author: HOWARD R. PIGFORD, Commissioner

text:
    CALHOUN COUNTY BOARD OF EDUCATION v. O. D. HAMBLIN.
    No. 49821.
    Supreme Court of Mississippi.
    July 26, 1978.

      Charles W. Cook, Bruce, for appellant.
    Ottis B. Crocker, Jr., Bruce, for appellee.
    Before SMITH, P. J., LEE and BOWLING, JJ., and HOWARD R. PIGFORD, Commissioner.
   HOWARD R. PIGFORD, Commissioner

for the Court:

This is an appeal from a decree of the Chancery Court of Calhoun County, Mississippi, overruling the Calhoun County Board of Education’s decision not to reemploy O. G. Hamblin, principal of the Bruce Attendance Center.

On February 20, 1976, the said Board voted not to reemploy Hamblin and that decision was appealed to the Chancery Court of Calhoun County under the provisions of the Public School Fair Dismissal Act of 1976, Mississippi Code (Supp.1976) Section 37-9-101 -113 [now the School Employment Procedures Law, Mississippi Code Annotated (Supp.1977) Section 37-9-101-113]. The Chancery Court entered a decree overruling the Board’s action on the ground that the decision of the Board was not supported by substantial evidence and was arbitrary and capricious. Appellee was ordered reemployed for the 1976-77 school term.

The issue presented on this appeal is: Does the Mississippi Public School Fair Dismissal Act of 1976 create a substantive right to reemployment by the appellee which requires the School Board to demonstrate good cause for failure to reemploy him?

The record reflects that on January 20, 1976, the Superintendent of Education of Calhoun County decided not to recommend appellee for reemployment and so notified him by letter on that date. Subsequently, at an informal meeting, the County School Board voted to reject the Superintendent’s recommendation and voted to reemploy ap-pellee. After that meeting an opinion was obtained from the Attorney General, and the Board determined that it could not vote for reemployment of appellee without affording him a formal hearing. The Superintendent again notified the appellee of the decision not to recommend his reemployment and cited reasons for same. Appellee then requested a hearing before the School Board under the provisions of the Mississippi Public School Fair Dismissal Act.

The hearing was duly held, appellee was present and represented by his own counsel, he was allowed to present witnesses on his own behalf and to cross-examine witnesses of the Board. The evidence for appellee indicated that he was competent and contradicted the reasons of the Superintendent for nonreemployment while evidence indicated that there were problems between appellee, his staff and the community, with regard to communication.

After a full hearing, the School Board voted not to reemploy the appellee for the reasons stated by the Superintendent in the letter to appellee. On appeal, the Chancellor stated: “The matter to be decided by the Court is whether or not this [lack of communication with staff and community] is supported by substantial evidence.” The Court then went on to say that the testimony did not support the reasons stated by the Superintendent by substantial evidence and that the reasons were not valid grounds for the Board’s refusal to reemploy appellee. It is clear that the lower court assumed that the Public School Fair Dismissal Act placed the burden upon the Superintendent and School Board at such a hearing to demonstrate good cause not to reemploy appel-lee.

It is to be noticed that the Public School Fair Dismissal Act of 1976 was repealed and replaced by the School Employment Procedures Law of 1977, Mississippi Code Annotated (Supp.1977) Section 37-9-101 -113. The Legislature, in the School Employment Procedures Law of 1977 clearly stated that these statutes are procedural only and expressly provide that the law is not “to establish a system of tenure or to require that all decisions of nonreemployment be based upon cause with respect to employment in the school district.” The statutes controlling in this case prior to the School Employment Procedures Law of 1977 were silent as to the legislative intent. However, since the prior law provided for an appeal and a hearing before the School Board, and the furnishing of reasons by the Superintendent for non-reemployment, it was contended, and the lower court apparently was of the opinion, that the burden was on the School Board to show good cause before denying reemployment to ap-pellee.

There is no contention on behalf of the parties that the statutory procedural requirements were not met in this case. It is settled law that under the legislative acts the procedural requirements of timely notice and hearing must be met in order to deny reemployment. McDonald v. East Jasper County School District, 351 So.2d 531 (Miss.1977); Jackson v. Board of Education of Oktibbeha County, 349 So.2d 550 (Miss.1977); Board of Trustees of Pass Christian Municipal Separate School District v. Acker, 326 So.2d 799 (Miss.1976).

The issue on this appeal does not involve procedural requirements, but involves the nature of substantive rights, if any, of the appellee. Prior to the promulgation of the Public School Fair Dismissal Act, it was clear that school employees had no tenure. By statute, the only way this appellee could be hired was by the recommendation of the Superintendent and confirmation of the School Board on an annual basis. Mississippi Code Annotated (Supp.1976) Section 37-9-15; Lott v. State ex rel Kelly, 239 Miss. 97, 121 So.2d 402 (1960); Jennings v. Meridian Municipal Separate School District, 337 F.Supp. 567 (S.D.Miss.1971), Aff’d. 453 F.2d 413 (5th Cir. 1971).

In McCormick v. Attala County Board of Education, 407 F.Supp. 586 (N.D.Miss.1976), which involved failure to reemploy a teacher, the Federal District Judge correctly interpreted Mississippi laws, stating:

In Mississippi, the state law does not provide for a system of job tenure for public school teachers. . . . The defendant
[Board of Education] had the lawful right to rehire the plaintiff for any reason, or for no reason at all, upon expiration of the contract, so long as her constitutional rights were not violated. . . . 407 F.Supp. at 594.
(Emphasis added).

Subsequent to the passage of the Act, in a ease involving procedural aspects of the Act, this Court held that on appeal the chancery court was limited to determining if an order of the Board (1) was supported by substantial evidence, (2) was arbitrary or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some state of constitutional right of the complaining party. Board of Trustees of Pass Christian Municipal Separate School District v. Acker, 326 So.2d 799 (Miss.1976).

We hold that the decision of the School Board was not beyond the School Board’s power to make, and that its action did not violate any statute or constitutional right of appellee. Because the statute requires the superintendent or principal, as the case may be, to furnish reasons for non-reemployment, it may have been assumed that the statute establishes some form of tenure. A reading of the express language of the statutes leads us to the conclusion that the Legislature did not intend to, and did not, create by such statutes a system of tenure. Study of the legislative history of the statutes and other legislative research reveals that the Legislature dealt with other bills previously which were introduced with the express purpose of creating a tenure system in the schools of Mississippi. Those bills failed to become law, both before and after enactment of the Public School Fair Dismissal Act. Also, as stated, the legislative intent was specifically stated in the most recent enactment in Section 37-9-101 of the Mississippi Code Annotated (Supp.1977).

In a well-reasoned opinion, an Arkansas Federal District Court considered a similar statute and concluded that the statute was limited to a procedural grant of notice and an opportunity to be heard as opposed to creating a system of tenure. Williams v. Day, 412 F.Supp. 336 (E.D.Ark.1976). This result is supported by analysis of the United States Supreme Court case of Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In Roth, although the Court was considering whether or not a teacher had a property interest sufficient to trigger due process protections, it went on to point out that if due process protection applied, and notice and hearing were required, that

[T]he purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons. 408 U.S. at 573, 92 S.Ct. at 2707, 11 L.Ed.2d at 558. (Footnote 12).

Similarly, the Court in Roth pointed out that due process may be triggered where liberty interest is involved, e. g., if a person’s “good name, reputation, honor, or integrity is at stake because of what the government is doing to him . . . 408 U.S. at 573, 92 S.Ct. at 2707. But there, the Court stated that “It stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains free as before to seek another.” 408 U.S. at 575, 92 S.Ct. at 2708.

We hold that, under the pertinent statutes applicable here, appellee had a platform in which to defend his good name, reputation, honor or integrity. In summary, the intent of the Legislature was to grant a- teacher the limited right to notice and an opportunity to be heard by the School Board, e. g., to present the employee’s position, but not to place restrictions on what decision the School Board might make. Considering requirements of the statute, we conclude that they express an intent to, and do, create something less than a tenured situation.

The burden of proof at the hearing is not on the superintendent or principal, as the case may be, as it would be in a tenure situation. Lamar County School Board v. Saul, 359 So.2d 350 (Miss.1978). Once the Superintendent has given a demonstrable reason for non-reemployment (before the hearing), the burden at the hearing is upon the employee to prove affirmatively and conclusively that the reasons relied upon by the School Board have no basis in fact. In the present case, the Superintendent met this requirement of furnishing a demonstrable reason for the recommendation of non-reemployment (lack of communication with the faculty and community). At the hearing, witnesses for the Superintendent testified to a lack of communication, while witnesses for the principal testified to the contrary. Although the proof is inconclusive, it cannot be said that the reason was not demonstrable and not supported by fact.

We hold that, under the record in this case, the statute has been complied with. Appellee was afforded due process and all his procedural rights were protected and complied with. It was error for the lower court to require appellant to show good cause for the non-reemployment of appellee.

The decision of the lower court is reversed, and the order of the School Board is reinstated.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


source: Caselaw Access Project

author: COFER, Justice,

license: Public Domain

text:
    Lessie G. RUSH v. John C. RUSH, Individually, and as Executor of the Estate of Thomas H. Rush, Sr., and Kathryn Evans and Thomas H. Rush, Jr.
    No. 50679.
    Supreme Court of Mississippi.
    July 26, 1978.

      Laurel G. Weir, Philadelphia, for appellant.
    Alford, Mars & Thomas, Robert L. Thomas, Philadelphia, for appellee.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   COFER, Justice,

for the Court:

This case is here on appeal from the Chancery Court of Neshoba County.

On May 12, 1975, Thomas H. Rush, Sr. departed this life leaving his widow and three children surviving him. He had on July 7, 1970, executed a purported last will and testament, wherein he left to his wife, the appellant, a “life estate in my dwelling house and IV2 acres of land upon which said dwelling house is located on the west side of Mississippi Highway # 21 in Neshoba County, Mississippi, together with all the household furniture and furnishings located therein. It is my will and direction that she have the quiet and peaceful possession of said property during the balance of her natural life.” He gave all of the rest and residue of his property to his three children and named John C. Rush, one of them, executor of the will without bond and without being required to render inventory or appraisement.

