thus becomes, should appellees Southern General and Travelers Insurance Company, strangers to the release agreement, be allowed to invoke the parol evidence rule to prevent appellant from demonstrating that the parties who entered into the release did not intend to include appel-lees Southern General and Travelers within its scope? That exact question has never been resolved by an authoritative. Florida appellate decision, although the Third District Court of Appeal, under different factual circumstances, permitted a plaintiff to introduce parol evidence in an attempt to contradict the express terms of the release. Miami Beach First National Bank v. Tropical Park, Inc., Fla.App.3rd 1968, 215 So.2d 752.

Courts from numerous other jurisdictions have, however, considered the exact point at issue. See Annotation at 13 A.L.R.3d 313 (1967). Although there is a split of authority, the better view in such cases, and the view which we hereby adopt, is that parol evidence should be permitted to enable a plaintiff to demonstrate that a stranger to the release, expressed in general terms, was not intended by the parties to the release to be affected thereby. Illustrative of the trend toward acceptance of that position is the case of Knight v. Lowery, 1971, 124 Ga.App. 172, 183 S.E.2d 221, upon which appellees in their briefs rely. In that case, the Georgia Court of Appeals, in interpreting a general release virtually identical to the one contained in the case sub judice, held that plaintiff would not be allowed to contradict by parol evidence the terms of the written release which contained no obvious or latent ambiguities. The Supreme Court of Georgia reversed, holding that a stranger to the release would not be allowed to invoke the parol evidence rule to preclude a plaintiff from showing by parol evidence that the intent of the parties was other than expressed in the release. Knight v. Lowery, 1971, 228 Ga. 452, 185 S.E.2d 915.

We expressly refuse to find that any policy considerations exist which might militate against permitting parol evidence in such a factual situation. Indeed, appellees Southern General and Travelers Insurance have urged us in their brief to interpret the release as we would interpret any other contract, applying the same rules of interpretation. Appellees City of Jacksonville and Jacksonville Electric Authority suggest otherwise, and argue that permitting parol evidence to vary the unambiguous terms of the release would have a “chilling effect” on future settlements because if it were held that a release of all persons does not in fact release other unnamed potential defendants, then there would be no incentive or purpose for a defendant to settle. That argument is, at best, doubtful. First, we observe that many defendants enter into release agreements effective as to only them, and do not seek to have the release applied to all other potential defendants. Second, we take judicial notice of the fact that the terms of the release which apparently make the release effective as to all other persons, corporations, etc. are of the “boiler-plate” variety and may well be included in the release merely because the terms are part of the release form. Given our primary duty to interpret releases as well as all contracts so as to effectuate the intent of the parties, we see no harm in allowing appellant to show by parol evidence, if he can, that strangers to the release were not intended by the parties to be covered thereby.

By our holding, we do not find that appellant has established the allegation contained in his reply. We only hold that if appellant can establish by parol evidence that the parties did not intend for the release to affect appellees Southern General and Travelers Insurance Company, then the affirmative defense of release asserted by them may be avoided. The allegations contained in the stricken reply distinguish the case sub judice from Hester v. Gatlin, Fla.App.2nd 1976, 332 So.2d 660 and Dean v. Lifter, Fla.App.3rd 1976, 336 So.2d 393. In the former case, the issue of intent was apparently never raised, while in the latter case, the plaintiff did not allege, in contrast to appellant in the case sub judice, that all of the parties to the release intended that certain other potential defendants be excluded therefrom, but merely asserted that plaintiff alone intended that only one of the tortfeasors was to be released.

Therefore, since appellant’s reply to the affirmative defense of release was improperly stricken, final summary judgment should not have been entered. Accordingly, the cause is reversed and remanded for proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

SCHLEGEL, LEW E., Associate Judge, concurs.

McCORD, J., concurs specially.

McCORD, Judge,

concurring specially.

I agree with the ruling of the District Court of Appeal, Third District in Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3 DCA 1976), but I do not consider it applicable to the question presented here. There, the court stated that the issue of intent of the parties to the release did not govern the appeal. That was so because the court pointed out:

“. . . What the plaintiff is saying is that she made a unilateral mistake. The clear and unambiguous terms of a release may not be changed upon a claim of unilateral mistake where that mistake results solely from the want of due care and diligence exercised by persons of reasonable prudence under the same circumstances.”

In the case sub judice, appellant does not contend that there was a unilateral intent that the release not cover others who were not parties to it, but he contends (in his stricken reply to appellee’s affirmative defenses) that it was the intent of all parties to the release that Southern General Corporation and Travelers Insurance Company would not be released. While such allegation may be difficult to prove, we are here concerned only with whether or not appellant may be allowed to submit proof on such allegation. I agree with Chief Judge Boyer’s opinion that such proof should be allowed.

ON PETITION FOR REHEARING GRANTED

McCORD, Judge.

We have reconsidered the court’s opinion in this cause and have determined that we should recede therefrom. As pointed out in our previous opinion filed February 3, 1977, Eugene Quarterman (appellant) and the City of Jacksonville (appellee), Jacksonville Electric Authority (appellee), and the insurance carrier, Transportation Insurance Company, entered into a clear, unambiguous release not only of the City of Jacksonville and the Jacksonville Electric Authority but also of “all other persons, firms and corporations who might be liable.” Appellant contends that it was not the intent of the parties to the release to release “all other persons, firms and corporations who might be liable.” Appellant seeks to present parol evidence to show that these unambiguous terms in the release did not state the intent of the parties thereto — despite the fact that all parties to the release, except Quarterman, contend otherwise. Such parties argue that unless Quarter-man’s release is effective as to “all other persons, firms and corporations which might be liable” to him, they could be held liable for further damages as indemnitors of others against whom Quarterman might obtain judgments for the same accident. Thus, it was distinctly in the interest of such parties to the release that it release them not only as to their liability to Quar-terman, but also as potential indemnitors.

In our previous opinion sub judice, we held that the parol evidence rule may not be invoked by strangers to the transaction and thus allowed the parol evidence to be presented. But in these circumstances, such holding is tantamount to saying that parties to the release may not invoke the rule although they have a legitimate interest in upholding the release as to all others who might be liable. (If these parties had no legitimate interest in upholding the release as to third persons, there might be some validity in not allowing strangers to the release to invoke the parol evidence rule to their benefit. But such is not the situation here.) Were we to adopt Quarterman’s argument we would in effect rule that an injured plaintiff could not execute a release which would completely absolve a defendant from all liability for the plaintiff’s injuries.

Our original opinion pointed out that there is a split of authority in other jurisdictions on this question. Upon reconsideration, we now find the better view to be that the unambiguous terms of a release may not be varied by parol evidence where to do so could subject a party to the release to further liability for a plaintiff’s injuries. We therefore recede from our previous ruling in this cause to the contrary.

Affirmed.

RAWLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge,

dissenting.

I respectfully dissent. I adhere to our original opinion. In the foregoing opinion on petition for rehearing granted is found the sentence “Were we to adopt Quarter-man’s argument we would in effect rule that an injured plaintiff could not execute a release which would completely absolve a defendant from all liability for the plaintiff’s injuries.” The fallacy in that statement is that, as clearly appears from our original opinion, neither Quarterman nor the Circuit Judge intended that the “boilerplate language” in the executed release be applicable. The law is, in my view, and should be, that the intent of the parties prevails. All Quarterman seeks sub judice is an opportunity to prove that none of the parties intended the subject release to be effective to “all other persons, firms and corporations which might be liable”. Whether or not Quarterman can, in fact, make such proof to the satisfaction of a judge or jury is not our prerogative to determine. It is inconceivable to me, though, that he not be afforded the simple opportunity of proof and that the truth be thereby forever sealed from the trier of fact.

