text:
    AMERICAN HOME ASSURANCE COMPANY, a Foreign Corporation, Appellant, v. CITY OF OPA LOCKA, Florida, a Political Subdivision of the State of Florida and the Travelers Insurance Company, a Foreign Corporation, Appellees.
    Nos. 77-2648, 78-84.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.

      Fowler, White, Burnett, Hurley, Banick & Knight and Fred R. Ober, Miami, for appellant.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

American Home Assurance Company, the defendant below, appeals from a judgment against it in an indemnification action brought by the plaintiffs-appellees, Travelers Insurance Company and the City of Opa Locka. We affirm the judgment except for the attorney’s fees awarded below to the plaintiffs for their prosecution of the present proceeding.

An Opa Locka police officer, Kenneth LeMuer, the City of Opa Locka itself, and the Travelers Insurance Company were named as party defendants in a wrongful death action arising out of an incident in which the officer shot and killed a man named Daniel Little. The city was insured by a general liability policy issued by Travelers; the policy did not insure the individual officer. LeMuer was, however, specifically afforded coverage as an additional insured in an American Home Insurance Company “police professional coverage” policy as to which Opa Locka was the named insured. Notwithstanding the fact that its policy did not cover the officer, Travelers filed an answer on his behalf as well as for its insured, Opa Locka, and, of course, itself. Through its counsel, it continued to represent all three parties throughout the entire progress of the wrongful death case. Travelers defended LeMuer, however, only under a specific reservation agreement which preserved its right to deny coverage — a right which clearly existed since there was no question that Travelers did not insure the officer and owed him no duties either of defense or of payment.

In the meantime, American Home, which had investigated the incident immediately after it occurred and was at all times informed as to the progress of the wrongful death case, did nothing whatsoever with respect to its self-acknowledged duty to defend its insureds, LeMuer and Opa Locka. Although Travelers, at several stages, informed American Home’s counsel that it regarded American Home as the insurer primarily liable and although it first invited and then demanded that American Home at least participate in the defense, American Home declined to appear directly in the case in any way. It did so apparently on the grounds that it had never been formally tendered suit papers and that Travelers’ counsel was doing an effective job anyway. A fair reading of the correspondence which flew between counsel and the companies leads one to the conclusion that American Home made a conscious decision “not to get involved,” to take its chances, and to hope for the best.

At the conclusion of the jury trial in the Little case, the plaintiff recovered a general jury verdict and judgment against all three defendants for $13,600.00. After Travelers had, without success, called upon American Home to satisfy the judgment, it did so itself, presumably on behalf of its insured Opa Locka. Travelers, joined by Opa Locka as an essentially formal party plaintiff, then brought the case now before us against American Home. In this action Travelers sought reimbursement of the entire amount of the plaintiff’s judgment, plus all the expenses, including attorney’s fees of $6,998.00 and costs in the amount of $1,965.72, it had paid in defending the wrongful death case on behalf of the three named defendants. After a non-jury trial, the lower court entered judgment for the plaintiffs and against American Home for the entire amount claimed, $22,563.72. An additional award of $3,375.00 was later granted to the plaintiffs for their attorney’s fees in the successful prosecution of the action against American Home. We find no merit in any of the arguments made by American Home for reversal of the primary judgment, but agree with its claim that the award of attorney’s fees in this action was incorrect.

On the facts presented in the wrongful death case, it is apparent that that action and the resulting judgment for the plaintiff were based on the negligence or intentional tort of LeMuer, as the active tortfeasor, and that Opa Locka was merely vicariously liable as his employer. Since this is true, it is clear that Opa Locka had a right to indemnification, implied by operation of law, for the wrongful death judgment and expenses from LeMuer, and therefore from his carrier, American Home. Stuart v. Hertz Corp., 351 So.2d 703, 705 (Fla.1977); Fincher Motor Sales, Inc. v. Lakin, 156 So.2d 672 (Fla. 3d DCA 1963); Hutchins v. Frank E. Campbell, Inc., 123 So.2d 273 (Fla. 2d DCA 1960). Travelers, as an insurer of Opa Locka which actually expended the sums involved and thus as the city’s subrogee, was likewise entitled to recovery. A. United Auto Rental, Inc. v. Bradley, 352 So.2d 579 (Fla. 3d DCA 1977); Grange Ins. Ass’n. v. Great American Ins. Co., 89 Wash.2d 710, 575 P.2d 235, 239-240 (1978); cf. Atlantic National Ins. Co. v. Erie Ins. Exchange, 211 F.Supp. 878 (S.D.Fla.1962); Annot. 31 A.L.R.2d 1324 (1953).

American Home argues that the indemnity claim does not lie because the plaintiff’s original complaint alleged that Opa Locka was guilty of active misconduct, among other things, in negligently hiring LeMuer. However, as the court held in Insurance Co. of North America v. King, 340 So.2d 1175, 1176 (Fla. 4th DCA 1976):

“We conclude that it is an indemnitee’s actual wrongdoing or lack of it, rather than allegations of wrongdoing, which determine the indemnitee’s rights. A plaintiff should not be able to arbitrarily deprive a defendant of his right to indemnification from a third party by alleging that he was actively negligent when in fact that defendant is found not to have been actively negligent.”

On this record, we cannot interfere with the trial court’s implied finding that the judgment against Opa Locka was based only upon its passive, vicarious responsibility for LeMuer’s actions, notwithstanding what was alleged in the plaintiff’s complaint. See MacArthur v. Gaines, 286 So.2d 608 (Fla. 3d DCA 1973). The King case therefore requires rejection of the appellant’s contention on this issue.