The court, in its final decree, adjudicated that the testator owned at his death 27% acres of land, of which that in which he left a life estate to his widow is a part.

Errors are assigned in the court’s sustaining of demurrer to answer and cross bill of appellant, because it stated a cause of action for protection of her homestead rights; in the court’s failure to allow her a widow’s allowance; and in sustaining the demurrers and dismissing the pleadings “for the many other reasons apparent in the face of the record.”

John C. Rush, the executor, caused the instrument to be probated in common form and letters testamentary to be issued to him on May 15, 1975. Notice to creditors was begun on May 22, 1975, and one claim, that for the funeral expenses of decedent, was probated and paid.

The transcript is silent as to any further activity in the estate until the executor filed final account on April 18, 1977. The children are before the court by joinder or waiver. On May 25, 1977, one of the days of the May, 1977 term of said court, decree was entered setting the final accounting for hearing on June 20, 1977.

Appellee’s brief says the widow was summoned by process returnable to the term. Nevertheless, she on June 17, 1977, filed “Answer and Contest of Lessie C. Rush,” wherein she denied that a writing had been legally probated as the will of decedent and that decedent left any will, and asserted that he was not mentally competent or capable of making a will when the purported will was allegedly executed and asked for caveat and contest of the will because of the fact that she is decedent’s widow and no adequate provisions were therein made for her. She alleged as a part of her answer that, if the will should be held to be valid, she as his widow has a right to renounce, and does renounce, the will, including a formal renunciation thereof as a part of her pleading, and she was lulled into refraining from earlier renunciation because of fraud of the other heirs of the estate through their promising and continuously leading her to believe that she would be given her share of the estate of realty and personalty and that they would care for her and support her the remainder of her life if she would not contest the will, and she relied upon their guarantees, which, she alleged, they had not kept and have no intention of keeping, and because of their fraud and misconduct, she now has a right to renounce said will.

She affirmatively alleged in her answer that, as decedent’s widow, she has the homestead right to all of the land owned by deceased at his death and the right to use and to have the exclusive possession thereof.

She included a cross bill making a part thereof all affirmative allegations of her answer and alleged that the decedent did leave a purported will, but was not, at the time, mentally or physically capable of making or of understanding the consequences of the alleged will, and it is void and contest is made of it for this reason as well as on the ground that, by undue influence, the other heirs made the will theirs rather than a reflection of the true intention of the deceased, and “the issue of the validity of the will is first brought into issue as well as the fact that same has never been legally probated or filed according to law.” She repeated her renunciation of the will and the reasons for her tardiness as to renouncing. She alleged that, as the widow, she is entitled to be administratrix of the estate and that she is in need of a widow’s allowance and solicitor’s fee.

She prayed that the will be renounced and declared void, that she be appointed administratrix of the estate and that all property of the estate be placed in her custody and that she be awarded a reasonable widow’s allowance as provided by law and for solicitor’s fee and general relief.

She made the three children of deceased cross defendants and served a copy of her pleading upon opposing counsel. John C. Rush, one of the cross defendants, filed on his own behalf, a special demurrer to the cross bill and, as executor, filed a general demurrer thereto. The record is silent as to any disposition of the latter pleading.

As grounds for the special demurrer the demurring cross defendant assigned:

1. That the statute of limitations had run on the widow’s right to renounce the will before she undertook to do so;

2. The contest of the will was not timely begun and the effort now to do so is barred by the statute; and

3. The will of decedent has been admitted to probate, and the attempt here to contest his mental and/or physical capacity to make a will is not properly formed or initiated.

The chancellor sustained each of the grounds of special demurrer and dismissed the cross bill. In sustaining the demurrer we concur. We are of the opinion that it was error to dismiss the pleading.

Mississippi Code Annotated, section 91-5— 25 (1972), authorizes a widow to renounce her husband’s will, if not satisfactory to her, within six months after the probate thereof. (Ninety days after the probate of the will after January 1, 1976, Laws of 1975, Chapter 373). The time limitation within which the renunciation is required to be made has evoked only slight expression of this Court. In Ex Parte Delilah Moore, 8 Miss. (7 Howard) 665 (1843), under the Act of 1821, Revised Code p. 40, providing that “a widow shall be barred of her right of dower in lands, or share in the personal estate, etc., unless, within six months after the renunciation or probate of the will, she shall deliver or transmit to the court, where such authentication or probate hath been made, a written renunciation, etc.”, it was held that a renunciation on December 28 of a will admitted to probate on the 24th of June preceding was undertaken too late, saying, “It is better therefore to abide by the law as it is written, than to create exceptions without being able to foresee where they may end.” 8 Miss. at 668.

It was held in Collins v. Melton, 40 Miss. 242, 245 (1866), that failure of the widow to renounce the will within the time provided therefor amounts to an election on her part to take under the will.

The statute was applied adversely to the surviving spouse, in Estate of Bullock, deceased: Pleas Bullock v. Harper, 239 So.2d 925 (Miss.1970), where he undertook to renounce his wife’s will thirteen months after its probate, but the Supreme Court held him entitled to the same share of the estate to which he would have been entitled had he renounced in timely manner, the will making no provision for him. Section 91-5-27.

We are of the view that appellant, by her failure to renounce the will in six months after its probate, waived her right to do so.

The record concludes any suggestion even that, if her present answer and cross bill may be treated as a contest of the will, such contest was begun within two years of the probate thereof, the time limited therefor under Section 91-7-23. She says that she was lulled into refraining from contesting it, by promises of the testator’s children to take care of her and to let her share in the estate.

In Wilson v. Wilson, 166 Miss. 369, 146 So. 855 (1933), wherein there was no concealed fraud, it was alleged the widow, the beneficiary under the will of her husband and the father of appellees, promised them that if they would not contest the will on admitted grounds of testamentary incapacity existing therefor, she would in due time make a division of the testator’s estate by deed or delivery. It was further alleged that they relied on this promise and entered no contest to the will and that at the expiration of the two years during which they were authorized to contest it, the widow informed them that she had changed her mind, and would hold the property under the will as probated. On the widow’s appeal from the lower court’s action in overruling her demurrer, it was said that the statute, [now section 91-7-23] has been the law for generations; that it sets forth only two exceptions to the time limit for filing contest— the exception in favor of infants and persons of unsound mind and the exception in the case of concealed fraud. Finding neither of these exceptions present, in the case, and reversing and dismissing the bill of appellees, the Court said:

But the statute here in question is more than a mere statute of limitations; moreover, it contains within its own terms those exceptions by which it may be avoided, and the general rule is that when such a statute sets up its own exceptions this will exclude others sought to be imported therein. 25 R.C.L. 983; 59 C.J., p. 1092.
(166 Miss. at 376, 146 So. at 856).

None of these exceptions being available to her, appellant lost her right to contest the will at the expiration of two years from the date of its probate.

We are of the opinion that some relief may be available to her, and that, the special demurrer not reaching that relief, the answer and cross bill should not have been dismissed. Though inartificially drawn, as we view the pleadings, appellant puts the court to a decision as to whether she is entitled to occupy the homestead, rather than the small part in which she was left a life estate, section 91-1-23, and whether she is entitled to a widow’s allowance for one year. Section 91-7-135.

As to the homestead exemption, we have held that the owner of homestead property may, by will, dispose of it as he or she sees fit, but he or she could not thereby defeat his or her spouse’s right to occupy the same as a homestead under the statute. This right prevails where, by will, the owner of the homestead devises it to another without share to the spouse. Biggs v. Roberts, 237 Miss. 406, 414, 115 So.2d 151, 154 (1959); Mills v. Mills, Admrx. C.T.A., 279 So.2d 917, 924 (Miss.1973). The statutory homestead right may be availed of by the surviving spouse without renouncing the will of the deceased owner. Stockett v. Stockett, 337 So.2d 1237, 1240-1241 (Miss.1976).

As to appellant’s right to a widow’s allowance, we have held that, regardless of a will, the widow is entitled to this allowance unless it clearly appears that the provisions of the will for the widow of the decedent are in lieu of the year’s support provided by the statute. See Mills v. Mills, Admrx., C.T.A., supra, at 921, where a number of authorities were collated.

We do not decide whether appellant is entitled to the homestead exemption or the widow’s allowance, but reverse the dismissal of her pleading and remand the case for further pleading and such evidentiary hearing on these issues as may be necessary to a determination thereon, to be made by the chancellor.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: LEE, Justice,

text:
    Billy Ray MILES v. STATE of Mississippi.
    No. 50571.
    Supreme Court of Mississippi.
    July 26, 1978.

      John B. Gee, Everett Verhine, Vicksburg, for appellant.
    A. P. Summer, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Billy Ray Miles was convicted of larceny in the Circuit Court of Warren County and sentenced to five (5) years. He assigns the following errors:

(1) The trial court erred in overruling appellant’s motion to exclude the purported confessions of appellant.

(2) The trial court erred in overruling appellant’s motion for a directed jury verdict for lack of proof of a corpus delicti.

(3) The trial court erred in overruling appellant’s motion for a new, or another, trial.

Vicksburg Chemical Company uses platinum in the manufacture of agricultural chemicals. The platinum acted as a catalyst and Vicksburg kept from nine hundred (900) to one thousand (1,000) ounces in a locked strongbox chained to a table and an I-beam. On the morning of February 9, 1977, Floyd Britt, a laboratory chemist, went to the box to clean the platinum and discovered the chain had been cut and the box was missing. It weighed approximately three hundred (300) pounds. The value of the platinum was estimated at one hundred thirty-five thousand dollars ($135,000). The only person with a key to the strongbox was Bob Maraman, laboratory manager of the corporation.

Sheriff Paul Barrett investigated the theft. He interviewed appellant in Tallu-lah, Louisiana on February 13, in the presence of Louisiana Officer Jackie Lott. Miles admitted his participation in the crime and gave a detailed statement about it. The platinum was not recovered.

On February 14,1977, FBI Agent Charles Shepard, along with Agent John P. Mack, interviewed appellant and he confessed participating in the crime.