I would adhere to our original opinion and reverse.

      . The release stated, in pertinent part, that appellant does “. . . hereby release, acquitt and forever discharge CITY OF JAX, JACKSONVILLE ELECTRIC AUTHORITY, TRANSPORTATION INS CO and all other persons, firms and corporations who might be liable of and from any and all actions, causes or actions, claims, demands, damages, costs, loss of services, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from

      . The stricken reply alleges: “Neither the plaintiff, the City of Jacksonville, the Jacksonville Electric Authority or Transportation Insurance Company intended by the release referred to in defendants’ fifth defense, to release defendants Southern General Corporation, a Florida corporation and Travelers Insurance Company, and that no consideration was given in said release for the release of said defendants and plaintiff specifically denies that said release in any way released Southern General Corporation or the Travelers Insurance Company, as can be seen by this Court’s order dated July 23, 1973.”
      The release contains a second theory, i. e., that there was a lack of consideration as to Southern General and Travelers. The law in Florida is clear, however, that one may obtain the benefits of a release as a third party beneficiary, notwithstanding the fact that no consideration flows directly to that party. See Albert's Shoes v. Crabtree Construction Co., Sup.Ct.Fla.1956, 89 So.2d 491 and Hester v. Gatlin, Fla.App.2nd 1976, 332 So.2d 660.

      . The City of Jacksonville and Jacksonville Electric Authority, parties to the release, contend on this appeal that the release was applicable to Southern General Corporation and Travelers Insurance Company.


author: MAGER, Chief Judge. PER CURIAM. STETTIN, HERBERT, Associate Judge,

text:
    George Robert HOUSTON, Appellant, v. James R. CALDWELL, etc., et al., Appellees.
    No. 76-260.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 1977.
    Rehearing Denied May 6, 1977.

      Lewis S. Eidson, Jr. of Colson & Hicks, P. A., and Susan Goldman, Miami, for appellant.

      Marjorie D. Gadarian of Jones, Paine & Foster, P. A., West Palm Beach, for appel-lees.
   MAGER, Chief Judge.

This is an appeal by George Robert Houston, plaintiff below, from a final order granting the motion to dismiss of James R. Caldwell and Aetna Insurance Company, defendants below, such dismissal being based upon the doctrine of forum non con-veniens.

In the proceedings below plaintiff filed an action in tort in Palm Beach County, Florida against defendants based upon an automobile accident occurring in North Carolina. In his complaint plaintiff alleges that he is a resident of Highlands, North Carolina and the defendant, James R. Caldwell, is a resident of Palm Beach County, Florida. Defendants filed a “Motion to Dismiss and/or Abate” contending that “North Carolina is the place where the cause of action accrued and where the Plaintiff and witnesses to this incident are located. It will place undue hardship and injustice for these Defendants to defend this suit in Palm Beach County, Florida”.

An affidavit filed by defendant Caldwell and depositions taken before the court reflect that the plaintiff resides in North Carolina; the accident giving rise to the suit occurred in North Carolina; defendant resides in North Carolina six months out of the year; and all witnesses to the accident reside in North Carolina. The pleadings, affidavits and depositions further indicate that defendant Caldwell had established Florida as his residence, as reflected by: purchase of a condominium in Palm Beach County and the sale of a former residence in Wooster, Ohio; retirement from active business and intention to permanently reside in Florida; purchase of a summer residence in North Carolina; Florida voter registration; listing of Boca Raton, Florida as residence on personal federal income tax return; obtaining of Florida driver’s license and registration of automobile in Florida. It clearly appears, therefore, that defendant Caldwell is, as plaintiff alleged in his complaint, a resident of Palm Beach County, Florida.

Based primarily upon such factors as the place where the cause of action arose, the location of the witnesses and the summer residence of the defendant in North Carolina, the trial court dismissed plaintiff’s complaint without prejudice to re-file the suit in a more appropriate forum, presumably in Highlands, North Carolina. The plaintiff contends that the court’s order predicated upon the doctrine of forum non conveniens is erroneous because the doctrine is inapplicable where a defendant is a resident of the forum state (Florida) and furthermore, that defendants failed to prove the availability of an alternative forum.

The doctrine of forum non conven-iens which is grounded upon equitable considerations is based upon the concept that the court has the inherent power to decline jurisdiction over a cause even though jurisdiction does exist where, in the interest of justice and the convenience of the litigants, such cause should have been instituted in another forum. Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Adams v. Seaboard Coast Line Railroad Company, 224 So.2d 797 (Fla.1st DCA 1969). The application of the doctrine rests within the sound judicial discretion of the court tempered by the time-honored concept of “the interest of justice”. Gulf Oil Corporation v. Gilbert, supra; see also Southern Railway Company v. Bowling, 129 So.2d 433 (Fla.3d DCA 1961).

Although there are no exact criteria by which the doctrine can be measured, it clearly appears that there are two essential elements that must be present in order for the doctrine to be invoked: (1) the cause of action sued upon arose in a jurisdiction outside the forum state and (2) that there is another jurisdiction (outside of the forum) in which the defendant is amenable to process. But see Adams v. Seaboard Coast Line Railroad Company, supra. When these elements are present the court will undertake to evaluate a myriad of factors, the combination and weight of which, will ultimately determine the appropriateness of the doctrine. The Supreme Court of the United States in Gulf Oil Corporation v. Gilbert, supra, discusses some of the factors to be considered:

“. . .An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
“Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” (Emphasis added.) (330 U.S. 508-9, 67 S.Ct. at 843).

Much of the evolving case law has centered around the federal forum non conven-iens statute, 28 U.S.C. § 1404(a), which permits interstate as well as intrastate transfers of any civil action “for the convenience of parties and witnesses, in the interest of justice”. Florida, which enacted an intrastate venue statute, section 47.122, Florida Statutes, has by decisional law recognized interstate application of the doctrine. In Hagen v. Viney, 124 Fla. 747, 169 So. 391 (1936), the Supreme Court of Florida applied the doctrine of forum non conveniens when it concluded that:

“It is settled law that courts of one state are not required to assume jurisdiction of causes between nonresidents arising in other jurisdictions, though by the rule of comity rather than that of strict right they generally do so. After all is said, the question of jurisdiction in transitory actions between nonresidents is one of discretion on the part of the court assuming it, and no rule has yet been promulgated to guide that discretion. . . . ” (at 392-3).

Later Florida appellate decisions have given the Hagen decision a more restrictive reading by seemingly adding another element to the criteria heretofore discussed, i. e., residence of the parties. In Adams v. Seaboard, supra, the First District observed:

“. . .In the ultimate, however, it is seen that the application of the doctrine of forum non conveniens is restricted to the limited category of cases in which both parties to the action are nonresidents, and the cause of action sued upon arose in a jurisdiction outside of Florida. It is only after these two factors emerge and coalesce that the trial court is autho rized to proceed to a determination of whether the criteria necessary to bring into play the doctrine of forum non con-veniens have been met. . . (Emphasis added.) (224 So.2d at 801.)

See also Ganem v. de Issa, 225 So.2d 564 (Fla.3d DCA 1969); Southern Railway Company v. McCubbins, 196 So.2d 512 (Fla.3d DCA 1967); Atlantic Coast Line Railroad Company v. Ganey, 125 So.2d 576 (Fla.3d DCA 1960); Killingsworth v. Montgomery Ward & Company, 327 So.2d 50 (Fla.2d DCA 1976); cf. Morgan v. Ande, 313 So.2d 86 (Fla.4th DCA 1975).