American Home separately contends that it should not be required to reimburse Travelers for that portion of the fees and expenses which was attributable to the defense of Opa Locka. It argues that Travelers was obliged to expend those funds in any case by virtue of the obligation to defend contained in its own insurance policy with the city. Again, we do not agree. Since, as we have seen, the suit which Opa Locka and Travelers were obliged to defend was found to have resulted only from Le-Muer’s active wrongdoing, there can be no doubt that he, and his insurer American Home, are liable for the expenses necessarily expended in that defense. Insurance Co. of North America v. King, supra; Canadian Universal Ins. Co. v. Employers Surplus Lines Ins. Co., 325 So.2d 29 (Fla. 3d DCA 1976), cert. denied, 336 So.2d 1180 (Fla.1976); Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836 (Fla. 2d DCA 1969), cert. denied, 234 So.2d 122 (Fla.1969); Morse Auto Rentals, Inc. v. Dunes Enterprises, Inc., 198 So.2d 652 (Fla. 3d DCA 1967). Expenses incurred by a secondarily liable carrier in the defense of its insured, have been universally awarded when that company sues a primary insurer of the same insured, which should have undertaken that defense. E. g., National Farmers Union Property & Casualty Co. v. Farmers Ins. Group, 14 Utah 2d 89, 377 P.2d 786 (1963); Standard Surety & Casualty Co. of New York v. Metropolitan Casualty Co. of New York, 67 N.E.2d 634 (Ohio App. 1945). These cases apply with even greater force to this situation, in which only American Home, and not Travelers as well, insured the common law indemnitor, LeMuer.

Nothing daunted, American Home then argues that at least it should not repay Travelers for the costs of defending Le-Muer whom Travelers did not insure and whom it therefore had no duty to defend. Once more, the appellant’s arrow falls far short of the mark. It is admitted that by providing the officer with a defense, Travelers was performing an obligation which was properly owed LeMuer only by American Home. See, e. g., Stevens v. Horne, 325 So.2d 459 (Fla. 4th DCA 1975); 18A, Fla. Jur., Insurance, § 812, pp. 64-67, and cases cited. The record shows that American Home deliberately declined to undertake the discharge of its duty to defend after being given ample notice and opportunity to do so, and that Travelers acted as more than a mere “volunteer” in providing counsel for an otherwise unrepresented defendant for whose conduct its insured, the city, was liable. Under these circumstances, we hold that Travelers became subrogated to the officer’s right to recover from American Home the fees and costs due him because of its wrongful refusal to defend. As we said in Allstate Life Ins. Co. v. Weldon, 213 So.2d 15, 18 (Fla. 3d DCA 1968), quoting from Ulery v. Asphalt Paving, Inc., 119 So.2d 432 (Fla. 1st DCA 1960):

“Subrogation, a creation of equity, is founded on the proposition of doing justice without regard to form, and was designed to afford relief where one is required to pay a legal obligation which ought to have been met, either wholly or partially, by another. Trueman Fertilizer Co. v. Allison, Fla., 81 So.2d 734. The right of subrogation has been sustained in almost every conceivable type of transaction where the party invoking it has been required to pay a debt for which another is primarily answerable, and which in equity and good conscience the other ought to pay. * *

Accord, e. g., American Fidelity & Cas. Co. v. United States Fidelity & Guaranty Co., 305 F.2d 633, 634-635 (5th Cir. 1962); see Western Pacific Ins. Co. v. Farmers Ins. Exchange, 69 Wash.2d 11, 416 P.2d 468, 472 (1966) (“Farmers could not, stand aloof from the pending lawsuit . and thus escape responsibility for the expenses of the defense of Formanek when liability ultimately came home to roost.”); Nationwide Mutual Ins. Co. v. General Accident Fire & Life Assurance Corp., 23 Ohio App.2d 263, 262 N.E.2d 885 (1970).

We hold, finally, that the trial court’s award of attorney’s fees for the maintenance of the present action was unauthorized. The asserted basis for the award, Section 627.428(1), Florida Statutes (1975), does not apply. It provides for an allowance of fees when a judgment is rendered “ . in favor of an insured . ” against an insurance company in an action brought “ . . under a policy or contract executed by the insurer . ” [emphasis supplied]. What we have already said, however, shows that this case was not brought “under” American Home’s policy with Opa Locka, but was rather based upon the city’s and Travelers’ indemnity and subrogated rights against American, as the insurer for LeMeur. The plaintiffs’ fees are therefore not recoverable under Section 627.428(1). Arkwright-Boston Mfrs. Mut. Ins. Co. v. Dunkel, 363 So.2d 190, 194 (Fla. 3d DCA 1978); see Smith v. Conlon, 355 So.2d 859 (Fla. 3d DCA 1978); Central Mutual Ins. Co. v. Michigan Mutual Liability Co., 285 So.2d 684 (Fla. 3d DCA 1973).

Furthermore, although Opa Locka was a nominal party plaintiff, the judgment in this case clearly inured entirely to the benefit of Travelers which was not entitled to fees under the holding in Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977):

“ . . . that an award of attorney’s fees under Section 627.428(1) is available only to the contracting insured, the insured’s estate, specifically named policy beneficiaries, and third parties who claim policy coverage by assignment from the insured.”

Central Mutual Ins. Co. v. Michigan Mutual Liability Co., supra.

That portion of the judgment below which awarded the plaintiffs $3,375.00 in attorney’s fees for the instant action is reversed; the judgment under review is otherwise entirely affirmed.

Affirmed in part, reversed in part.

      . The record shows that American Home’s counsel was well satisfied with the result and complimented Travelers’ lawyer for his fine job.