I.

Did the trial court err in overruling appellant’s motion to exclude the confessions given by him?

Appellant contends that he was not advised of his constitutional rights and that the confessions were improperly admitted into evidence because they were obtained as a result of promises of immunity. Sheriff Barrett testified that he advised appellant of his Miranda rights and that the confession was freely and voluntarily made without promise or hope of reward having been given to him. Officer Jackie Lott did not testify at the trial. The sheriff stated that Lott was in the State of Arkansas, and the district attorney explained to the court that he received information that Lott was on vacation in the State of Arkansas and that he would not be available for another ten (10) days or two (2) weeks. He further advised the court that he had obtained a subpoena for the officer and when the subpoena was returned, he then discovered that Lott was unavailable.

In Agee v. State, 185 So.2d 671 (Miss.1966), the Court stated the rule that when a defendant rebuts the presumption of volun-tariness of a confession after a witness for the State has testified thereto, all officers present when the confession was made must be introduced, or an adequate reason for their absence must be given.

In Hicks v. State, 355 So.2d 679 (Miss.1978), one witness to part of the interrogation of the defendant was not present at the trial, and this Court said: “The mere statement by Payne that Hargrove was at the FBI Academy in Washington receiving some training, without more, does not negate his availability as a witness.” 355 So.2d at 680.

We are of the opinion that under the facts of this case, the explanation that Officer Lott was on vacation in the State of Arkansas was not a sufficient explanation of his absence, and that the State should not have announced ready for trial until the witness was present.

The FBI agents testified that appellant was instructed as to his Miranda rights and that the confession made by him to the agents was freely and voluntarily given. However, the statement to the FBI agents does not cure the error in the original confession.

II.

Did the court err in overruling appellant’s motion for a directed verdict for lack of proof of a corpus delicti?

Appellant contends that (a) there was no proof adduced which indicated that any platinum was removed from the premises of Vicksburg Chemical, (b) the evidence was based only on suspicion, and (c) the presumption of innocence was not rebutted.

The evidence indicated without dispute that the chain which secured the strongbox (containing the platinum) to a table and I-beam was cut, the officers traced and followed a path which indicated the 300-pound object was dragged out of the building across a part of the lot and onto a railroad track, where the trail was lost. Although the platinum was not recovered, there was ample proof that the crime of larceny had been committed and the corpus delicti was established. Poole v. State, 246 Miss. 442, 150 So.2d 429 (1963).

In the event the confessions of appellant are admitted in evidence on a second trial, those confessions along with the other facts of the case overwhelmingly establish the corpus delicti.

In view of the fact that the case must be reversed and remanded for a new trial, it is not necessary to discuss the failure of the trial court to grant a new trial on motion filed by appellant.

REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON and SMITH, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


author: SMITH, Judge. SMITH, Judge.

text:
    Goldia KIMBLER, Appellant, v. STATE of Florida, Appellee.
    No. FF-491.
    District Court of Appeal of Florida, First District.
    June 16, 1978.
    On Rehearing July 26, 1978.
    Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Kimbler appeals from her convictions of murder in the second degree and tampering with evidence. Joe Max Valdez died of an abdominal gunshot wound at appellant’s home on the night of August 23, 1976, or early the next morning. The weapon was not found. He was last seen alive by testifying witnesses at 10 p. m. The medical evidence suggests he died no later than 2 a. m. Police arrived at 8:30 a. m. The convictions rest on incriminating inferences from circumstantial evidence. That evidence was insufficient to permit findings, beyond a reasonable doubt, of Kimbler’s guilt. The evidence does not fairly exclude several hypotheses of her innocence which are suggested by the evidence or lack of it, and which the jury and trial judge were bound to regard. Davis v. State, 90 So.2d 629 (Fla.1956); Head v. State, 62 So.2d 41 (Fla.1952); Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974). The incriminating extrajudicial testimony given by the witness Burr, with which the state attempted to impeach Burr when she failed to so testify as the court’s witness, cannot be considered as competent evidence on the charge against appellant. Pitts v. State, 333 So.2d 109 (Fla. 1st DCA 1976). Appellant’s motion for new trial should have been granted. McArthur v. State, 351 So.2d 972 (Fla.1977). The convictions are REVERSED AND REMANDED.

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

ON PETITION FOR REHEARING

SMITH, Judge.

Kimbler’s petition for rehearing calls attention to the United States Supreme Court decisions announced June 14 in Burks v. United States, - U.S. -, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, - U.S. -, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); and to that Court’s summary action on June 26, 1978, - U.S. -, 98 S.Ct. 3119, 57 L.Ed.2d 1145, vacating McArthur v. State, 351 So.2d 972 (Fla.1977), relied on in our opinion in this case, and remanding the case for reconsideration in the light of Burks and Greene.

In ordering Kimbler remanded for a new trial, because she had asked for that relief, below and not for judgment of acquittal, we gave effect to a view of the Double Jeopardy Clause which Burks and Greene have overruled. Burks holds that when as here an appellate court has determined that the evidence was insufficient to support the conviction, the accused must be discharged, not retried; and that "it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy.” Burks, - U.S. at -, 98 S.Ct. at 2150.

The petition for rehearing is GRANTED and Kimbler is DISCHARGED.

McCORD, C. J., and BOYER, J., CONCUR.


author: HENDRY, Judge.

text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Victoria L. ILMONEN, Appellee.
    No. 77-907.
    District Court of Appeal of Florida, Third District.
    June 20, 1978.

      Ress, Gomez, Rosenberg, Berke & How-land and Roland H. Gomez, North Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Moss, Cohen & Rodgers, Miami, for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, plaintiff below, appeals from a “final summary declaratory judgment” rendered in favor of appellee, defendant below, in an action to determine the amount of coverage available to appellee for damages she sustained in an automobile accident.

Appellee, a passenger in a motor vehicle driven by one Edlow Jack Jones was seriously injured when said vehicle collided with an automobile driven by one Rodney Jackson. Jackson was insured under an automobile liability insurance policy with maximum limits of THIRTY-FIVE THOUSAND ($35,000.00) DOLLARS. Jones was insured under an automobile liability policy with maximum limits of FIFTEEN THOUSAND ($15,000.00) DOLLARS. Although the policy limits provided by both policies of insurance totaled FIFTY THOUSAND ($50,000.00) DOLLARS, it was undisputed that the injuries sustained by appellee far exceeded that amount.

After commencement of a suit against both Jackson and Jones, and their respective insurers, the carriers tendered their policy limits to appellee. At the time of the accident, February 21, 1976, appellee was also covered under a policy of motor vehicle liability insurance issued to her husband by appellant which included protection against underinsured motorists. The applicable coverage limits under said policy was TWO HUNDRED THOUSAND ($200,000.00) DOLLARS. In pertinent part, the policy provided that:

“(b) Any amount payable under the terms of this coverage because of bodily injury sustained in an accident by a person who is an Insured under this coverage shall be reduced by
“(1) all sums paid on account of such bodily injury by or on behalf of (i) the owner or operator of the uninsured automobile and (ii) any other persons or organization jointly or severally liable together with such owner or operator for such bodily injury including all sums paid under the Liability Coverage.”

Subsequently, appellee made an application for uninsured motorist benefits under her policy with appellant and a demand for arbitration, in accordance with the terms and conditions of her policy. Appellee contended, and so contends here, that she was entitled to the full TWO HUNDRED THOUSAND ($200,000.00) DOLLARS in uninsured/underinsured motorist benefits.

On February 23, 1977, appellant filed a complaint for declaratory and injunctive.re-lief, taking the position that appellee only had available a maximum of ONE HUNDRED FIFTY THOUSAND ($150,000.00) DOLLARS coverage for her damages. This figure was reached by deducting the .FIFTY THOUSAND ($50,000.00) DOLLAR set: off received from Jones and Jackson, as allegedly required by Section 627.727(1), Florida Statutes (1977) from the'. TWO HUNDRED THOUSAND ($200,000.00) DOLLARS.

Appellee filed an answer and counterclaim for declaratory judgment taking the position that appellant would only be entitled to a FIFTY THOUSAND ($50,000.00) DOLLAR set-off if the arbitrators awarded an amount less than TWO HUNDRED THOUSAND ($200,000.00) DOLLARS. If' the arbitrators awarded an amount in excess of TWO HUNDRED FIFTY THOUSAND ($250,000.00) DOLLARS, appellant alleged, then a set-off would not be proper. In addition, appellee took the position that if appellant was entitled to any set-off, then appellee would be likewise entitled to' equitable distribution for attorneys’ fees and costs in pursuing the settlement against Jackson and Jones, the tortfeasors.

On April 15, 1977, upon cross-motions for summary judgment, the trial judge entered a final summary declaratory judgment, ordering, in pertinent part, as follows:... .

“3. By the plain meaning of the terms of Section 627.727(1), Florida Statutes, ‘The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured under any . . . automobile liability or automobile medical expense coverages,’ if arbitration here results in an award of $200,000 or less, AETNA will be entitled to a setoff of the available third party coverage minus equitable distribution for attorneys’ fees and costs as discussed below; if arbitration results in an award in excess of $200,000 and up to' $250,000, the first $50,000 of same or a part thereof, will be subject to a setoff in favor of AETNA subject to equitable distribution as aforesaid; if an award is made of $250,000 or more, AETNA would be entitled to no setoff whatsoever.
“5. If an award is entered which is subject to setoff as aforesaid, the defendant, VICTORIA L. ILMONEN, may be entitled to equitable distribution of a portion of the $50,000 in available third party coverage to cover costs and attorneys’ fees attendant upon prosecution of their third party claims, and the Court reserves jurisdiction to hold a hearing regarding same.”

From that judgment, appellant has taken this appeal.

Appellant raises two points on appeal, the first of which we word as follows:

Whether an uninsured/underinsured insurance carrier is entitled to a set-off of any monies received by its insured from an uninsured/underinsured tortfeasor(s), when the damages sustained by the insured are greater than the insured’s coverage limits and tortfeasor(s) recovery combined.