Our reading of Hagen and our understanding of the doctrine as discussed in Gulf Oil Corporation v. Gilbert leads us to believe that residency of the parties is not an essential prerequisite to application of the doctrine. While the doctrine is one that should be carefully and cautiously applied since by its very application it deprives the plaintiff of choosing the forum in which the suit is filed, Greyhound Corporation v. Rosart, 124 So.2d 708 (Fla.3d DCA 1960); Atlantic Coast Line Railroad Company v. Ga-ney, supra, its flexibility should not be compartmentalized to the point where considerations of justice, fairness and convenience become subservient. The Adams rule would limit the doctrine to the category of cases in which both parties to the action are nonresidents (and the cause of action sued upon arose in a jurisdiction outside of Florida). If we were to follow Adams then the doctrine would not be applicable in the instant case because, although the cause of action arose in North Carolina both parties are not nonresidents; only the plaintiff is a nonresident. The other factors discussed in Gulf Oil Corporation could not even be considered because the “non-residency” requirement was not satisfied. Stated differently, unless both parties are nonresidents the doctrine is inapplicable.

Respectfully, we cannot ascribe to any ritualistic application of the doctrine of forum non conveniens where to do so would overlook considerations of justice, fairness and convenience. See Masington, “Venue in the Federal Courts — The Problem of the Inconvenient Forum”, 15 U.Miami L.Rev. 237 (1961). We would prefer an application where, for example, residency is treated as one of the factors to be considered together with a combination of other factors. The residence of one of the parties may well justify a non-application of the doctrine when such residence is considered together with other factors; likewise, the residency of one of the parties in the forum state may be outweighed by other relevant and pertinent factors justifying application of the doctrine.

The recent decision of the Court of Appeals of New York presents what we believe to be a more sensible application of the doctrine. In Silver v. Great American Insurance Company, 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972), speaking through Chief Judge Fuld, the New York court observed:

“. . . The question whether the principle of forum non conveniens should or should not be applied in such a case ‘is one’, we declared in Varkonyi v. Varig, 22 N.Y.2d 333, 337, 292 N.Y.S.2d 670, 673, 239 N.E.2d 542, 544, supra, ‘which is in general committed to the discretion of the courts below, to be exercised by reviewing and evaluating all the pertinent competing considerations.
“Further thought persuades us that our current rule — which prohibits the doctrine of forum non conveniens from being invoked if one of the parties is a New York resident — should be relaxed. Its application should turn on considerations of justice, fairness and convenience and not solely on the residence of one of the parties. Although such residence is, of course, an important factor to be considered, forum non conveniens relief should be granted when it plainly appears that New York is an inconvenient forum and that another is available which will best serve the ends of justice and the convenience of the parties. The great advantage of the doctrine — its flexibility based on the facts and circumstances of a particular case — is severely, if not completely, undercut when our courts are prevented from applying it solely because one of the parties is a New York resident or corporation.” (Emphasis added.) (328 N.Y.S.2d 402-403, 278 N.E.2d 621-622).

As Judge Fuld further observed, at p. 404, 278 N.E.2d at p. 623:

“. . . [SJtare decisis does not compel us to follow blindly a court-created rule —particularly one, as here, relating to a procedural matter — once we are persuaded that reason and a right sense of justice recommend its change.” (emphasis added.)

The threshold essentials for the applicability of the doctrine of forum non conveniens are: that the cause of action arose outside the jurisdiction of the forum state and that there are at least two forums in which defendant is amenable to process. Greyhound Corporation v. Rosart, supra. The absence of one of these two elements would preclude the application of the doctrine. Only when these two essentials are plead and proven would the court proceed further to examine and evaluate the myriad of factors discussed in Gulf Oil Corporation v. Gilbert, supra, basing its ultimate determination on “considerations of justice, fairness and convenience” (and not solely on the residence of one of the parties).

In the instant situation the trial court dismissed the action notwithstanding that defendant was not a nonresident. Seemingly this might suggest that the lower court’s ultimate disposition is consistent with this opinion (albeit for different reasons, Hampton Utilities Co. v. Hampton Homeowners Ass’n, 252 So.2d 286 (Fla.4th DCA 1971)) and should be affirmed. However, it is necessary to point out that the record below does not reflect the presence of sufficient pleadings and proof to support one of the essential threshold requirements, 1. e., that defendant is amenable to process in another forum. See Gulf Oil Corporation v. Gilbert, supra, and Greyhound Corporation v. Rosart, supra.

The burden is on the moving party to establish the existence and availability of another forum. See Ganem v. de Issa, supra. While the moving party need not negate the applicability of every possible affirmative defense, such as the statute of limitations (see Rule 1.110(d), Fla.R.Civ.P.), the moving party must affirmatively demonstrate the amenability to process in the other forum. An allegation of the moving party’s amenability to process in another forum, when supported by sufficient facts set forth in a pleading, affidavit or deposition, constitutes an adequate prima facie showing of amenability to process. The moving party’s initial burden can also be satisfied by an asserted willingness or consent to accept service of process in such other forum. A bare unsupported concluso-ry allegation in a motion or pleading is not sufficient.

Once the moving party (the defendant herein) has properly plead the existence of the essential threshold requirement, i. e., amenability to process, the burden then shifts to the other party (the plaintiff herein) to show that such essential requirement has not been met, i. e., defendant would not be amenable to process in the other state. The duty then evolves upon the court as the trier of fact to determine whether the moving party has by a preponderance of the evidence satisfied the essential threshold requirement(s). When this has been accomplished the court can then proceed to examine and evaluate those pertinent factors advanced by the parties (see Gulf Oil Corporation v. Gilbert, supra) for and against the application of the doctrine. As with the threshold requirements, the burden is on the moving party to show by a preponderance of the evidence that considerations of justice, fairness and convenience require the application of the doctrine of forum non conveniens.

In the instant situation our examination of the record leads us to conclude that defendants carried their burden in all respects except with regard to defendants’ amenability to service of process in Highlands, North Carolina. Nowhere in the record can we find any pleadings and proof bearing upon defendants’ amenability to service of process in the other forum.

Accordingly, the motion to dismiss must be vacated and set aside and the cause remanded to the trial court for such other proceedings as may be consistent herewith. Nothing herein is intended to preclude the trial court from conducting further proceedings on the issue of defendants’ amenability to service of process in Highlands, North Carolina, including, but not limited to, appropriate pleadings and proof thereon.

REVERSED AND REMANDED, with directions.

ALDERMAN, J., and STETTIN, HERBERT, Associate Judge, concur.

ON PETITION FOR REHEARING

PER CURIAM.

Rehearing denied.

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

STETTIN, HERBERT, Associate Judge, dissents, with opinion.

STETTIN, HERBERT, Associate Judge,

dissenting:

The appellant has filed a petition for rehearing directed to that portion of the opinion holding the doctrine of forum non conveniens applicable, even where one of the litigants is a resident of Florida. Upon reviewing the cases cited I agree with the appellant and would reverse and remand to the trial court for further proceedings.