      .Since only American Home insured the active tortfeasor, it is not necessary to resolve the knotty problem as to which company, if either, was the “primary” carrier with respect to their common insured, Opa Locka.

      . The appellant does not suggest how the fees and expenses could be meaningfully apportioned among the various defendants.

      . See n.2, supra.

      . See n.3, supra.

      . Travelers did not secure an assignment from the city or LeMeur of any rights either may have had against American Home.

      . With respect, we disagree with the holding in Brown v. Financial Indemnity Co., 366 So.2d 1273 (Fla. 4th DCA 1979) that a successful indemnitee may recover attorney’s fees for the prosecution of the indemnification case itself, even without a contractual or statutory basis for such an allowance. The Brown opinion cites only our decisions in Fontainebleau Hotel Corp. v. Postol, 142 So.2d 299 (Fla. 3d DCA 1962), and Thomas Awning & Tent Co., Inc. v.

        Toby’s Twelfth Cafeteria, Inc., 204 So.2d 756 (Fla. 3d DCA 1967). The holding in the Postol case, which was quoted and followed in the Thomas Awning case, deals, however, only with the recovery, as part of the indemnitee’s damages, of attorney’s fees required in the original suit for which the right of indemnity lies— just as we have held the wrongful death case fees recoverable from Travelers in this case. The Thomas Awning case merely held that a complaint, which in part sought recovery of those fees, stated a cause of action. If what was plainly dictum in Thomas Awning may be read to go further, we recede from that language. For we know of no basis, in the absence of statute or agreement, for an award of attorney’s fees for either the trial or appellate prosecution of an action for indemnity, any more than any other. E. g., Adler v. Adler, 365 So.2d 411 (Fla. 3d DCA 1978).


source: Caselaw Access Project

author: BARKDULL, Judge.

license: Public Domain

text:
    FLORIDA STATE CONSTRUCTORS SERVICES, INC., a Florida Corporation, Appellant, v. James E. RANDALL and Anna Randall, his wife, Appellees.
    No. 78-720.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.
    Jerry Kahn, Miami, for appellant.
    Ronald A. Gottlieb, Miami, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   BARKDULL, Judge.

Florida State Constructors Services, Inc., appeals an adverse summary judgment which precluded it from pursuing the foreclosure of a second mortgage.

Constructors did some home improvement work for the Randalls on a cash basis, to be paid for within sixty days after completion. No interest or finance charges were levied against the Randalls under this contract. When the Randalls informed Constructors that they could not pay for the work, Constructors took a note and second mortgage on the house. Constructors filed suit for foreclosure of the mortgage, and James Randall responded and counterclaimed seeking, in part, damages for Truth in Lending violations. Volume 15, United States Code Annotated, Section 1640. James Randall then sent a letter of rescission to Constructors, noting that the Truth in Lending Act, etc., gave him the right to do so for Constructors’ failure to disclose certain things at the time the credit was extended. James Randall moved for and was granted a summary judgment, the trial court finding that Randall had effectively rescinded the transaction which was the subject of the foreclosure action. The trial court then ordered Constructors to terminate the security interest and refund the monies previously paid. This appeal ensued.

We reverse. The original transaction was on a cash basis and not within the terms of the Truth in Lending Act. Young v. Tri-City Remodeling Enterprises, Inc., 71 Misc.2d 108, 335 N.Y.S.2d 308 (1972). As an accommodation to the Randalls (after they had refused to pay in accordance with the terms of the written agreement that they had executed) Constructors, for the first time, extended credit and charged interest for deferred payments of a matured and existing debt. This was without the provisions of the Truth and Lending Act, as the underlying obligation was without the Act. It is the nature and character of the underlying obligation that determines whether the Truth and Lending Act is applicable. Meyers v. Clearview Dodge Sales, Inc., 384 F.Supp. 722 (E.D.La.1974); Gerasta v. Hibernia National Bank, 411 F.Supp. 176 (E.D.La.1975); Claire v. LaLanne-Paris Health Spa, 12 Cal.3d 915, 117 Cal.Rptr. 541, 528 P.2d 357 (1974); King v. Central Bank National Assoc., 127 Cal.Rptr. 487 (Ct. App. 1st Dist. 1976). The original contract not being within the Act, the subsequent note and mortgage (changing the transaction from a cash to a deferred basis) did not change the character of the original obligation.

Therefore, the final summary judgment here under review be and the same is hereby reversed, and the cause is returned to the trial court with directions to permit the plaintiff therein to proceed with its foreclosure. [The record reveals that the defendants’ pleadings filed herein have, in fact, raised several defenses other than violation of the Truth in Lending Act which would constitute triable issues on remand.] Upon a final determination thereof [if in favor of the plaintiff], the trial court shall include in its final judgment an award of attorney’s fees for the appellant’s counsel’s services in this court upon appropriate evidence of the value of such services.

Reversed and remanded, with directions.


author: HAVERFIELD, Chief Judge.

text:
    The STATE of Florida, Appellant, v. Luis Alberto NUNEZ, Appellee.
    No. 78-1066.
    District Court of Appeal of Florida, Third District.
    March 6, 1979.

      Janet Reno, State’s Atty., Paul M. Rash-kind and Stephen V. Rosin, Asst. State’s Attys., for appellant.
    Richard Essen, Miami, Robert A. Spiegel, Coral Gables, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   HAVERFIELD, Chief Judge.

The State of Florida appeals an order dismissing an information charging the defendant with carrying a concealed firearm.

Luis Nunez, defendant-appellee, was informed against for carrying a concealed firearm, to-wit: a pistol, in violation of Section 790.01(2), Florida Statutes (1977).