To place this issue within the framework of the facts sub judiee, the question becomes whether appellee is entitled to the limits of her policy coverage, to-wit: TWO HUNDRED THOUSAND ($200,000.00) DOLLARS, in addition to the FIFTY THOUSAND ($50,000.00) DOLLARS received via a settlement with the tortfeasors, assuming her injuries are determined to be greater than TWO HUNDRED FIFTY THOUSAND ($250,000.00) DOLLARS; or is her recovery limited to the policy limits, to-wit: TWO HUNDRED THOUSAND ($200,-000.00) DOLLARS, with appellant entitled to set-off any monies received by appellee from the tortfeasors’ carriers. Under the former, appellant’s liability would be TWO HUNDRED THOUSAND ($200,000.00) DOLLARS, while under the latter, its liability would be limited to ONE HUNDRED FIFTY THOUSAND ($150,000.00) DOLLARS. Likewise, appellee’s available coverage would be TWO HUNDRED FIFTY THOUSAND ($250,000.00) DOLLARS under the former, while under the latter, coverage would be limited to TWO HUNDRED THOUSAND ($200,000.00) DOLLARS.

The second issue we must determine is whether the trial court erred in ruling that appellee might be entitled to equitable distribution of a portion of the FIFTY THOUSAND ($50,000.00) DOLLAR setoff to cover costs and attorneys’ fees. We begin our discussion with the first issue.

We start with the applicable portion of Section 627.727(1), Florida Statutes (1977), which provides that:

. . The coverage provided under this section shall be excess over, but shall not duplicate the benefits available to an insured . . . from the owner or operator of the uninsured motor vehicle or any other person or organization jointly or severally liable together with such owner or operator for the accident.”

In deference to the above, the law is quite clear that when the tortfeasor’s insurance is inadequate to cover the insured’s damage, then the insured may recover from his own carrier under uninsured/underinsured motorist coverage to the extent that said coverage exceeds the limits of the tortfeasor’s policy, up to the limits of the insured’s policy. Government Employees Insurance Company v. Farmer, 330 So.2d 236 (Fla. 1st DCA 1976); Hunt v. State Farm Mutual Insurance Company, 349 So.2d 642 (Fla. 1st DCA 1977).

It is appellee’s position that where, as here, damages far exceed the total amount of coverage available from both the tort-feasor’s and the insured’s carrier, there is then no possibility of a “duplication of benefits,” as per Section 627.727(1). Accordingly, appellee’s argument goes, in order to “make the injured insured whole” the greatest possible coverage should be afforded. As such, appellee contends that the court ruled correctly when it stated that should arbitration produce an award in excess of TWO HUNDRED FIFTY THOUSAND ($250,000.00) DOLLARS, a set-off would be unnecessary and improper, as there would then be no duplication of benefits. As far as the court’s ruling as to an arbitration award less than the above amount, appellee concedes that a set-off of the tortfeasor recovery would be proper. Hunt, supra; Government Employees Insurance Company, supra.

As authority for the above position, appellee relies upon Government Employees Insurance Company v. Shelly, 347 So.2d 124 (Fla. 4th DCA 1977). We also note the strong dissenting opinion of Judge Dauksch in Jones v. Travelers Indemnity Company of Rhode Island, 357 So.2d 231 (Fla. 4th DCA 1978) and see Government Employees Insurance Company v. Graff, 327 So.2d 88 (Fla. 1st DCA 1976).

Notwithstanding appellee’s contention, we believe that the court erred in its ruling. We interpret Section 627.727(1) to provide for an insured’s recovery from his own insurer pursuant to an uninsured/underinsured policy of automobile insurance, the full extent of his damages in excess of any tortfeasor recovery up to the limits of the insured’s policy. See Government Employees Insurance Company v. Farmer, supra; State Farm Mutual Automobile Insurance Company v. Diem, 358 So.2d 39 (Fla. 3d DCA 1978), opinion filed April 4, 1978; Hunt v. State Farm Mutual Insurance Company, supra.

While none of the above cited cases deal directly with a situation whére the injured’s injuries are in excess of the policy coverage and tortfeasor recovery combined we nevertheless apply those holdings to the case at bar. In so ruling, we are particularly influenced by those decisions which prohibit the use of uninsured motorist coverage, when the tortfeasor’s coverage is in an equal amount to the insured’s coverage. Government Employees Insurance Company v. Taylor, 342 So.2d 547 (Fla. 1st DCA 1977); Government Employees Insurance Company v. Butt, 296 So.2d 599 (Fla. 3d DCA 1974). The prohibition is based upon the premise that to add the like amount of tortfeasor and uninsured/underinsured coverage would be to duplicate the benefits. Government Employees Insurance Company v. Butt, supra. For example, if the tortfeasor had available coverage in the amount of TEN THOUSAND ($10,000.00) DOLLARS while the insured had uninsured ■ motorists benefits in that like amount, only TEN THOUSAND ($10,000.00) DOLLARS would be available to the insured for his' injuries according to the law, even assuming injuries in excess of TWENTY THOUSAND ($20,000.00) DOLLARS. Appellant argues that according to appellee’s view, if the injuries were greater than TWENTY THOUSAND ($20,000.00) DOLLARS, then we would have to add the two coverages together. That result would be contrary to the law, as expressed in the above cases.

The insured motorist is entitled to the full bodily injury protection that he or she purchases. Government Employees Insurance Company v. Farmer, supra. Sub judice, appellee possessed TWO HUNDRED THOUSAND ($200,000.00) DOLLARS of uninsured motorist coverage. Our decision entitles appellee to the full amount of coverage that her husband purchased. The purpose of uninsured/underinsured motorist coverage is to enable an insured to recover under his or her policy of insurance for damages that he or she would have been-, able to recover against the negligent motorist if that motorist had maintained a policy of liability insurance. Salas v. Liberty Mutual Fire Insurance Company, 272 So.2d 1 (Fla.1972). Uninsured/underinsured motorist coverage has never been interpreted to provide supplemental insurance.

As for the second issue on appeal, based upon the record and the applicable authorities, it is our opinion that no error has been shown which requires a reversal of the trial judge’s order requiring equitable distribution on that portion of the FIFTY THOUSAND ($50,000.00) DOLLARS subject to set-off. See Government Employees Insurance Company v. Graff, supra.

Accordingly, that part of the final summary declaratory judgment which denied appellant a set-off is reversed, as appellee’s total coverage is limited to TWO HUNDRED THOUSAND ($200,000.00) DOLLARS. In all other respects, the judgment is affirmed.

Affirmed in part; reversed in part and remanded for further proceedings.


author: DOWNEY, Chief Judge.

text:
    Alton S. BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1719.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1978.
    Rehearing Denied Aug. 16, 1978.

      Philip G. Butler, Jr., of Foley, Colton & Butler, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden and Charles A. Stampers, Asst. Attys. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant, together with Donald Rauler-son and Charles Rampy, was charged with 1) delivery of cocaine and 2) delivery of marijuana. Appellant’s case was severed and he was ultimately convicted of delivery of marijuana and sentenced to one year in the County jail.

The facts of the case set forth in appellant’s brief are essentially as follows: Joyce Van Landingham, equipped by the State Attorney’s office with a concealed microphone-transmitter, went to the law offices of her attorney, Alton Beasley, who was then handling a dissolution of marriage for her. Once at Mr. Beasley’s office Mrs. Van Landingham asked Mr. Beasley where she could obtain a quantity of marijuana. Pursuant to that request Mr. Beasley called Donald Raulerson in an effort to locate Charles Rampy and instructed Mrs. Van Landingham to go to Raulerson’s grocery store in Fort Pierce, Florida, and to speak only to Charles Rampy, and that Mr. Ram-py would be able to arrange a delivery of marijuana for her. Mrs. Van Landingham left Mr. Beasley’s office, returned to the office of the State Attorney, and then proceeded to a convenience store and called Donald Raulerson herself. She later went to Raulerson’s store and made the arrangements to contact him the following day in order to obtain marijuana. The next day Van Landingham telephoned Raulerson two additional times and later met with him.

Richard Browning of the St. Lucie County Sheriff’s Office testified that he monitored and taped the conversation between Van Landingham and Alton Beasley that occurred at Beasley’s law office. He further testified that he monitored the phone conversation between Van Landingham and Raulerson, and also that he surveiled Van Landingham while she went to meet with Raulerson on both occasions. Further, he received the marijuana from William Boyd after Boyd had received it from Van Land-ingham.

Deputy Sheriff William Boyd testified that he was involved in the surveillance of Van Landingham when she obtained the marijuana from Raulerson, and he actually received the marijuana from Van Landing-ham after it was purchased by her.

Robert Blackledge, a chemist, testified that the substance purchased by Joyce Van Landingham from Donald Raulerson was marijuana and a controlled substance under Section 893.13, Florida Statutes (1975).

The appellant, Alton Beasley, testified that he had received information from his estranged wife that several individuals, including Vance Thomas, were involved in smuggling and selling illicit narcotics. This informatio.n was obtained from appellant’s estranged wife as a result of visits with Mr. Beasley’s minor children at the residence of Vance Thomas’ father. Appellant expressed concern over the fact that his children were being exposed to a drug related environment by association with Vance Thomas and others that he knew to be involved in narcotics, and that he wished to put a stop to it by having Vance Thomas and the other individuals apprehended. Furthermore, appellant testified that he was advised that a client of his, Donald Raulerson, was working as an undercover agent for the Florida Department of Law Enforcement; he related the information regarding Vance Thomas and Joyce Van Landingham to Donald Raulerson approximately a week before the incident of June 14, 1976. Moreover, he testified that he discussed with Raulerson, in his capacity as an agent of the Florida Department of Law Enforcement, the possibility of arranging a controlled purchase of narcotics by Joyce Van Landingham from Vance Thomas.