The decisions in this state are unanimous in requiring a concurrence of nonresident parties and a cause of action which arose out of state before forum non conveniens may be invoked to obtain dismissal of the action; Hagen v. Viney, 124 Fla. 747, 169 So. 391 (1936); Atlantic Coast Line Railroad Company v. Ganey, 125 So.2d 576 (Fla.3d DCA 1960); Southern Railway Company v. McCubbins, 196 So.2d 512 (Fla.3d DCA 1967); Adams v. Seaboard Coast Line Railroad Company, 224 So.2d 797 (Fla.1st DCA 1969); Ganem v. deIssa, 225 So.2d 564 (Fla.3d DCA 1969); Shaw v. Seaboard Coast Line Railroad Co., 229 So.2d 275 (Fla.1st DCA 1969); Killingsworth v. Montgomery Ward & Co., 327 So.2d 50 (Fla.2d DCA 1976).

In Hagen v. Viney, supra, Justice Terrell specifically noted both of the parties were nonresidents. The progeny of this case have consistently accepted this requirement. Indeed, this Court did so in Morgan v. Ande, 313 So.2d 86 (Fla.4th DCA 1975), citing Adams v. Seaboard Coast Line Railroad Company, supra, with complete approval. See also Flota Mercante Gran Centroamericana v. Stena Shipping AB, 294 So.2d 98 (Fla.3d DCA 1974), and British-American Insurance Co., Ltd. v. Cladakis, 321 So.2d 448 (Fla.3d DCA 1975).

      . “In the exercise of such discretion, the trial court may consider whether the filing of the action constitutes forum shopping on the part of plaintiff; whether it constitutes undue harassment of the defendant by requiring him to litigate the action in a forum remote from where it accrued or where the defendant resides or maintains a place of business; and, whether the convenience of the parties and witnesses, in the interest of justice, requires the action to be litigated in a different forum. .” Adams v. Seaboard Coast Line Railroad Company, 224 So.2d 797, 800-801. See additional discussion, infra.

      . It might be well to point out that we are not confronted with a Supreme Court precedent with which this decision conflicts. Cf. Jones v. Hoffman, 272 So.2d 529 (Fla. 4th DCA 1973), and Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). On the contrary, we perceive our decision to be compatible with Hagen v. Viney, supra, and consistent with justice and logic. See also Meily v. Agricultural Investment Corporation, S.A., 276 So.2d 161 (Fla.1973).


author: PAUL, MAURICE M., Associate Judge.

text:
    Kurt VERSEN, Appellant, v. Helen A. VERSEN, Appellee.
    Nos. 76-62, 76-2124.
    District Court of Appeal of Florida, Fourth District.
    March 4, 1977.

      S. Robert Zimmerman, P.A., Pompano, for appellant.
    David B. van Kleeck of Tylander, de-Claire, Becker & van Kleeck, Chartered, Boca Raton, for appellee.
   PAUL, MAURICE M., Associate Judge.

This is an appeal from that portion of final judgment of dissolution of marriage awarding the wife lump sum alimony, periodic alimony, a finding of “special equity” in the husband’s property, and awarding wife certain real property in a corporation named Kurver Investments, Inc., which corporation was not a party to the instant lawsuit. This appeal is also from certain orders and judgments “clarifying” the original final judgment.

A little background information is in order. The parties were married on August 4, 1953. In October 1973, the wife filed for dissolution of the marriage in Broward County. Final hearing was set for February 15, 1974 but the wife took a voluntary dismissal thereof, without prejudice, on February 11, 1974. On the same day she took her voluntary dismissal in Broward County, the wife filed an action for “alimony unconnected with divorce” in the Circuit Court of Palm Beach County, which was transferred to Broward County on husband’s motion for change of venue. While the foregoing litigation was in process, the wife also filed an action against the husband, Amdico Corporation, and one Walter Sylvester, to set aside a certain conveyance. Finally, on April 1, 1974, the husband filed his petition for dissolution of marriage. On May 19, 1975, an order was entered dismissing all of the lawsuits filed by the wife, and allowing her “. . . if she is so advised, many set forth in her pleadin [sic] in this cause as a Counter Claim or otherwise all or any of her allegations in the above stated causes. The Wife’s pleadings shall be filed and served pursuant to the Rules within Twenty (20) days from the date of this Order and thereafter all of said issues will be determined in this cause to the extent that the Wife may so plead.” (emphasis supplied.)

On June 5,1975, the wife, pursuant to the last quoted order, supra, filed an Answer to husband’s Petition for Dissolution, admitting the marriage, denying specifically that it was irretrievably broken, and sought no affirmative relief such as for alimony, special equity, attorney fees, or suit money. The wife also filed a Counterclaim in two counts seeking, in Count One, “alimony unconnected with dissolution” as provided in section 61.09, Florida Statutes, and in Count Two, to set aside conveyance of certain described personal property.

Upon the issues joined by the pleadings, final hearing commenced on August 4,1975. The first witness called was to corroborate the husband’s residence. Next, the husband testified as to his age, 74 and his wife’s age, 68, identified his previously prepared financial affidavit, described the standard and manner of living he and his wife had shared, and told why the marriage was irretrievably broken. Upon cross-examination, when the wife’s attorney started inquiring as to the husband’s assets, the husband’s attorney objected, stating, “. I don’t think it is material, in my opinion, whether this man’s assets are three hundred and two thousand dollars or whether they are three hundred and fifty thousand dollars for the purpose of this Court in making an award of alimony, and that is all that is requested in this lawsuit.” After this statement, the following colloquy took place:

“MR. VAN KLEECK: Well, Judge, we have pending a separate maintenance suit, that is correct. Mr. Versen has pending a divorce action. I think it’s apparent from his attitude that he is a bitter and hostile old man and nobody is going to live with him. It is probably likely the Court is going to grant a divorce.
If the Court does, I claim that she is entitled to a property division, and I want the Court to understand fully—
MR. ZIMMERMAN: Where did you claim that?
MR. VAN KLEECK: What? I don’t have to claim it.
MR. ZIMMERMAN: I don’t know of any such claim, your Honor. I’m going by the pleadings.
MR. VAN KLEECK: He has a suit for divorce here. You’re saying that the Court should award alimony and not consider property division.
MR. ZIMMERMAN: Are you praying for it? Did you ask for it? You have to ask for it to get it.
MR. VAN KLEECK: Excuse me, I thought that was in your prayer, is it not?
MR. ZIMMERMAN: All we’re asking for is a dissolution, a very simple complaint. There’s no counterclaim for property division. To make it very simple, your Honor, it’s our contention that these parties own certain properties as tenants by the entireties.
THE COURT: By action of law, tenants in common.
MR. ZIMMERMAN: Tenants in common.
MR. VAN KLEECK: She has equity in his property other than that which the testimony is going to bring out.
MR. ZIMMERMAN: I’m going to object to it. There is no pleading for it. I am not prepared for that after two years.
MR. VAN KLEECK: Your Honor, I submit that the only proper course for the Court in this kind of situation is to determine the property rights of the parties when the divorce is asked for and the Wife is seeking support. If the Court feels it can’t, I’m happy to amend them to comply with the evidence at this point.
Now, it’s apparent that he has substantial properties, and she has a marriage of long standing here. I think it’s apparent from the evidence that I am prepared to offer that she has an equitable interest in several of the properties. It’s not simply a matter of the Court granting a divorce and leaving the property at the operation of the law.
THE COURT: Are you moving to amend?
MR. VAN KLEECK: If the Court feels necessary.
MR. ZIMMERMAN: I’m going to object to any amendment, your Honor. This case is two years old and has been on the calendar a long time. My client is 74 years old. Any amendment at this time would require a continuance. He doesn’t plead anything like that.
MR. VAN KLEECK: Your Honor, we have been going back and forth during two years to find exactly what his assets and liabilities are and obligations are, and so forth. This case is fully prepared for trial. This is no surprise to anybody.
THE COURT: Motion to Amend will be granted. Proceed.
MR. ZIMMERMAN: Note my objection, then, your Honor. If it’s not in any pleadings and if he’s amending his pleadings, it’s on his part of the case and not mine. All I’m asking for is a divorce right now.
THE COURT: It would be in his part of the case, yes, but in light of this exhibit that has been entered, that’s the question now, the assets of Kurver Investment and the common stock. Proceed.
MR. ZIMMERMAN: Wait a minute. Then is she claiming a special equity in the corporate property?
MR. VAN KLEECK: Yes.
MR. ZIMMERMAN: I’m going to object to that now, your Honor. The corporation is not a defendant.
MR. VAN KLEECK: Not in the corporate assets, per se, but in the stock of the corporation which he owns.
THE COURT: The stock in the corporation he owns? I understand that.
MR. ZIMMERMAN: Okay.
THE COURT: Proceed.
MR. VAN KLEECK: Thank you, your Honor.
THE COURT: Objection overruled.”