Nunez moved to dismiss the information for the reason that a “pistol” is not a “firearm”. In support thereof he argued that Section 790.001(6), Florida Statutes (1977) defines the term “firearm” as:

“(6) ‘Firearm’ means any weapon (including a starter gun) which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term ‘firearm’ shall not include an antique firearm.”

and Section 790.001(5) of the same statute defines “explosive” as:

“(5) ‘Explosive’ means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerin, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators; but not including:
“(a) Shotgun shells, cartridges or ammunition for firearms; . . . ”

Since a pistol expels a projectile by means of an explosive and those explosives (such as cartridges or ammunition) which are utilized by a pistol are excluded by the statute from the category of explosives, Nunez concludes a pistol cannot be a firearm. The trial judge dismissed the information on this ground and the State appeals the order of dismissal. We reverse.

Although we are cognizant of the principles of law that criminal statutes should be strictly construed according to the letter thereof in favor of the accused, the primary and overriding consideration in statutory interpretation is that a statute should be construed and applied so as to give effect to the evident intent of the legislature regardless of whether such construction varies from the statute’s literal meaning. See Griffis v. State, 356 So.2d 297 (Fla.1978); 9 Fla.Jur. Criminal Law § 19 (1972). In other words, criminal statutes are not to be so strictly construed as to emasculate the statute and defeat the obvious intention of the legislature. State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla.3d DCA 1977). In addition, statutes must be construed so as to avoid absurd results. Sharon v. State, 156 So.2d 677 (Fla.3d DCA 1963).

The obvious intent of the legislature clearly was to include a pistol within the definition. This intent is evidenced by the enactment of Section 790.001(5), Florida Statutes (1978 Supplement) and manifested in the following preamble to Chapter 78-200, Laws of Florida amending Chapter 790, Laws of Florida (1977):

******
“CHAPTER 78-200
“Senate Bill No. 1348
“AN ACT relating to firearms; amending s. 790.001(5), Florida Statutes; limiting application of exclusions from the definition of ‘explosive’ for purposes of chapter 790, Florida Statutes; providing an effective date.
“WHEREAS, the Legislature has declared in its introductory language to section 790.001, Florida Statutes, that ‘words and phrases, when used in this chapter, shall, for the purposes of this chapter, having the meanings respectively ascribed to them in this chapter, except where the context otherwise requires’ (emphasis added); and
“WHEREAS, the Legislature intended to, and did, prohibit the carrying of a concealed ‘firearm,’ i. e., ‘pistol,’ in enacting section 790.01(2), Florida Statutes; and

“WHEREAS, the Supreme Court of the State of Florida in the case of Griffis v. State, 356 So.2d 297 (Fla.1978), opinion filed March 2, 1978, held that:

“In construing a statute this Court is committed to the proposition that a statute should be construed and applied so as to give effect to the evident legislative intent, regardless of whether such construction varies from the statutes’ literal meaning

; and

“WHEREAS, the Third District Court of Appeal of Florida in the case of Davis v. State, 215 So.2d 626 (Fla.3d D.C.A. 1968) and the Fourth District Court of Appeal of Florida in the ease of Rogers v. State, 336 So.2d 1233 (Fla.4th D.C.A.1976) held that a pistol is a firearm; and

“WHEREAS, the Supreme Court of the State of Florida in the case of Tatzel v. State, 356 So.2d 787 (Fla.1978) held:

“It is a basic rule of statutory construction that words of common usage, when used in an enactment, should be construed in their plain and ordinary sense.

and the Court then construed words in an enactment as defined in Webster’s New World Dictionary (2d ed. 1976) and Black’s Law Dictionary (Rev. 4th ed. 1978); and

“WHEREAS, Black’s Law Dictionary (Rev. 4th ed. 1968) defines ‘pistol’ as:

“A short firearm, intended to be aimed and fired from one hand .

; and

“WHEREAS, ‘pistol’ is defined as:
“A short firearm intended to be aimed and fired with hand in Webster’s Third International Dictionary (1966); and
“WHEREAS, a Dade County Circuit Judge in the case of State v. Nunez, Case No. 78-2876, held that, ‘. . .a pistol .cannot be a firearm as defined by Florida law,’ and dismissed an information charging the defendant with carrying a concealed firearm in violation of section 790.-01(2), Florida Statutes; and
“WHEREAS, the Dade County Circuit Judge’s ruling in State v. Nunez defeated the intent of the Legislature, when it enacted section 790.01(2), Florida Statutes, and disregarded the Supreme Court and District Court of Appeal rulings cited above; and
“WHEREAS, the Legislature is desirous of explicitly clarifying its intent without changing the context or substance of chapter 790, Florida Statutes, specifically section 790.011(6) which defines ‘firearm,’ NOW, THEREFORE, ...”
Hi ‡ sfc ‡ Hi sf:

Furthermore, to hold that the definition of a “firearm” in Section 790.001(6), Florida Statutes (1977) was dependent upon the word “explosive” as defined in Section 790.-001(5), Florida Statutes (1977) would lead to the absurd result that only a cannon, muffler, machine gun or nuclear weapon could legally be considered a firearm.

For the reasons stated, the dismissal order is reversed and the cause remanded to the trial court for further proceedings consistent herewith.

Reversed and remanded.

      . “790.01 Carrying concealed weapons.-—
      ***** *
      “(2) Whoever shall carry a concealed firearm on or about his person shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

      . See 9 Fla.Jur. Criminal Law §§ 20, 21 (1972).