Appellant testified that on June 24,1975, Joyce Van Landingham visited his office and requested information regarding where she could purchase a quantity of marijuana as well as other illicit narcotics; he left the room and called Donald Raulerson for the purposes of arranging the controlled' purchase of marijuana between Joyce Van Landingham and Vance Thomas. After confirming with Mr. Raulerson the arrangements of the controlled purchase, he continued discussing the matter with Joyce Van Landingham in order to demonstrate to her that he was involved and to convince her to enter into the transaction in an effort to apprehend Vance Thomas. He further testified that he instructed her to contact Charles Rampy at Donald Raulerson’s office because he knew that Charles Rampy was well acquainted and associated with Vance Thomas. Lastly, the appellant testified, that he had supplied other information to law enforcement officers regarding trafficking in illicit narcotics.

The evidence reflected that appellant was not present during any of the meetings between Van Landingham and Raulerson; Van Landingham was an agent for the Okeechobee Police Department and Raulerson was a confidential informant for the Florida Department of Law Enforcement, but without authority to deal in drugs.

The parties agree that appellant is guilty, if at all, as an aider and abettor. Therefore, the State must prove that a crime was committed, that appellant aided in the commission of the crime, and that the appellant had the intent to participate in the crime. Hutchinson v. State, 809 So.2d 184 (Fla. 1st DCA 1975); Casey v. State, 266 So.2d 366 (Fla. 1st DCA 1972). In inverse order, the record contains evidence which proves appellant’s intent to participate and that he actually aided in setting up the drug transaction. When Van Land-ingham asked appellant where she could purchase some drugs he told her where to go and whom to contact. In furtherance of that scheme he called Raulerson seeking to locate Rampy. There is also adequate proof of the drug sale from Raulerson to Van Landingham. Thus, the State met the burden to show all of the elements required to convict appellant as an aider and abettor.

Appellant contends no crime was proven because Raulerson and Van Land-ingham were law enforcement agents participating in the sale, so that the requisite criminal intent is lacking. We concede that, if the factual basis for that contention existed, the legal conclusion would follow. However, the sale was set up by appellant and Raulerson and the evidence shows that Raulerson was a confidential informant with no authority to deal in drugs. Therefore any analogy to the general rule that where one of two persons who conspire to do an illegal act is an officer acting in the discharge of his duty, the other person cannot be convicted on a charge of conspiracy, is inapplicable. Appellant suggests that the King rule must be applied here because, while Raulerson was tried and convicted, on appeal the conviction was reversed because the evidence was insufficient. However, one cannot tell from the abbreviated opinion in that case the reasons for the insufficiency of the evidence. More importantly, the record in this case clearly demonstrates that Raulerson did not meet the criteria necessary to make the King rule applicable.

Next appellant takes the position that he cannot be convicted as an aider and abettor because the criminal act intended never reached fruition. Appellant instructed Van Landingham to buy from Rampy, not from Raulerson. This argument is without force because an aider or abettor is guilty even though the common purpose was not to commit the particular crime which was committed. The aider is guilty of any other crime committed by the other person in pursuance of the common purpose or as a natural or probable consequence thereof. Davis v. State, 275 So.2d 575 (Fla. 1st DCA 1973).

We have considered appellant’s other contentions and find them to be without merit. Accordingly, the judgment and sentence appealed from is affirmed.

AFFIRMED.

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

      . King v. State, 104 So.2d 730 (Fla.1957).

      . Raulerson v. State, 348 So.2d 598 (Fla. 4th DCA 1977).


text:
    ATLANTIC GARDENS LANDSCAPING, INC., Appellant, v. BOCA RATON LAND DEVELOPMENT, INC. and American Fire and Casualty Company, Appellees.
    Nos. 76-1114, 76-2111.
    District Court of Appeal of Florida, Fourth District.
    June 28, 1978.
    Rehearing Denied Aug. 16, 1978.

      John A. Gentry, III, of Moyle, Gentry, Jones, Flanigan & Groner, West Palm Beach, for appellant.
    Glen N. Smith and William H. Lefkowitz. of Ruden, Barnett, McClosky, Shuster &' Schmerer, Fort Lauderdale, for appellees.
   DOWNEY, Chief Judge.

Appellant sued appellees to foreclose a mechanics lien. The complaint contained the usual allegations regarding ownership of the property, the contract between the parties, the performance of work and furnishing of materials, the filing of a claim of lien, the incurrence of attorneys’ fees, the performance of all conditions precedent .to maintain the action, and a prayer for foreclosure of its lien or rendition of a judgment for the amount due. The complaint contained no allegation that appellant had furnished appellees the affidavit required by Section 713.06(3)(d), Florida Statutes (1975).

Appellees did not attack the complaint by motion but instead answered the complaint and put at issue many of the vital allegations of the complaint and specifically denied the performance of all conditions precedent to foreclose a mechanics lien.

At the close of appellant’s case in chief, appellees moved for a directed verdict on the grounds that appellant had not proven' a cause of action because it had failed to prove it furnished appellees with the affidavit required by Section 713.06(3)(d) (1975). The trial court reserved ruling and heard the remainder of the case, after which the court granted appellees’ motion and dismissed the claim for foreclosure of the mechanic’s lien and, in due course, entered final judgment for appellant for breach of contract in the amount of $7,655.01.

Appellant appealed from both the order directing a verdict against it on the claim for a mechanic’s lien and from the final judgment.- The two appeals were consolidated. In our opinion the trial court ruled correctly on this record. Appellant’s main contention is that it was not necessary for it to allege that it furnished the affidavit in question because the evidence shows there were no other subcontractors, laborers or materialmen under appellant who were unpaid. While we concede that there are circumstances where one can plead a cause of action to foreclose a mechanic’s lien without alleging compliance with 713.-06(3)(d), this is not such a case. Here there is no pleading containing allegations to meet or to obviate the requirements of that section. In addition, there is no evidence in the record in appellant’s case which proves that as a matter of fact the statutory section was either complied with or was not applicable. Thus, when appel-lees moved to dismiss (they actually moved for directed verdict) appellant had neither pleading nor proof to justify remaining in court. Appellant points to some testimony of Boca Raton Land Development’s President adduced in appellee’s case, but it was inadequate to meet appellant’s burden and •it came too late.

Appellant also suggests in its reply brief that appellant was not required to furnish the final payment affidavit in question because Appellee-Boca Raton Land Development, Inc., was both the owner and contractor. Appellant relies upon Orange Plumbing & Heating Co. v. Wolfe, 89 So.2d 671 (Fla.1956), and Brown v. First Federal Savings & Loan Association of New Smyrna, 160 So.2d 556 (Fla. 1st DCA 1964), for the proposition that “the Supreme Court expressly sanctioned and confirmed the exception to the necessity of furnishing the sworn affidavit prior to the institution of suit where the owner was also the general contractor.” This reliance upon those cases for that position is misplaced. The principle announced there relevant to this inquiry is that privity of contract between the lien claimant and the owner when the owner acts as his own contractor obviates the necessity of the lien claimant filing a notice of claim of lien and not the affidavit required by 713.06(3)(d) (which used to be found in 84.04(3), Florida Statutes (1959)). The fact that the owner is also acting as his own general contractor does not excuse a lien claimant who is a “contractor” within the meaning of Section 713.01(2), Florida Statutes (1975), from furnishing the affidavit required by Section 713.06(3)(d), Florida Statutes (1975).

Lastly, since appellant failed to recover on its complaint to enforce a mechanic’s lien, it was not entitled to an award of attorney’s fees. Nelson’s, Inc. v. Halifax Construction Company, 305 So.2d 840 (Fla. 3rd DCA 1974).

The judgment and order from which these appeals were taken are affirmed.

AFFIRMED.

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

      . Brown v. First Federal Savings & Loan Association of New Smyrna, 160 So.2d 556 (Fla. 1st DCA 1964).


author: PER CURIAM.

text:
    The LAKE COUNTY EDUCATION ASSOCIATION, Appellant, v. The SCHOOL BOARD OF LAKE COUNTY, Florida, Appellee.
    No. 77-386.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.

      Patricia A. Renovitch, Tallahassee, for appellant.
    Leo P. Rock, Jr., of Rock & Brown, Orlando, for appellee.
   PER CURIAM.

This is an appeal from an order of the circuit court vacating an arbitrator’s decision in favor of a teacher in a dispute with the school board concerning reappointment as a nontenured teacher. See Section 682.-20(l)(e), Florida Statutes (1975).

William J. Meyers was employed by the School Board of Lake County (School Board) for the 1975-76 school year as a vocational education teacher at Umatilla High School. As such, he was a member of a unit of School Board employees for which the Lake County Education Association (Association) had been certified as the collective bargaining representative. This was the first year that Mr. Meyers had been employed as a teacher.

The School Board and the Association had entered into a collective bargaining agreement which included the following provisions pertinent to this case:

ARTICLE IV
Association and Teacher Right and Responsibilities
L. Teachers will be treated fairly and equitably in the application of School Board policy.
ARTICLE VI
Grievance Procedure
F. Powers of the Arbitrator.
1. It shall be the function of the arbitrator, and he shall be empowered, except as his powers are limited below, after due investigation, to make a decision in cases of alleged violation of the specific articles and sections of this Agreement. He shall have no power to add to, subtract from, disregard, alter, or modify any of the terms of this Agreement.
2. In dealing with the equitable application of School Board policy, the arbitrator shall have no power to change any policy, or rule of the Board, nor to substitute his judgment for that of the Board as to the reasonableness of such policy or rule. The arbitrator shall be concerned only with whether a School Board policy is being equitably applied to the member(s) of the bargaining unit. The arbitrator’s award shall be limited only to rectifying the inequity-
ARTICLE VIII
Teacher Evaluation
A. The evaluation and assessment of the performance of each teacher is solely the responsibility of the administration and may not be delegated.
J. No teacher shall have his employment discontinued nor be demoted, dismissed, suspended or reduced in rank except for proper cause.

On March 1, 1976, the school principal informed Mr. Meyers that he did not intend to recommend him for reappointment. The principal noted Mr. Meyers’ deficiencies in the areas of “pupil control, following policy in grading, filing reports on time, curriculum planning, and financial control.” Later in March, the School Board approved the recommendation not to reappoint Mr. Meyers for another year.