Although many points are raised on this appeal, they all need not be reached by this Court since we are of the opinion that the lower court erred when it permitted the wife to amend her Counterclaim, over objection, during the trial which in effect allowed the introduction of a new and distinct cause of action on her behalf. If amendment was to be permitted at this late stage of the proceedings, minimum due process would dictate that a continuance be offered or granted.

Although F.R.Civ.P. 1.190, and the cases interpreting and construing it, dictate a liberality on part of the trial judge in granting motions to amend, Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla.1st DCA 1975), this “liberality” gradually diminishes as the case progresses to trial, United States v. State, 179 So.2d 890 (Fla.3d DCA 1965). Also, this rule of liberality does not authorize a party to state a new and different cause of action under guise of an amendment, or if it will change the issue, introduce new issues, or materially vary the grounds of relief, United States v. State, supra, and such amendments must not prejudice the opposing party, Tucker v. Daugherty, 122 So.2d 230 (Fla.2d DCA 1960). It is also true that the trial judge’s conclusion to permit or refuse amendment to pleadings will not be disturbed on appeal in absence of some demonstration that he has abused his discretion. See, Houston Texas Gas & Oil Corporation v. Hoeffner, 132 So.2d 38 (Fla.2d DCA 1961), and Joseph T. Miller Construction Company v. Borak, 82 So.2d 147 (Fla.1955).

Under the facts of this case, the lower Court abused its discretion in permitting the amendment as it prejudiced the appellant in his ability to adequately prepare a defense to the new claims for lump sum alimony, special equity in husband’s properties, and seeking to have a corporation, not a party to the proceedings, be subject to the court’s judgment. Since the amendment was improper, the supplementary judgments and orders modifying or explaining it are also reversed.

The interests of justice would be best served by permitting the trial court, on remand, to allow written amendments to the pleadings and then to proceed to a full determination of the issues made between the parties rather than simply affirm the dissolution of the marriage and the award of periodic alimony and reverse the remainder of the judgment.

This Court expresses no opinion on the issues of lump sum alimony, a finding of special equity in the husband’s properties, or in awarding the wife specific corporate assets when the corporation was not a party to the proceedings.

The final judgment appealed from, together with all modifications and clarifications, is AFFIRMED as to the dissolution of the marriage and is REVERSED in all other particulars.

AFFIRMED, in part; REVERSED, in part; REMANDED for further proceedings in accordance with this opinion.

CROSS, J., and CARLTON, CHARLES T., Associate Judge, concur.


author: DOWNEY, Judge.

text:
    Lester L. WOJCIK and Lester L. Wojcik, as Administrator of the Estate of Paul Leslie Wojcik, Deceased, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, etc., Appellee.
    No. 76-1211.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Rehearing Denied May 23, 1977.
    Richard W. Bates and Robert H. Roth, Orlando, for appellant.
    John W. Bussey, III, of Smalbein, Eu-bank, Johnson, Rosier & Bussey, Orlando, for appellee.
   DOWNEY, Judge.

Two questions are presented on this appeal. We deem it appropriate to discuss only the first:

“Are parents of a deceased entitled to recover for their mental pain and anguish as a result of the death of their son where he is not a minor?”

Appellant’s adult son was killed in an automobile accident. In a complaint filed by appellant as the deceased’s administrator it was alleged that the sole survivors of the deceased were his mother and father; that the son had lived with his parents and that each parent depended upon the son for services. Among other things, the complaint sought to recover damages for the pain and suffering of the parents resulting from the loss of their son. The trial court struck the claim for pain and suffering, and that judicial act is the assigned error to which we address ourselves.

In a nutshell, appellant contends that in consolidating survival and wrongful death actions into the Florida Wrongful Death Act (Section 768.16-768.27, Florida Statutes (1975)), the Legislature intended to establish a cause of action in a decedent’s survivors for their pain and suffering to replace the old cause of action which existed under the survival statute for the pain and suffering experienced by the deceased prior to his demise. In support of that position, appellant relies on certain statements made in recent appellate decisions. For example, in Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975), in discussing damages recoverable under the new act the Supreme Court said:

“In merging the two prior actions, the legislature transferred the items of damage for loss of earnings, medical expenses, and funeral expenses from the survival statute to the new Wrongful Death Act. The claim for pain and suffering of the decedent from the date of injury to the date of death was eliminated. Substituted therefor was a claim for pain and suffering of close relatives, the clear purpose being that any recovery should be for the living and not for the dead.
* * * * * *
“Concerning the second contention, we believe that the new right of surviving close relatives to recover for their own pain and suffering brought about by the wrongful death of a decedent is a reasonable alternative to dividing among the survivors the amount formerly recoverable under Section 46.021, Florida Statutes, for the decedent’s pain and suffering, if any.” (Emphasis supplied.)

Following Martin the Supreme Court, in White v. Clayton, 323 So.2d 573 (Fla.1976), stated:

“The second issue concerns the right of the legislature to modify the prior wrongful death cause of action. An action for wrongful death was not authorized at common law, and is a creation of the legislature. We recognize that there is a change in the elements of damage recoverable under the new act. In summary, individual pain and suffering for close relatives is added, while damages are eliminated for both the decedent’s pain and suffering and the loss of net accumulations for beneficiaries other than the surviving spouse and lineal descendants.” 323 So.2d at 575. (Emphasis supplied.)

Then, in Alexander v. Alterman Transport Lines, Inc., 327 So.2d 860 (Fla. 1st DCA 1976) the court used the Martin terminology almost verbatim as follows:

. . The Supreme Court in the aforementioned case held that the provisions of the Survival Statute, Section 46.-021, Florida Statutes, were consolidated with the new Wrongful Death Act of Florida, Sections 768.16-768.27, Florida Statutes; that the claim for a decedent’s pain and suffering was eliminated and that there was substituted the claim of pain and suffering for close relatives of the decedent.” (Emphasis supplied.) 327 So.2d at 860-861.

A fair reading of the cited cases and the Florida Wrongful Death Act leaves little doubt in our mind that the term “close relatives” initially used by Chief Justice Overton in Martin was not intended to be an accurate specification of the persons who can recover pain and suffering for wrongful death. In context “close relatives” is a collective phrase intended to describe certain survivors whom the Act authorizes to recover for pain and suffering, viz., a surviving spouse, minor children of the decedent, and each parent of a deceased minor child, 768.21(2), 768.21(3) and 768.21(4). Without question the recovery for mental pain and suffering is limited by the Act to those categories.