      . “(5) ‘Explosive means any chemical compound or mixture that has the property of yielding readily to combustion or oxidation upon application of heat, flame, or shock, including but not limited to dynamite, nitroglycerine, trinitrotoluene, or ammonium nitrate when combined with other ingredients to form an explosive mixture, blasting caps, and detonators; but not including;
      “(a) Shotgun shells, cartridges or ammunication for firearms;
      “(b) Fireworks as defined in s. 791.01;
      “(c) Smokeless propellant powder on small arms ammunition primers, if possessed, purchased, sold, transported, or used in compliance with s. 552.241;
      “(d) Black powder in quantities not to exceed that authorized by chapter 552, or by any rules or regulations promulgated thereunder by the Department of Insurance, when used for, or intended to be used for, the manufacture of target and sporting ammunition or for use in muzzle-loading flint or percussion weapons.

        “The exclusions contained in paragraphs (a)(d) shall not apply to the term ‘explosive’ as used in the definition of ‘firearm ’ in subsection (6) .. . ” [Emphasis Supplied]


author: MOORE, Judge.

text:
    C. D. NEWBERN, Appellant, v. PAN AMERICAN BANK OF ORLANDO, N. A., a national banking association, formerly known as Citizens National Bank of Orlando, Appellee.
    No. 77-759.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.
    Larry Klein, West Palm Beach, and Buckley & Ramsey, Tampa, for appellant.
    Charles R. Fawsett of Fawsett & MacK-innon, Orlando, for appellee.
   MOORE, Judge.

This is an appeal from a summary final judgment finding appellant liable on a promissory note. We find that a genuine issue of material fact existed precluding the granting of summary judgment and reverse.

The pertinent facts are that the appellee was the holder of five promissory notes totalling $450,000. In accepting appellant’s note for $150,000 appellee released two of the original makers who had each executed notes in the amount of $75,000. The collateral which secured the original $450,000 was sold at private sale leaving a deficiency of $64,916.10 on appellant’s note. Appellee bank then sued appellant on his obligation. In his answer appellant raised three affirmative defenses: failure of consideration, lack of consideration, and that he was induced to execute the note by the appellee’s agreement to fully collateralize the note by assigning shares of stock then held by ap-pellee to the note, which assignment appel-lee failed to execute.

Relying upon Section 673.408, Florida Statutes (1975), the trial court found, as a matter of law, that appellant executed and delivered the promissory note as security for an antecedent obligation and with or without consideration the obligation was enforceable.

The operative words in this statute as applied to the facts herein are, “. given in payment of or as security for an antecedent obligation . . . ”. Was appellant’s note executed and delivered in payment of or as security for an antecedent obligation? We think the pleadings and the record adequately raise a genuine issue of material fact which must be resolved before this question can be answered. The answer, depending upon its nature, may then be determinative of the other issues raised by appellant.

In this confusing and somewhat complex financial transaction the purpose of appellant’s undertaking of the $150,000 obligation is not entirely clear. In his affidavit he states that he was contacted by someone “relative to participating in a stock transaction pertaining to stock of the First National Bank of Attalla.” He was informed that said stock was held by appellee as collateral on a previous loan made to several individuals whom he did not know. Nevertheless, he states that appellee assured him his note would be fully collateralized by said stock. In his deposition appellant states that he was never advised that he would be a “substitute for somebody else” and that his purpose in signing the note was “to receive some of this stock.” Whether or not it was the intention of the parties that appellant’s note was “given in payment of or as security for an antecedent obligation” is a disputed question of material fact precluding summary judgment.

The entry of summary final judgment must be reversed.

REVERSED and REMANDED.

DAUKSCH, J. and COWART, JOE, Associate Judge, concur.

      . § 673.408, Fla.Stat. (1975):
      “Want or failure of consideration is a defense as against any person not having the rights of a holder in due course (S. 673.305), except that no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind. Nothing in this section shall be taken to displace any statute outside this code under which a promise is enforceable notwithstanding lack of failure of consideration. Partial failure or consideration is a defense pro tanto whether or not the failure is in an ascertained or liquidated amount.”


author: PER CURIAM.

text:
    In re GUARDIANSHIP OF Mary Harriet COOLIDGE.
    No. 77-1816.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1979.

      Henry A. Fricke of Spear, Deuschle & Curran, Fort Lauderdale, for appellant.
    Richard L. Oftedal of Jackson, Oftedal & Goodman, West Palm Beach, for appellee.
   PER CURIAM.

This is an Interlocutory Appeal from an Order of the Circuit Court of Palm Beach which denied objections to an accounting filed by the guardian of the property of Mary Harriet Coolidge. The Order refers to testimony given before the Court and a review of numerous exhibits considered by the Court. Neither the testimony nor any of the exhibits have been included in the Record on Appeal, hence we are unable to determine whether any error was committed by the lower court. It is, of course, the obligation of the appellant to provide us with a record sufficient to demonstrate the errors complained of. Failure to do so mandates affirmance. See Conner v. Coggins„ 349 So.2d 780 (Fla.lst DCA 1977); Dade County Board of Public Instruction v. Foster, 307 So.2d 502 (Fla.3d DCA 1975); and Latin American Benefit Center, Inc. v. Johstoneaux, 257 So.2d 86 (Fla.3d DCA 1972).

The Order appealed from is therefore affirmed.

DAUKSCH and LETTS, JJ., and STET-TIN, HERBERT, Associate Judge, concur.