As a result of the School Board’s decision, Mr. Meyers filed a grievance which proceeded to arbitration. The arbitrator determined that there was no just cause for the refusal to renew Mr. Meyers’ contract. He concluded that the evidence did not fully support the conclusion that Mr. Meyers was deficient in all of the areas noted by the principal and that those shortcomings which had been proven to exist were not serious enough to warrant a decision not to reappoint. The arbitrator ordered the School Board to offer Mr. Meyers a contract for the current year and to make him whole for lost wages. The arbitrator noted that evaluations of Mr. Meyers occurring after March 1, 1976, reflected substantial improvement, and he held that the School Board had improperly limited its evaluation to a period which ended March 1,1976. He also observed that Mr. Meyers had not been treated equitably because another teacher who had some of the same deficiencies had been given three one-year probationary contracts before she was not reappointed.

The School Board filed an application in circuit court to vacate and/or modify the arbitration award. The Association cross-applied for confirmation of the award. The court granted the School Board’s motion to vacate upon the predicate that the arbitrator had exceeded his power “by disregarding applicable terms of the collective bargaining agreement by substituting his judgment for that of the School Board as to reasonableness of School Board’s policies and rules.”

Section 682.13, Florida Statutes (1975), provides the exclusive grounds for vacating an arbitration award. The court below relied upon subsection ,(1)(c) which states:

(c) The arbitrators or the umpire in the course of his jurisdiction exceeded their powers.

In this appeal the Association argues that because the collective bargaining agreement provided that a teacher should not have his employment discontinued “except for proper cause,” the arbitrator was within his authority to pass upon the question of whether “proper cause” existed. The School Board argues that the arbitrator exceeded his authority by disregarding those provisions of the collective bargaining agreement which specifically provided that the responsibility for evaluation and assessment of teacher performance rests solely with the administration. The School Board also argues, as it did below, that the provision of the collective bargaining agreement which states that no teacher should have his employment discontinued “except for proper cause” is invalid, at least with respect to nontenured teachers, as contrary to the public policy expressed in the statutes of the State of Florida. While the lower court did not base its decision upon the latter contention, we have chosen to do so because we find the arguments in support thereof compelling. Consequently, it is unnecessary to pass on whether the court properly concluded that, given the authority to determine whether Mr. Meyers was not reappointed for “proper cause,” the arbitrator exceeded his power by substituting his judgment for that of the School Board.

The question upon which we decide this case may be stated as follows: Can a school board enter into a collective bargaining agreement under which its decision not to reappoint a nontenured teacher must be based upon proper cause? We answer this question in the negative.

This is an issue of first impression in Florida, but the matter has been considered in recent years by a number of other states which authorize public employee bargaining. The authorities are divided.

In Cohoes City School District v. Cohoes Teachers Association, 40 N.Y.2d 774, 390 N.Y.S.2d 53, 358 N.E.2d 878 (N.Y.Ct.App.1976), the highest court of New York ruled that a provision requiring just cause for a nontenured teacher’s termination at the end of the probationary period was unenforceable as against public policy. The court stated:

This responsibility, with the accompanying grant of enabling authority, to select and screen the teaching personnel in the school must be exercised by the board for the benefit of the pupils and the school district and cannot be delegated or abnegated. Accordingly, it is beyond the power of the board to surrender this responsibility as part of any agreement reached in consequence of collective bargaining. “As a matter of educational policy, and in the interest of maintaining adequate standards in the classrooms, the dismissal of a probationary teacher is a matter vested by law in the board of education upon appropriate recommendation of the district superintendent of schools and not properly a matter for negotiation or the application of employee grievance procedures.”

Cohoes City School District, supra, 390 N.Y.S.2d at 55, 358 N.E.2d at 880.

.The court in Wesclin Education Association v. Board of Education, 30 Ill.App.3d 67, 331 N.E.2d 335 (1975), reached the same conclusion on the same point. The court reasoned that just as the school board could not negotiate an agreement that would abrogate the statutorily mandated procedural safeguards accorded tenured teachers, neither could it abrogate its statutorily mandated flexibility to dismiss unqualified probationary teachers. The court held that a school board may not establish conditions precedent to the dismissal of nontenured teachers which are in excess of the conditions imposed by the School Code. In referring to nontenured teachers, the court made the following observation:

Such teachers are not in an “on the job training” status, but are employed as persons qualified by training and practice under the supervision, guidance and training furnished by other educational institutions. Since some of those so qualified may not be capable of serving the best interests of the school, the Legislature has seen fit to allow a broad discretion in termination of their employment, as being in the best interests of the school. Since they have not completed their probationary period they have no vested interest in their employment, of which they are deprived by compliance with the applicable provisions of the School Code in the termination of their employment.

Wesclin Education Association, supra, 331 N.E.2d at 342. Shortly thereafter the Third Appellate District of Illinois, in Lockport Area Sp. Ed. Coop. v. Lockport Area Sp. Ed. Coop. Assoc., 33 Ill.App.3d 789, 338 N.E.2d 463 (1975), followed the lead of its sister court.

The courts of Massachusetts arrived at the same result in a series of decisions last year. School Committee of Danvers v. Tyman, 360 N.E.2d 877 (Mass.1977); Dennis-Yarmouth Regional School Committee v. Dennis Teachers Assoc., 360 N.E.2d 883 (Mass.1977); School Committee of West Bridgewater v. West Bridgewater Teachers’ Assoc., 360 N.E.2d 886 (Mass.1977). Several years before, the Connecticut Supreme Court had adopted the rule by way of dictum. West Hartford Education Assoc. v. DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972).

On the other hand, the courts of Michigan, Pennsylvania, and Vermont have reached contrary conclusions. Brown v. Holton Public Schools, 74 Mich.App. 206, 254 N.W.2d 41 (1977), rev’d on other grounds, 401 Mich. 398, 258 N.W.2d 51 (1977); Board of Education v. Philadelphia Federation of Teachers, Local No. 3, 464 Pa. 92, 346 A.2d 35 (1975); Danville Board of School Directors v. Fifield, 132 Vt. 271, 315 A.2d 473 (1974). In essence, these decisions hold that the respective school boards had the power to contract regarding terms and conditions of employment and that the non-renewal of a teacher’s employment contract and the resolution of labor disputes through binding arbitration were matters relating to terms and conditions of employment. Thus, these courts ruled that the inclusion of a just or proper cause provision in the collective bargaining agreement did not constitute an invalid delegation of authority-

We are persuaded by the logic of the New York, Illinois, and Massachusetts decisions that a school board has no authority to include in a collective bargaining agreement a provision that a nontenured teacher may only be denied reappointment upon just or proper cause. Our statutes provide that the school board alone has the power and duty to dismiss its employees. Section 230.23(5), Florida Statutes (1975). Yet, the existence of a “proper cause” provision in the collective bargaining agreement with respect to the reappointment of nontenured teachers necessarily limits the exclusive authority otherwise vested by law in that board. The practical effect of a proper cause provision is to transfer the ultimate responsibility for reappointment of nontenured teachers to an arbitrator. The instant case provides a good illustration of why this is so.

The school administration decided that Mr. Meyers had various shortcomings which dictated that he not be rehired for another year. The School Board accepted the superintendent’s recommendation and declined to reappoint him. Yet, after hearing extensive testimony concerning Mr. Meyers’ performance as a teacher, the arbitrator concluded that even though he may have had some deficiencies they were not sufficient to warrant a decision not to rehire.

In this posture the arbitrator’s decision became subject to judicial review. However, the standard of judicial review of an arbitrator’s decision is extremely limited. Affiliated Marketing, Inc. v. Dyco Chemicals & Coatings, Inc., 340 So.2d 1240 (Fla. 2d DCA 1976). The arbitrator is the sole and final judge of the evidence and the weight to be given to it. Bankers & Shippers Insurance Co. v. Gonzalez, 234 So.2d 693 (Fla. 3d DCA 1970). The fact that the relief granted is such that it could not or would not be granted by a court of law or equity is not a ground for vacating the award. Section 682.13(1), Florida Statutes (1975). The arbitrator himself recognized that he was not supposed to substitute his judgment for that of the School Board, but he observed “it is nonetheless plain that respect for the judgment of the school officials in this regard does not prohibit the arbitrator from concluding on the evidence adduced at the hearing that there was no just cause for the action taken by School.” Even though it might be articulated that he second-guessed the School Board, does this mean that the arbitrator “in the course of his jurisdiction exceeded (his) powers?” Section 682.13(1)(c). In the final analysis, if the determination of just or proper cause for termination is a matter for arbitration, the arbitrator, rather than the school board, will generally have the last word.

It should be noted that several of the opinions cited in support of our ruling are careful to point out that public policy does not prohibit a school board from entering into a collective bargaining agreement which defines the procedures to be followed in making teacher evaluations which may lead to a decision not to reappoint a nontenured teacher. Where an agreement has been reached on procedures, the arbitrator’s decision granting a nontenured teacher relief because of the failure to follow such procedures has been upheld. Cohoes City School District v. Cohoes Teachers’ Assoc., supra; School Comm. of West Bridgewater v. West Bridgewater Teachers’ Assoc., supra. This distinction is not pertinent to the instant case because the essence of the arbitrator’s decision was that the refusal to reappoint Mr. Meyers was made without just cause rather than as the result of a failure to follow agreed upon procedures.

To the extent that the arbitrator’s decision suggested that the School Board was prohibited from reaching the conclusion not to reappoint Mr. Meyers until a full year’s probationary status had transpired, it was incorrect because such a conclusion is clearly beyond the arbitrator’s authority. After conferring with his principals, the superintendent is required to submit nominations for reappointment at least six weeks before the end of the post-school conference period. Section 230.33(7)(d), Florida Statutes (1975). The School Board is required to act upon the superintendent’s teacher nominations not less than four weeks before the close of the post-school conference period. Section 230.23(5)(c), Florida Statutes (1975). The collective bargaining agreement itself required that a teacher must be notified in writing by April 1 of his principal’s recommendation that he not be reappointed for the forthcoming year. Consequently, it was reasonable for the principal’s original recommendation to be made by March 1, and there is no authority for the proposition that subsequent evaluations had to be considered in connection with the ultimate determination by the School Board.