Bassett v. Merlin, 335 So.2d 273 (Fla.1976), resolved any uncertainty as to the meaning of the Martin case insofar as the right of the surviving parents of adult offspring to recover damages for their own mental pain and suffering is concerned. In the Bassett case the Supreme Court affirmed a circuit court ruling that Section 768.21 was constitutional even though “it denied parents of an adult child the right to damages for mental pain and suffering.” 335 So.2d at 274.

Accordingly, the answer to the question involved in the first point on appeal is in the negative, and the trial court was correct in striking appellant’s claim for damages for pain and suffering.

Appellants second point is without merit.

AFFIRMED.

CROSS and LETTS, JJ., concur.


author: DAUKSCH, Judge.

text:
    Thomas W. MYERS, Jr., et al., Appellants, v. STATE of Florida, Appellee.
    Nos. 76-1102, 76-1110 and 76-1111.
    District Court of Appeal of Florida, Fourth District.
    April 15, 1977.
    Jeffrey R. Jontz of Young, Turnbull & Linscott, P. A., Orlando, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

The Appellants here raise three issues for our consideration, only one of which we feel is worthy of relief. Each of the Appellants were sentenced to terms of probation after pleas of guilty to a charge of conspiracy to commit grand larceny. That charge is a first degree misdemeanor. It is therefore punishable by no more than one year imprisonment. As has been stated before the maximum term of probation and incarceration to which a court may sentence a person cannot exceed, in the aggregate, the amount to which the court could sentence that person to incarceration. Therefore to sentence these Defendants to more than one year on probation or more than one year of probation and incarceration is illegal. Holmes v. State, 343 So.2d 632 (Fla. 4th DCA, Opinion filed February 11, 1977); State v. Jones, 327 So.2d 18 (Fla.1976); Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Magnin v. State, 334 So.2d 638 (Fla. 2d DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976).

The sentence of Thomas W. Myers, Jr. is hereby modified by reducing it to four months probation after he completes his eight months in the county jail. The sentence of Carson Myers is hereby modified by reducing it to six months probation after he completes his six months in the county jail. The sentence of John Sutton is hereby modified by reducing it to 305 days probation after he serves his 60 days in the county jail.

AFFIRMED AS MODIFIED.

DOWNEY and ANSTEAD, JJ., concur.


text:
    Dale Patton WEBB, Appellant, v. STATE of Florida, Appellee.
    No. 75-1461.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Rehearing Denied July 29, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Tatjana Ostapoff and Mitchell J. Beers, Asst. Public Defenders, and Harry Weaver, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony C. Musto and Harry M. Hi-pler, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant Dale Webb was convicted of robbery and false imprisonment. He was sentenced to life imprisonment on the first charge and to fifteen years imprisonment on the second. On appeal he contends that the trial court committed error by a) allowing the prosecutor to impeach appellant by his silence after arrest and b) admitting evidence of an unrelated crime.

The evidence disclosed that Steven Almond, Dickey Farliss, and Indian Bill went to a party at a house in Orlando which was also attended by several members of the Outlaw Motorcycle Club. Initially, Almond remained outside. When he entered he found Dickey and Indian Bill on the floor with guns held to their heads. Webb was directing the proceedings. Eventually Almond was robbed, and he and the other two men were put in a van and taken away. As the van was being driven at high speed on the turnpike, Almond jumped from the van. He was ultimately able to contact the Highway Patrol. From information furnished by Almond, a Bolo was issued for a van matching the description of Webb’s van.

At trial Webb called as a defense witness Lt. Windham of the Orange County Sheriffs Department. Windham testified that about the time the Bolo had been issued in June 1974, Webb contacted him and inquired why he had been stopped several times recently. Webb invited Windham to inspect his van if he cared to.

Webb took the stand and testified that, after he read the article in the paper in June 1974 about the incident giving rise to this case, he talked to Lt. Windham, whom he knew, and inquired about the incident and offered his van for inspection. He did this because he was not involved and he was leaving town and did not want any trouble in his absence. Webb testified further that he did not attend the party where the incident took place, as he was at Monroe’s Cycle Shop in Orlando that entire afternoon. (Mr. and Mrs. Monroe had earlier testified concerning Webb’s presence at their shop.)

On cross-examination the prosecutor asked Webb if he had told the police when he was arrested about being at Monroe’s Cycle Shop the afternoon the alleged crimes were committed. Webb responded:

“A Well, sir, I didn’t tell the police anything because I have come to a realization that I just do not, I don’t talk to the police when it involves anything that has to do with the possibility of me going to jail.
“I have a lawyer sitting over there, Mr. Adams, and he talks to the police for me.”

Webb now contends that it was fundamental error for the prosecutor to have inquired as to his remaining silent when arrested in February 1975. But the state counters with the argument that a) Webb opened the door to this interrogation by adducing testimony about his conversation with Lt. Wind-ham in June 1974, and b) since the record is silent as to whether Webb was read his Miranda rights in the police station the state is free to comment on his silence. We agree with appellant’s position and disagree with the state’s.

To begin with, the testimony which Webb adduced had to do with a voluntary conversation some seven months before he was arrested and prior to any investigation zeroing in on him. The offensive inquiry by the prosecutor deals with Webb’s silence after his arrest when he had a constitutional right to remain silent. Thus, we hold that the testimony of the June 1974 conversation did not open the door for the prosecutor to cross-examine Webb about his silence upon being arrested.

The second facet of the state’s argument in support of the validity of its cross-examination is more serious.

In its brief the state contends that the record does not reflect any Miranda warnings were given to Webb when he was arrested in February 1975. The record is, in fact, silent as to whether they were given or not given. In sum, it appears to be the state’s position that, if Miranda warnings are not given to a person arrested and that person chooses to remain silent, the state is at liberty at trial to attempt to impeach the defendant with that silence if he- takes the stand and makes some exculpatory explanation. In support of that proposition the state cites Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), wherein in a dissenting opinion, joined by Justices Blackman and Rehnquist, Justice Stevens indicates the state might properly seek to impeach a defendant’s exculpatory testimony at trial by showing his prior inconsistent silence at the time of arrest.

In response to that connection we would first point out that the opinion cited is a dissent. Secondly, Doyle received Miranda warnings, so the point was not before the Court. Thirdly, the Doyle majority rested its decision on a dual aspect, a) the inquiry relative to silence after Miranda warnings constitutes an impermissible incursion into the constitutional privilege against self-incrimination; b) Doyle’s silence was not inconsistent with his exculpatory statement at trial and so the fact that he was silent was not admissible. Furthermore, we note that, while Miranda warnings make it even more offensive to use a person’s silence upon arrest against him, the absence of such warnings does not add to nor detract from an individual’s Fifth Amendment right to remain silent. If one has a right upon arrest not to speak for fear of self-incrimination, then the mere fact the police call his attention to that right does not elevate it to any higher level. If it were otherwise, an ignorant defendant who was advised of his right to remain silent would be protected against use of his silence to impeach him at trial; but an educated, sophisticated defendant familiar with his right to remain silent who was not apprised of that right by the police would be subject to impeachment for the exercise of a known constitutionally protected right.

In passing, we note that the case of Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977), applied the rule of Doyle and United States v. Hall, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); to a situation which did not involve Miranda warnings. In the Weiss case the prosecutor in the interrogation of the defendant and in closing argument commented on defendant’s failure to rush to the State Attorney before he was arrested and explain his position. These comments were held to require reversal.