      . This appeal was lodged prior to the date of the new rules effective March 1, 1978.


text:
    Keith Lavon ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-905.
    District Court of Appeal of Florida, Second District.
    March 7, 1979.
    Jack 0. Johnson, Public Defender and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The appellant, Keith L. Anderson, raised several issues by this appeal, one of which merits discussion. Mr. Anderson contends that the trial court committed error by adjudicating him guilty and sentencing him on first degree premeditated murder, first degree felony murder and robbery. The offenses were committed against one man on the same evening when Mr. Anderson struck the victim in the head with a hammer and immediately took his wallet. It is not necessary to discuss the merits of Mr. Anderson’s contention, however, because the record indicates that the judge, in his oral pronouncement of sentence, adjudicated Anderson guilty only of first degree premeditated murder and robbery. Possibly through a scrivener’s error, the judgment and sentence form did not conform to the judge’s pronouncement, but rather adjudicated and sentenced Mr. Anderson on all three charges. This clerical error should be corrected. We also note that the form fails to impose the 25 year mandatory minimum sentence provision orally imposed by the judge on the murder conviction.

The cause is therefore remanded to the trial court with orders that the judgment and sentence form be corrected to adjudicate and sentence Mr. Anderson only on Counts I and III, and to provide that he -serve a minimum sentence of 25 years on Count I; otherwise affirmed.

GRIMES, C. J., and BOARDMAN and RYDER, JJ., concur.


author: SCHEB, Judge.

text:
    Asa M. ERNEST and Anita B. Ernest, Appellants, v. James M. CARTER, Vickie B. Carter, and General Electric Credit Corporation, Appellees.
    No. 78-932.
    District Court of Appeal of Florida, Second District.
    March 7, 1979.

      Edson L. Garrabrants, Jr., of the Burton Professional Ass’n, Clearwater, for appellants.
    Wayne J. Boyer, Clearwater, for appel-lees.
   SCHEB, Judge.

Plaintiffs brought suit to enforce their rights and to foreclose those of defendants under an agreement for deed. At the close of the plaintiffs’ case the trial court entered an order of dismissal, but required the defendants to pay all past due installments within forty-eight hours. The trial court also denied plaintiffs’ request for attorneys’ fees and ordered each side to bear their own costs. On this appeal by plaintiffs we hold they presented a prima facie case and that dismissal of their amended complaint was therefore error. We reverse.

Plaintiffs and defendants entered into an agreement for deed whereby the defendants agreed to purchase certain real property on an installment basis with monthly payments of principal, interest, taxes and insurance. The agreement provided for an acceleration of the debt at the option of the plaintiffs in the event of a default in payments, and made the defendants liable for all costs of collection, including reasonable attorneys’ fees. Such an agreement is in essence a mortgage, and the foreclosure thereof is governed by the rules applicable to mortgage foreclosures. Adkinson v. Nyberg, 344 So.2d 614 (Fla. 2d DCA 1977).

To establish their entitlement to foreclose it was incumbent upon the plaintiffs to prove their agreement, a default by the defendants, that plaintiffs properly accelerated the debt to maturity, and the amount due. The evidence must be considered in the light most favorable to the nonmoving party, Glass v. Long, 341 So.2d 1066 (Fla. 2d DCA 1977), and if a prima facie case has been established, dismissal is improper. Tillman v. Baskin, 260 So.2d 509 (Fla.1972). We have reviewed the evidence and, considered in the light most favorable to the plaintiffs, it was sufficient to establish a prima facie case as to all of the aforementioned elements. It was therefore error to dismiss plaintiffs’ amended complaint.

We deem it unnecessary at this time to address the issue of attorneys’ fees incurred by plaintiffs at the trial level. That issue is premature until the trial court has heard all the evidence, including testimony as to the reasonable amount of attorneys’ fees, and has made its decision on the merits of the controversy.

Reversed and remanded for further proceedings consistent with this opinion.

BOARDMAN, A. C. J., and DANAHY, J., concur.


text:
    Sammie GADSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1539.
    District Court of Appeal of Florida, Second District.
    March 7, 1979.

      Jack 0. Johnson, Public Defender, Bar-tow, and William Murphy, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the revocation of appellant’s probation, but remand for correction of the order of revocation.

Appellant was charged with eight different violations of the conditions of his probation. His probation supervisor presented testimony concerning all of the charged violations, but during defense counsel’s cross-examination of her, the trial court restricted the testimony to the charge of violating condition (7) in that he failed to report to his supervisor and make a payment toward the costs of his supervision as instructed. The court’s instruction was followed, and appellant’s testimony and the remainder of the questioning of the supervisor concerned only that charge. At the conclusion of the testimony, the trial court made an oral finding that appellant had committed that charged violation. The written order of revocation, however, recites a finding that appellant violated conditions (1), (2), (6), and (7).

Since the evidence supports the finding that appellant violated condition (7) and since this was a substantial violation sufficient to support the revocation order, the order of revocation and judgment and sentence are affirmed. See Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). However, the trial court could not properly find that appellant had committed the other violations recited in the probation order after restricting the testimony at the revocation hearing to the charge of violating condition (7).

Accordingly, the judgment and sentence are affirmed, but the cause is remanded with instructions to strike from the order of revocation the finding that appellant violated conditions (1), (2), and (6).

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


author: RYDER, Judge.

text:
    Reba Jean BUKSZAR, Appellant, v. Walter BUKSZAR, Appellee.
    No. 78-1793.
    District Court of Appeal of Florida, Second District.
    March 7, 1979.

      Judith Petersen, Bay Area Legal Services, Inc., Dade City, for appellant.
    No appearance for appellee.
   RYDER, Judge.

Mrs. Reba Jean Bukszar seeks reversal of an order adjudging her guilty of indirect criminal contempt. After careful review, we find that her appeal has merit.