It is the public policy of Florida as expressed by statute that our elected school boards shall have the exclusive prerogative to decide whether to reappoint nontenured teachers. There is nothing in the public employee bargaining provisions of Chapter 447 which suggests anything to the contrary. The courts have not hesitated to vacate an arbitration award which seeks to enforce an underlying agreement which is contrary to public policy. E. g., Goodyear Tire & Rubber Co. v. Sanford, 540 S.W.2d 478 (Tex.Civ.App.1976); Botany Indus., Inc. v. Amalgamated Clothing Workers of America, 375 F.Supp. 485 (S.D.N.Y.1974), vacated as moot 506 F.2d 1246 (2d Cir. 1974). Therefore, the order vacating the arbitration award is affirmed.

HOBSON, Acting C. J., and GRIMES and RYDER, JJ., concur.

      . We are not dealing with the question of whether a proper cause provision with respect to the discipline and discharge of a nontenured teacher during the contract period may be the proper subject of a collective bargaining agreement. Cf. Duval Teachers United v. Duval County School Board, Case No. 8H-CA-764-3134, PERC Order No. 77U-202 (April 19, 1977).

      . Of course, those teachers who have acquired tenure are afforded the protection of Section 231.36, Florida Statutes (1975).


author: SCHEB, Judge. PER CURIAM.

text:
    Earl R. DeHART, Appellant, v. Doris Ann DeHART, Appellee.
    No. 77-1662.
    District Court of Appeal of Florida, Second District.
    June 28, 1978.
    Rehearing Denied Aug. 2, 1978.

      Charles J. Cheves, Jr., of Cheves, Hazen & Rapkin, Venice, for appellant.
    C. Eugene Jones of Ginsburg & Byrd, Sarasota, for appellee.
   SCHEB, Judge.

This is an appeal from a final judgment of dissolution of marriage. Appellant Earl DeHart (husband) contends the trial court abused its discretion by imposing financial responsibilities upon him which he does not have the ability to meet. We agree and reverse.

In May 1977 the husband filed a petition for dissolution. Doris DeHart (wife) coun-terpetitioned, asking for child custody and support, alimony, and attorney’s fees. The wife also asked that the husband’s interest in the jointly owned marital home be given to her as lump-sum alimony, or in the alternative that she be granted sole possession of the home.

The final hearing was conducted on August 24, 1977, and the final judgment of dissolution was rendered the following month. The judgment granted custody of the parties’ four children to the wife, and gave her exclusive use of the marital home until further order of the court. The husband was ordered to pay the taxes, insurance, and mortgage payments on the home, as well as certain pre-existing debts owed by the parties. He was also commanded to pay $10 per week alimony, $50 per week child support, and $300 attorney’s fees to wife’s counsel.

The trial court is, of course, best qualified to sort out domestic-relations problems and arrive at the most equitable result under the circumstances. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). It is a well recognized principle that appellate courts should not substitute their judgment for that of the trial court by re-evaluating the testimony, Herzog v. Herzog, 346 So.2d 56 (Fla.1977), and that the trial court must be upheld unless an appellant clearly shows that the trial court has abused its discretion. Sisson v. Sisson, supra; Moses v. Moses, 344 So.2d 1322 (Fla. 2d DCA 1977). And while appellate courts are reluctant to disturb the findings and judgments of a trial court, particularly in respect to financial awards in marital cases, it nevertheless becomes our duty to do so when an award is clearly not supported by substantial, competent evidence. Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

To assess whether the trial court abused its discretion in making the awards now challenged by the husband, we must review the facts and financial circumstances developed at the hearing before the trial court where, except for a witness who testified as to residency, only the parties testified. The DeHarts were married in 1962 and have four children, ages 13, 11, 6, and 5. The husband holds a B.S. degree in physical education. Several years ago, after spending ten years in the Marine Corps, husband reentered civilian life and ventured into the employment service business. After this endeavor failed, he became a car salesman and part-time substitute teacher. He lost his sales position in May 1977, but went to work as a commission salesman for a used car business in July.

For the three years prior to the dissolution, husband’s income averaged less than $500 per month. During the first seven months of 1977 his gross income was approximately $650 per month. Admittedly this latter monthly figure is somewhat distorted, as husband was unemployed during June and was in the first month of his new job in July. Since the final hearing was in August, husband’s income potential from his new position remained a matter of speculation. This uncertainty was compounded by the fact that at the time of the hearing husband did not know if his new employer would allow him to substitute teach during the impending school year, a source from which he had derived a significant portion of his income in the past.

The wife had two years of college. She did babysitting in her home during 1976 and on occasion did substitute teaching. At the time of the hearing she was enrolled in a federally sponsored vocational program, training to become a medical technician. She expected to complete the course in July 1978.

The DeHarts acquired their home as tenants by the entirety in 1974. The home, which initially cost $40,000, had an outstanding mortgage of around $26,000. Husband valued the home at $34,000; wife at $37,500. Other assets of the parties were minimal.

There was an abundance of evidence before the trial court demonstrating that the wife and children had a substantial need for financial assistance from the husband. However, the question presented by this appeal is whether the husband had the ability to pay what he was required to by the final judgment. Translated into dollars on a monthly basis, the judgment required the husband to pay the following:

Alimony $ 43
Child Support 215
Mortgage Payment 223
Taxes and Insurance 40
Total $521

So the stage is set for us to review another domestic break-up where the parties were barely making a go of it financially while together, and now are faced with deploying their limited assets in maintaining two separate homes. The husband is in good health, but with a history of modest income levels. The wife is presently in school and is not qualified to immediately enter the job market; besides, she bears the responsibility of caring for the four children. Trial judges constantly face this type of dilemma. All the ingredients are here— the obvious need for support, limited income potential, and minimal assets. And frequently, as here, the situation is exacerbated by harsh feelings between the parties.

From our review of the evidence it appears that husband would be left with only about $100 to sustain himself after meeting the financial requirements imposed by the judgment. Courts know, as everyone else does, that it just is not practical to expect a person to live on such a meager amount. We must agree with the husband that this case devolves into a question of simple arithmetic. The figures just do not show he had the ability to meet the financial obligations imposed upon him by the judgment. Since the husband’s ability to pay is an essential consideration that must be demonstrated when a trial court imposes financial obligations upon him, Lytton v. Lytton, 289 So.2d 17 (Fla. 2d DCA 1974), we cannot wholly sustain the judgment we are called upon to review.

We note that the wife sought to obtain the marital home as lump-sum alimony, but the court granted her exclusive use of the home instead. While it is not our function to redesign the judgment fashioned by the trial court, we nevertheless are compelled to observe that if the wife had been granted the husband’s interest in the home she may have been able to sell that property and from the funds realized to obtain more modest quarters.

In sum, we reverse so much of the final judgment of dissolution as grants the wife exclusive use of the marital home; requires husband to pay all taxes, insurance, and mortgage payments on the home; and requires husband to pay alimony and child support. In all other respects the judgment is affirmed. We therefore remand to the trial court with directions to reconsider these elements of the final judgment and fashion financial requirements commensurate with the husband’s ability to pay.

More than nine months have elapsed since the judgment of dissolution was entered by the trial court. At the time of final hearing husband was in a transitional phase of his career, having just accepted new employment. Wife was newly enrolled in her medical-technician course, which she should soon complete. Recognizing these factors, the trial court may choose to take additional testimony as to the present need and ability of the parties in order to fashion an equitable judgment. See Burns v. Burns, 153 Fla. 73, 13 So.2d 599 (1943).

Affirmed in part, reversed in part, and remanded to the trial court for further proceedings consistent with this opinion.

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

ON PETITION FOR REHEARING

PER CURIAM.

By petition for rehearing appellee wife expresses concern that our opinion, which reversed the portion of the final judgment of dissolution granting her exclusive use of the marital home, makes it possible for appellant husband to move back into the home before the trial court refashions a new judgment as we ordered in the opinion. Recognizing this as a valid contention, we hereby order that the wife’s right to exclusive possession of the marital home shall continue until the trial court has entered a new judgment adjusting the husband’s financial obligations.

Appellee wife also questions whether our opinion has the effect of awarding her lump-sum alimony. Though we did observe that if the wife had been granted the husband’s interest in the marital home she might have been able to sell the home and obtain more modest quarters, we did not mean to imply in any manner that the trial court was being commanded to award the wife the home as lump-sum alimony in its new judgment. Our reversal of the wife’s exclusive use of the marital home was solely for the purpose of affording the trial court maximum flexibility in redesigning its judgment.

Appellee wife’s other contentions in her petition for rehearing are without merit; therefore, except as heretofore provided, the petition for rehearing is denied.

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

      . Of course, husband’s payments for mortgage reduction, taxes, and insurance are for the home, of which he is now a tenant in common with his former wife.

      . The trial court made no finding that the husband was under-employed or had failed to make sufficient efforts to secure employment consistent with his qualifications.


author: OTT, Judge.

text:
    Diane Clarise Sizemore RUSZALA, Appellant, v. Gerald Henry RUSZALA, Appellee.
    No. 77-1446.
    District Court of Appeal of Florida, Second District.
    June 30, 1978.
    Rehearing Denied Aug. 2, 1978.

      Scott R. Nabors, Panama City, for appellant.
    D. J. Bradshaw of Bradshaw & Mountjoy, Inverness, for appellee.
   OTT, Judge.

Appellant/ex-wife appeals several aspects of a final judgment of dissolution of marriage. We agree with her contention that permanent alimony and attorney’s fees should have been awarded.

The lower court made no provision for permanent alimony and ordered the ex-husband to pay rehabilitative alimony of $100 per month for 12 months. We hold that such an award under the evidence in this case constituted a gross abuse of discretion.

The ex-husband’s ability to pay permanent alimony has been established. His salary rose from $22,622 in 1974 to $42,190 in 1976. His occupation — that of a start up engineer — is by his own admission a stable one. He testified that there exists strong demand in his particular field. Although he has produced evidence that his financial picture is not as favorable at the present time — i. e., his gross wage is $560/week rather than $590 week — he has the ability to support his ex-wife.