Finally, the Hale court makes it quite clear that if the circumstances are such as to warrant an inquiry into a defendant’s silence at the station house there is always a threshold question to be determined by the court: is the exculpatory statement actually inconsistent with the defendant’s prior silence? 426 U.S. at 176, 95 S.Ct. 2136. If it is not, then it is inadmissible even without the protection of the Fifth and Fourteenth Amendments. For an example of lack of inconsistency see Grunewold v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). In the present case we think there was nothing inconsistent with Webb’s police station silence and his alibi testimony at trial, and we also think the cross-examination as to appellant’s pretrial silence violated the due process clause of the Fourteenth Amendment, Smith v. State, 340 So.2d 930 (Fla. 4th DCA 1976). For these reasons the judgment and sentence must be reversed for a new trial.

Since this case must be tried again, we will treat appellant’s second point on appeal.

It will be recalled there were two other persons with Almond who were taken away in the van, Dickey and Indian Bill; all three were the subject of appellant’s criminal conduct, according to the testimony. At trial a deputy sheriff was asked by the state whether he had obtained any information about Dickey and Indian Bill and he stated:

“ . . .No information has been received from any law enforcement agency. I have been in contact with the families of both persons.
“Q Have you been able to locate them?
“A No, sir.”

Webb contends that this inquiry was inadmissible because it introduced evidence of another crime into the case. We reject that contention. Dickey and Indian Bill were actually involved with Almond as subjects of the crimes perpetrated. Therefore, testimony relative to their involvement at the time of the commission of the crime was clearly part of the res gestae and admissible. Graives v. State, 127 Fla. 182, 172 So. 716 (1937); Powell v. State, 131 Fla. 254, 175 So. 213 (1937). In addition, it was not only proper but expedient for the prosecutor to account for the absence of two eyewitnesses to the crimes on trial in order to preclude the oft used defense tactic during closing argument of questioning why the state did not bring in such material witnesses to assist the jury in arriving at the truth. Thus, we find no merit in appellant’s second point on appeal.

The judgment and sentence appealed from are reversed and remanded for a new trial.

REVERSED AND REMANDED.

CROSS, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    PHILLIPS PETROLEUM COMPANY OF BARTLESVILLE, OKLAHOMA, d/b/a Pier 66, Appellant, v. Shirley DORN et vir., etc., Appellees.
    No. 76-270.
    District Court of Appeal of Florida, Fourth District.
    May 27, 1977.
    Harry G. Carratt, of Morgan, Carratt & O’Connor, P.A., and Andrews & Lubbers, P.A., Fort Lauderdale, for appellant.
    Irving J. Whitman, of Whitman-& Wolfe, P.A., Miami, for appellees.
   PER CURIAM.

Upon review and consideration of the briefs and record on appeal and oral argument we are of the opinion that the final judgment should be reversed.

The issue in this appeal relating to the granting of a new trial to plaintiff-appellee on damages only was not (and undoubtedly could not have been) previously considered by this court at the time of a similar earlier appeal because of this court’s specific admonitions set forth in its decision. See Phillips Petroleum v. Dorn, 292 So.2d 429 (Fla. 4th DCA 1974) citing Clement v. Aztec Sales, Inc., 283 So.2d 68 (Fla. 4th DCA 1973). The Supreme Court of Florida has, since our holding in Dorn, supra, reversed Clement v. Aztec Sales, Inc., supra, thereby removing a legal obstacle which we found to exist when we rendered our decision in Dorn. See also Bowen v. Willard, 340 So.2d 110 (Fla.1976).

Accordingly, we hold that the granting of a new trial to plaintiff on the issue of damages only is properly before this court for its consideration at this time; and based upon the other relevant portions of our decision in Dorn, supra, relating to jury instructions, and Clement v. Aztec, supra, the final judgment is reversed with directions to grant plaintiff a new trial on the issues of liability and damages.

REVERSED, with directions.

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

      . It should be noted that the briefs of both parties submitted in the former appeal attempted to present an argument to this court on the issue of the granting of a new trial to the wife for damages only; however, this court specifically declined to consider this issue for the reasons hereinabove set forth. Cf. Perkins v. Pare, Fourth District Court of Appeal, Case Ño. 76-1755 opinion filed April 1'5, 1977.


text:
    RESNICK DEVELOPERS SOUTH, INC., and Jack Resnick & Sons of Florida, Inc., a Florida Corporation, Appellants, v. BRIDGE LUMBER CO., a Florida Corporation, Appellee.
    No. 76-1435.
    District Court of Appeal of Florida, Third District.
    June 14, 1977.
    Rehearing Denied July 18,1977.
    Abrams, Anton, Robbins, Resnick & Schneider and David L. Kline, Hollywood, for appellants.
    Savitt, Kotzen, Riskin & France, North Miami Beach, and Martin G. Brooks, Hollywood, for appellee.
    Before BARKDULL and NATHAN, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Boyer v. Dye, 51 So.2d 727 (Fla.1951); Yost v. Miami Transit Company, 66 So.2d 214 (Fla.1953); Harrison v. Consumers Mortgage Company, 154 So.2d 194 (Fla. 1st DCA 1963).


text:
    Al J. SCHECHTER, Trustee, Appellant, v. Jean K. HORN, Appellee.
    No. 75-935.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied July 29, 1977.
    Maurice M. Garcia, of Abrams, Anton, Robbins, Resnick & Schneider, Hollywood, for appellant.
    George I. Platt, of Becker & Poliakoff, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed and remanded for further proceedings consistent with our opinion in Diamond v. Woodlands Homeowner’s Association, Inc., 348 So.2d 8 (Fla. 4th DCA, opinion filed June 10, 1977).

REVERSED and REMANDED.

CROSS and ALDERMAN, JJ., and NE-WELL, EMERY J., Associate Judge, concur.


text:
    Hector GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-468.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Rehearing Denied July 29, 1977.
    Frank A. Kreidler, Belle Glade, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Hogan v. State, 330 So.2d 557 (Fla. 2d DCA 1976) and Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973).

DOWNEY and DAUKSCH, JJ., concur.

ANSTEAD, J., concurs in result only.


text:
    Willie James BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 76-682.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1977.
    Willie James Brown, in pro per.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This Court sua sponte withdraws the judgment and opinion filed on June 3, 1977, and replaces it with the following opinion.

Affirmed on authority of Scott v. State, 345 So.2d 414 (Fla.2d DCA 1977).

AFFIRMED.

DOWNEY, ANSTEAD and LETTS, JJ., concur.


text:
    Antonio DO COUTO et ux., Appellants, v. ITT COMMUNITY DEVELOPMENT CORPORATION, Appellee.
    No. DD-22.
    District Court of Appeal of Florida, First District.
    June 20, 1977.
    Rehearing Denied Aug. 4, 1977.

      Michael D. Chiumento, Flagler Beach, for appellants.
    Philip J. Chanfrau, Jr., Daytona Beach, for appellee.
   PER CURIAM.

Appellant Antonio Do Couto who, a reading of the record readily reveals, experiences some difficulty with the English language, first discussed the purchase of a lot from appellee with appellee’s New Jersey salesman. Do Couto explained in detail his intended use of the lot and the salesman understood the intended use and purpose. That salesman arranged for Do Couto to meet with appellee’s on-site salesman in Florida who was also told, and understood, Do Couto’s needs and requirements. After visiting numerous lots in the company of the on-site salesman Do Couto was finally shown a corner lot which the salesman measured with the help of Do Couto and represented to Do Couto that the lot was suitable for Do Couto’s needs and purposes. In an abundance of precaution, before commencing construction, Do Couto conversed with his neighbors and finally went to the Flagler County Courthouse to ascertain whether there were any governmental permits which would be required before construction was commenced. Alas, however, it now appears that although Do Couto told two ITT salesmen exactly what he intended to build, that he made inquiry to determine whether there were any governmental permits required for such building, and he has now built exactly what he intended to build (a large double garage) a mandatory injunction has been entered by the trial court, at the instance of ITT, and not Do Couto’s neighbors, requiring removal of the improvement because it violates set-back lines. A witness called by ITT, one of its agents, who had never seen the offending improvement, testified that it did violence to ITT’s scheme of development. An architect, called by appellant, who had personally examined the lot, structure and surrounding area testified that the improvement was not offensive and damaged neither Do Cou-to’s lot nor the community. It is significant, we think, that the complainant is ITT and not Do Couto’s neighbors.