Mrs. Bukszar’s husband filed a petition for dissolution of marriage on April 19, 1978, alleging that there were two children born of the marriage who were in the custody of Mrs. Bukszar. The petition asked that he be awarded the custody of the children. After a final hearing, the court entered a judgment dissolving the marriage, granting temporary custody to Mr. Bukszar with visitation rights awarded to Mrs. Bukszar and reserving jurisdiction to determine permanent custody, visitation and support of the children. On August 30, 1978, Mr. Bukszar filed an unsworn motion for contempt, petition for modification of final judgment and notice of hearing. Therein he alleged that Mrs. Bukszar failed to return the minor daughter following a visitation period on August 4, 1978, but that he had obtained the return of said daughter and, further, that Mrs. Bukszar had removed herself from the jurisdiction of the court. He asked for permanent custody of the minor children and for entry of an order finding his former wife in contempt of court. The court held a hearing on the contempt motion and found appellant in willful indirect criminal contempt. She was sentenced to serve five days in the Pasco County Detention Center.

Before a court may find a person to be in indirect criminal contempt, it must strictly follow the procedures set forth in Florida Rule of Criminal Procedure 3.840. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977); Vines v. Vines, 357 So.2d 243 (Fla.2d DCA 1978). Here, the facts that we have stated demonstrate that the trial court did not comply with those procedures. In particular, we note that the court failed to issue an order to show cause. Accordingly, we vacate the order of contempt.

GRIMES, C. J., and BOARDMAN, J., concur.

      . Rule 3.840. Indirect Criminal Contempt
      (a) Indirect (Constructive) Criminal Contempt. A criminal contempt except as provided in the preceding subsection concerning direct contempts, shall be prosecuted in the following manner:
      (1) Order to Show Cause. The judge, of his own motion or upon affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring him to appear before the court to show cause why he should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.
      (2) Motions; Answer. The defendant, personally or by counsel, may move to dismiss the order to show cause, move for a statement of particulars or answer such order by way of explanation or defense. All motions and the answer shall be in writing unless specified otherwise by the judge. A defendant’s omission to file motions or answer shall not be deemed as an admission of guilt of the contempt charged.
      (3) Order of Arrest; Bail. The judge may issue an order of arrest of the defendant if the judge has reason to believe the defendant will not appear in response to the order to show cause. The defendant shall be admitted to bail in the manner provided by law in criminal cases.
      (4) Arraignment; Hearing. The defendant may be arraigned at the time of the hearing, or prior thereto upon his request. A hearing to determine the guilt or innocence of the defendant shall follow a plea of not guilty. The judge may conduct a hearing without assistance of counsel or may be assisted by the prosecuting attorney or by an attorney appointed for that purpose. The defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and may testify in his own defense.
      All issues of law and fact shall be heard and determined by the judge.
      (5) Disqualification of Judge. If the contempt charged involves disrespect to or criticism of a judge he shall disqualify himself from presiding at the hearing. Another judge shall be designated by the Chief Justice of the Supreme Court.
      (6) Verdict; Judgment. At the conclusion of the hearing the judge shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty.
      (7) The Sentence; Indirect Contempt. Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against him and inquire as to whether he has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.


author: BOOTH, Judge.

text:
    Wilhelmina HENRY, Appellant, v. HALIFAX HOSPITAL DISTRICT, etc., Appellee.
    No. KK-379.
    District Court of Appeal of Florida, First District.
    March 9, 1979.
    Rehearing Denied April 2, 1979.

      Jonathan Hewett, Homestead, for appellant.
    Harold C. Hubka of Black, Crotty & Sims, Daytona Beach, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a final judgment of the Circuit Court entered in favor of defendant Halifax Hospital in a suit for declaratory relief. The judgment sought to be reviewed holds that appellant Henry may not recover from the hospital the amounts paid by Henry’s insurance company to Halifax which exceed the charges resulting from Henry’s latest hospitalization.

The facts are that Henry was admitted to the hospital in June of 1976, for treatment of injuries sustained in an automobile accident. At the time of Mrs. Henry’s admission, her husband signed an Assignment of Benefits form provided by the hospital, which form states in part that Henry does:

“HEREBY AUTHORIZE PAYMENT directly to the below named hospital of the hospital insurance benefits otherwise payable to me but not to exceed the balance due of the hospital’s regular charges for this period of hospitalization. I understand I am financially responsible for charges not covered by this authorization.” (e. s.)

Pursuant to the foregoing authorization, two insurance companies paid the charges due, resulting in an overpayment as to the latest hospitalization. The hospital thereupon undertook to apply the excess insurance proceeds to preexisting unpaid charges owed to the hospital by appellant and members of her family going back over a ten-year period.

In her suit for declaratory relief, Henry contended: (1) That the prior charges were barred by the statute of limitations and (2) That the hospital could not apply the funds to pre-existing debts in the absence of an express authorization by the insured. The trial court rejected both arguments and ruled in favor of the hospital.

The law is clear that the expiration of the period of time prescribed by a statute of limitations does not extinguish the debt itself but only precludes the bringing of legal action to collect that debt. Hoagland v. Railway Express Agency, 75 So.2d 822 (Fla.1954); 21 Fla.Jur., Limitations of Action, section 4 at 168; Danielson v. Line, 135 Fla. 585, 185 So. 332 (1938).

We find that as to the second point, the authorization signed on behalf of appellant Henry constituted a sufficient designation to the hospital with respect to the application of insurance funds paid on behalf of Henry. Where a debtor designates a certain debt or debts to which he wishes his forwarded funds to apply, the creditor must apply the funds as directed or return the money. The creditor is not privileged to apply the fund to other claimed debts contrary to the debtor’s instruction. All Cargo Transport Inc. v. Florida East Coast Railway Co., 355 So.2d 178, 179 (Fla.3d DCA 1978), and cases cited therein.