The ex-wife’s health is poor — she is legally blind. She is a person of limited education and is obviously much less equipped to be able to work at this time than she was at the time of their marriage 15 years ago [at which stage her only employment experience was that of a waitress]. She must be driven by someone else (or walk) and cannot read except with great difficulty and limited results. That she is accepted or qualified as totally disabled under Social Security is a good indication of the severity of her condition. In short, she has little potential for self-support.

The ex-wife should seek rehabilitation so that she can enter some useful and remunerative occupation or employment and the trial court is correct in encouraging her to do so. Under the circumstances this will be far more difficult than it ordinarily would be. Education and training of such handicapped persons is not readily available and no doubt comes at an increased cost. All of this was known to the trial court but there was no definitive evidence suggesting reliable answers as to what, where, how long and the cost of rehabilitation or likelihood of its success. Accordingly, permanent alimony is proper. As this court pointed out in Lash v. Lash, 307 So.2d 241, 243 (Fla. 2d DCA 1975):

[Rehabilitative alimony presupposes the potential for self-support. Without this capacity, there is nothing to which one can be rehabilitated.

See Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974).

Until the nature and extent of the appellant’s capacity for rehabilitation can be reasonably established there is no way, under the evidence in this case, to even conclude that she can be rehabilitated, let alone how long it will take, the cost thereof and what financial return it will command once accomplished. We therefore reverse or strike that part of the final judgment awarding the ex-wife $100 per month rehabilitative alimony and set permanent alimony at $250 per month.

After our award the ex-wife will receive $250 per month in permanent alimony, $201 per month in Social Security benefits and $125 per month as child support for a monthly total of $576.00. The ex-husband will pay the $375 in alimony and child support out of his monthly gross income of approximately $2,425 ($560 per week X 4V3 weeks). We are not unsympathetic with the ex-husband’s net income situation considering his increased salary deductions and other expenses. However, economic adjustments necessarily follow in these situations. Furthermore, we believe that the ex-husband’s payment of what amounts to about one week’s net salary per month will not be too great a sacrifice especially in view of his improved tax situation.

Several Florida decisions in which permanent alimony was awarded involved ex-wives who were also poorly equipped to support themselves. In Messer v. Messer, 342 So.2d 1076 (Fla. 2d DCA 1977) this court held that the trial court had abused its discretion in failing to provide permanent alimony to a wife who was 58 years old with “some physical and emotional impairment.” The court pointed out that she would have difficulty in finding employment.

In Norton v. Norton, 328 So.2d 484 (Fla. 1st DCA 1976) the court affirmed an award of permanent alimony noting that although the wife had worked outside the home during the 19 year marriage, she now had a physical condition (a heart murmur) which would make it difficult for her to find employment.

In McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976) the court ordered permanent alimony stating that the 43 year old wife had no income or training. The court pointed out that the wife would be 54 years old at the time the alimony terminated and that there was no way to determine her ability to support herself at that time.

In Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla. 3d DCA 1977) the wife had medical problems (high blood pressure and a kidney ailment). The court held that a failure to award permanent alimony to the 46 year old wife, who had not worked since the first days of their marriage 24 years before, would constitute an abuse of discretion.

In West v. West, 345 So.2d 756 (Fla. 4th DCA 1977) the court ordered permanent alimony where the wife was 57 years old and had not worked for 35 years. The court found that the record was bereft of any indication of the wife’s potential for self-support.

Finally, in McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977) the court held that if the lower court’s award was allowed to stand ($500 a month rehabilitative alimony for 5 years; $500 a month permanent alimony until his death or her remarriage) the wife would be financially “devastated.”

We think the appellant’s condition and circumstances are far worse than any of those dealt with in the foregoing cases.

Also, in error was the lower court’s denial of attorney’s fees. The court evidently felt the ex-wife and the ex-husband’s relative financial positions established the ex-wife’s need and the ex-husband’s ability to contribute in this regard but denied any fee on the basis of no acceptable evidence as to the amount of fee to be allowed the ex-wife’s attorney. The ex-wife offered the testimony of two experts on the proper amount of the fee. Both were fully qualified and the court accepted them as experts entitled to express an opinion on the value of legal services in such cases. The following colloquy occurred during the cross examination of the first export (Fitzpatrick):

Q. Mr. Fitzpatrick, is your opinion based strictly upon — you said Eighteen Hundred Dollars?
A. Yes.
Q. Is that based strictly upon the examination of those two files.
A. No.
Q. Is it based in part upon what Mr. Pattinson [attorney for the wife] told you?
A. In part.
MR. BRADSHAW: Your Honor, we move to strike the testimony of the witness as to his opinion because .
THE COURT: Motion granted.

Prior to this exchange, Fitzpatrick had testified that he had reviewed both the attorney’s file (for 1 hour) and the court file (for 20 minutes).

The second expert called by the ex-wife was Kovach. Kovach testified that he had spent two hours reviewing the files. He also explained what he regarded as important in the files and as to his experience in domestic relations matters. Then the following exchange occurred:

Q. [By wife’s attorney] Based upon your examination that you have already testified of the Court file and my personal file, do you have an opinion as to the value of my services rendered?
A. I do.
Q. What is that opinion?
MR. BRADSHAW: To which we object, your Honor, because it would be based upon the facts that are not in evidence and it is an improper statement of facts and the hypothetical question.
THE COURT: Objection sustained.

As with the striking of Fitzpatrick’s testimony the sustaining of the objection to Kovach’s testimony is based upon a highly technical approach to the admissibility of evidence. The result contravenes traditional standards of justice and fair play and results in arbitrarily penalizing the ex-wife. Under such circumstances we cannot condone the action of the lower court in denying the ex-wife a fair opportunity to prove attorney’s fees.

We find no merit with the ex-wife’s other contentions. We note in passing that it is difficult to reconcile the court’s effective denial of costs to the ex-wife [the ex-wife’s itemized costs totaled $572.71; the court awarded $37.50]. However, the ex-wife has failed to make error appear.

We reverse the lower court’s granting of rehabilitative alimony and direct that the ex-husband pay permanent alimony of $250 per month. We remand the question of an appropriate award of attorney’s fees, both in the proceedings below and on this appeal, to the lower court for it to allow and fix an adequate fee in subsequent proceedings.

BOARDMAN, C. J., and HOBSON, J., concur.


author: SMITH, Judge.

text:
    Carolynn W. WALKER, etc., Petitioner, v. STATE of Florida, DIVISION OF RETIREMENT, Respondent.
    No. II-490.
    District Court of Appeal of Florida, First District.
    July 12, 1978.
    Rehearing Denied Aug. 18, 1978.

      P. Kevin Davey of Douglass, Powell & Davey, Tallahassee, for petitioner.
    L. Keith Pafford, Division Atty., and E. Douglas Spangler, Jr., Asst. Division Atty., Division of Retirement, Tallahassee, for respondent.
   SMITH, Judge.

Ronnie Walker, a deputy sheriff employed by Leon County, was killed in a collision while driving his car home after completing his duty shift. The facts are as stated in Walker v. Life Ins. Co. of North America, 359 So.2d 471 (Fla. 1st DCA 1978). The widow’s claim for “in line of duty” death benefits under the Florida retirement law was denied by a Division of Retirement order reaching a different conclusion on facts found by a hearing officer of the Division of Administrative Hearings. The widow seeks reversal of the agency order.

We agree with the Division that Deputy Walker’s death did not occur “in line of duty.” That phrase is defined for present purposes by Section 121.021(14), Florida Statutes (1977), as follows:

“Death in line of duty” means death arising out of and in the actual performance of duty required by a member’s employment during his regularly scheduled working hours or irregular working hours as required by the employer.”

We previously noted a similarity in the causative test employed in the workmen’s compensation law, Chapter 440, and in the retirement law. Bolinger v. Division of Retirement, 335 So.2d 568 (Fla. 1st DCA 1976). In Bolinger the principal issue was whether the retiree’s injury could be characterized as “arising out of” her employment, a causative test adopted from the workmen’s compensation law. Bolinger’s injury undoubtedly occurred “in the actual performance” of her duty, and there was no issue concerning that. Here that is the critical question. While “in the actual performance of duty,” like “in the course of employment,” is a test concerned with the time, place, and circumstances in which the injury or death occurred, those two tests are not identical. We do not conceive that the phrase “in the actual performance of duty” can reasonably be read to embrace the policeman’s exception to going and coming rule, established by decisions under the workmen’s compensation law. E. g., Warg v. City of Miami Springs, 249 So.2d 3 (Fla.1971).

AFFIRMED.

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


text:
    Nina BLOWERS, Appellant, v. Ann L. WILLIAMS, Appellee.
    No. II-301.
    District Court of Appeal of Florida, First District.
    July 18, 1978.
    Rehearing Denied Aug. 21, 1978.
    Chester J. Trow, of Pattillo, MacKay & McKeever, P.A., Ocala, for appellant.
    Young J. Simmons, of Green, Simmons, Green & Hightower, P.A., Ocala, for appel-lee.
   SMITH, Judge.

Substantial competent evidence supports the trial court’s finding that appellee established a prescriptive easement along the border of appellant’s grove, for access to appellee’s interior land and grove. Downing v. Byrd, 100 So.2d 57 (Fla.1958); City of Daytona Beach v. Tona-Rama, Inc., 294 So.2d 73 (Fla.1974). The trial court evidently found that appellee’s additional use of the easement, for access to and from a proposed dwelling, would not unreasonably increase the burden of the easement established for grove maintenance. Crutchfield v. F. A. Sebring Realty Co., 69 So.2d 328 (Fla.1954). On this record we find no error in that decision, although neither the trial court’s judgment nor this one should be read as authorizing appellee to pave or otherwise improve the easement way in a manner detrimental to appellant’s adjacent grove. See Choctawhatchee Electric Cooperative, Inc. v. Moore, 220 So.2d 20 (Fla. 1st DCA 1969); Corrigans v. Sebastian River Drainage District, 223 So.2d 57 (Fla. 4th DCA 1969).

AFFIRMED.

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