The remedy of injunction is drastic and should be granted cautiously and sparingly. Johnson v. Killian, 157 Fla. 754, 27 So.2d 345 (1946). The learned trial judge applied cold legal tenents instead of engaging in a balancing of the equities. See Ortega Company v. Justiss, 175 So.2d 554 (Fla. 1st DCA 1965). No detriment has been suffered by ITT nor will it enjoy any advantage by a removal of the improvement. On the other hand, by requiring Do Couto to remove the improvement he will have been deprived of the purpose for which the property was initially acquired, with the knowledge of ITT, and will suffer a monetary loss of between $10,000 and $22,000. Equity is not so cold.

Reversed and remanded with directions to vacate the mandatory injunction and to enter judgment in favor of appellants.

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


author: BOYER, Chief Judge.

text:
    CAVALIER INSURANCE CORPORATION, Appellant, v. Clarence MYLES, Appellee.
    No. FF-169.
    District Court of Appeal of Florida, First District.
    June 24, 1977.
    Rehearings Denied July 26, 1977.

      Jeffrey A. Cramer of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Pensacola, for appellant.
    Roderic G. Magie of Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for appellee.
   BOYER, Chief Judge.

This is an interlocutory appeal by Cavalier Insurance Corporation, the defendant in the trial court, from an order granting the plaintiff’s motion for summary judgment on the issue of coverage (liability). The appeal involves an interpretation of the so-called no-fault law, §§ 627.730-627.741, Florida Statutes 1975.

Both parties moved for summary judgment, the defendant contending that as a matter of law it was entitled to a summary judgment that there was no coverage. The court entered an order granting the plaintiff’s motion for summary judgment on the issue of insurance coverage, therefore liability. This interlocutory appeal ensued.

The facts are not in dispute. Cavalier issued an automobile insurance policy to Lewis Ralph Myles, Jr., which policy included the statutory no-fault benefits. Clarence Miles, plaintiff in the trial court and appellee here, was a relative of, and resided in the same household with, the named insured and was not the owner of a motor vehicle. The plaintiff, while riding a bicycle in Escambia County, Florida, was struck by an automobile and was injured. The automobile which struck the plaintiff was a 1970 Ford “Bronco” which was licensed and registered in the State of Alabama. The plaintiff sought payment of personal injury protection benefits pursuant to his relative’s insurance policy with Cavalier. Cavalier contends that since the Bronco was registered in Alabama and not in Florida the plaintiff’s injury was not caused by physical contact with a “motor vehicle” and that therefore PIP benefits are not payable.

Section 627.736(4)(d)(l), Florida Statutes (1975), provides that the insurer of the owner of a motor vehicle shall pay personal injury protection benefits for accidental bodily injury sustained in this state by the owner while occupying a motor vehicle or, while not an occupant of a motor vehicle or motorcycle, if the injury is caused by physical contact with a motor vehicle. Subsection 3 of § 627.736(4)(d) gives to a relative of the owner residing in the same household the same benefits as the owner, provided the relative at the time of the accident is not himself the owner of a motor vehicle with respect to which security is required. Accordingly, personal injury protection benefits are payable to a relative of the owner residing in the same household for bodily injury sustained in this state while not an occupant of a motor vehicle or motorcycle if such relative’s injury is caused by physical contact with a motor vehicle.

The parties agree that the plaintiff did not own a motor vehicle and that he was not an occupant of a motor vehicle or a motorcycle at the time of the collision. Therefore, the plaintiff is entitled to recover no-fault benefits in this case, but only if the injury is caused by physical contact with a motor vehicle.

In Deel Motors, Inv. v. Carrington, 305 So.2d 811 (Fla. 3rd DCA 1975), cert. den. 315 So.2d 197 (Fla.1975), our sister court considered the question of what constituted a “motor vehicle” as defined by F.S. 627.-732(1), and there decided that a new, unregistered, although otherwise registerable, station wagon which was taken out of an automobile dealership for a test drive was a “motor vehicle” as so defined.

Said statute provides:

“F.S. 627.732(1) ‘Motor vehicle’ means a sedan, station wagon, or jeep-type vehicle not used as a public livery conveyance for passengers and includes any other four-wheel motor vehicle used as a utility automobile and a pickup or panel truck which is not used primarily in the occupation, profession, or business of the insured.”

It is axiomatic that the provisions of statutes relating to insurance become a part of any policy issued in the state and that if the terms of a policy are susceptible of differing interpretations the interpretation which sustains the claim for indemnity or which allows the greater indemnity will be adopted. (See Dorfman v. Aetna Life Ins. Co., 342 So.2d 91 (Fla. 3rd DCA 1977))

The above-quoted statute, which specifically defines “motor vehicle” as used in the “no-fault law” contains no requirement that the automobile, in order to be so defined, be registered in the state of Florida nor does it contain any exclusion of automobiles not registered in the state of Florida. Sub judice the parties agree that the Bronco which struck the plaintiff is a four-wheel motor vehicle not used as a public livery conveyance for passengers and not used primarily in the occupation, profession, or business of the insured. It is therefore apparent, and we so hold, that the Bronco, although registered in a state other than Florida, was a “motor vehicle” as defined in F.S. 627.732(1).

In so holding we are not unaware of the statement, which was unnecessary to the opinion and therefore dictum, in Deel Motors, Inc. v. Carrington, supra, that “The intent of the legislature was to exclude the obvious, that is, a motor vehicle that is registered in a state or district other than Florida.”

Appellant cites another case from our sister court of the Third District, Camacho v. Allstate Insurance Company, 310 So.2d 330 (Fla. 3rd DCA 1975). However, our examination of that case does not reveal that its holding has any relationship to our decision here.

Our decision that the trial judge properly determined that the Cavalier policy afforded PIP benefits to the plaintiff (appellee here) is buttressed by the stated purpose of the “no-fault act” as announced in Florida Statute 627.731, which provides as follows:

“The purpose of ss. 627.730-627.741 is to require medical, surgical, funeral and disability insurance benefits to be provided without regard to fault under motor vehicle policies that provide bodily injury and property damage liability insurance, or other security, for motor vehicles registered in this state and, with respect to motor vehicle accidents, a limitation on the right to claim damages for pain, suffering, mental anguish and inconvenience.” (Emphasis added)

As above stated, the parties agree that the plaintiff was an additional insured under the Cavalier policy. That policy provided “bodily injury and property damage liability insurance, or other security” for a motor vehicle registered in this state, viz: The motor vehicle owned by Lewis Ralph Myles, Jr., the named insured.

AFFIRMED.

RAWLS and McCORD, JJ., concur.


text:
    Fred Albert HESS, Appellant, v. STATE of Florida, Appellee.
    No. 76-983.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1977.
    Rehearing Denied July 29, 1977.
    Edward Brinson, Brinson & Smith, P.A., Kissimmee, and Sam E. Murrell, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Whiteman v. State, 343 So.2d 1340 (Fla.2d DCA 1977).

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