In this case the hospital obtained Henry’s signature on its form assigning medical insurance benefits to the hospital for services provided beginning June 11, 1976. The insurance proceeds paid on behalf of Henry are to be applied to the amounts owing for the hospital services specified, and excess monies must be refunded to the insured, Henry.

Accordingly, the judgment below is REVERSED and the cause REMANDED for further proceedings consistent herewith.

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


text:
    Angelo Antony OVERMAN a/k/a Sandy Thompson, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1517.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender and Mark Wilensky (Legal Intern), for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Defendant, Angelo Antony Overman, appeals the revocation of his probation and sentence of five years imprisonment.

Overman was charged with escape and initially pled not guilty. After entering into negotiations with the prosecution, he agreed to change his plea to guilty in exchange for a sentence of four years, to be suspended with two years probation. The trial judge accepted the guilty plea and sentenced Overman as agreed above. Subsequently, Overman was found to be in violation of his probation. The probation was revoked and the trial court sentenced him to five years in the state penitentiary.

Overman argues that the trial court erred in sentencing him to five years imprisonment on violation of probation where there had been an agreed maximum sentence of four years as part of plea negotiations accepted and approved by and between him, the prosecution and the trial judge. We find merit in this point.

Although the State contends that the plea negotiations were not predicated upon a cap of four years imprisonment as the maximum which the trial court could impose at the time of entry the original sentence, we nevertheless find that the record reflects to the contrary. The trial judge in questioning Overman as to the voluntariness of his guilty plea stated to him that should he violate his probation, he would be sent to prison for four years. Overman’s guilty plea having resulted from plea negotiations predicated upon a maximum sentence of four years to which all parties agreed, the trial court erred in imposing the five year sentence upon revocation of his probation. See Segarra v. State, 360 So.2d 79 (Fla. 3d DCA 1978); Kord v. State, 361 So.2d 800 (Fla. 3d DCA 1978). Accordingly, we reduce the sentence to four years.

We also considered the second point on appeal and find it is without merit.

Affirmed as modified.


text:
    Mitchell LANDOW and Beulah Landow, his wife, Appellants, v. David S. LIGHT, and Jaffe, Light and Clayman, P.A., Appellees.
    No. 77-2253.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Edna L. Caruso, Montgomery, Lytal, Re-iter, Denney & Searcy, West Palm Beach, Magill, Sevier & Reid, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. Aetna Life Insurance Co. v. Fruchter, 283 So.2d 36, 37 (Fla.1973); Grimm v. Prudence Mutual Casualty Co., 243 So.2d 140, 143 (Fla.1971); Dohr v. Smith, 104 So.2d 29, 32 (Fla.1958); Bourgeois v. Dade County, 99 So.2d 575, 577 (Fla.1957); Gallagher v. Federal Insurance Co., 346 So.2d 95, 96-97 (Fla. 3d DCA 1977); Hickman v. Employers’ Fire Insurance Co., 311 So.2d 778 (Fla. 4th DCA 1975); Dixie-Bell Oil Co. v. Gold, 275 So.2d 19, 21 (Fla. 3d DCA 1973); Ditlow v. Kaplan, 181 So.2d 226 (Fla. 3d DCA 1965); Blackwell v. Southern Florida Sanitarium and Hospital Corp., 174 So.2d 45, 47 (Fla. 3d DCA 1965).


text:
    POINT EAST ONE CONDOMINIUM CORPORATION, INC., a Florida NonProfit Corporation, et al., Appellants, v. POINT EAST DEVELOPERS, INC., a Florida Corporation, et al., Appellees.
    No. 78-177.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Becker, Poliakoff & Sachs and Jeffrey E. Streitfeld, Fort Lauderdale, for appellants.
    Steel, Hector & Davis and Darrey A. Davis, Miami, for appellees.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The order dismissing the complaint herein is reversed and the cause remanded for further proceedings based on the authority of Burleigh House Condominium, Inc. v. Buchwald, 368 So.2d 1316 (Fla.3d DCA 1979).


text:
    Joe Nathan BETSY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-191.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Bennett H. Brummer, Public Defender and Denis Dean, Sr., Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Joe Nathan Betsy, defendant, appeals his conviction for involuntary sexual battery.

Betsy first urges as reversible error the introduction of mug shots of him on the back of which was stamped, “PUBLIC SAFETY DEPARTMENT, DADE COUNTY, FLORIDA”, with blanks to be filled in supplying such description as the name of the person photographed, his date of birth, identification and case numbers, etc. He argues that these mug shots served only to prejudice him by implying to the jury that he had been guilty of prior unrelated crimes.

Whether the introduction of mug shots constitutes reversible error depends upon the entire record and the surrounding circumstance under which the mug shots were introduced. State v. Rucker, 330 So.2d 470 (Fla.1976). The record in the instant case reflects that defense counsel objected to the introduction of the photographs into evidence on the ground that these photographs were “mug shots”. The trial judge sustained the objection, ordered that the photographs be “cropped” and then allowed the prosecution to reintroduce the photographs. Defense counsel made no objection to the reintroduction. The record further shows that no reference to these photographs as mug shots was made by the prosecution and Betsy took the stand and testified he had been convicted of previous crimes. Hence, we conclude that there was no reversible error. See Mancebo v. State, 350 So.2d 1098, 1100 (Fla. 3d DCA 1977); Cf. Houston v. State, 360 So.2d 468, 469 (Fla. 3d DCA 1978).

Betsy for his second point on appeal contends that the trial judge erred in overruling defense counsel’s objection to an allegedly improper comment by the prosecutor in closing argument. We cannot agree.

Considerable latitude is allowed in arguments on the merits of the case and prosecutors as long as they remain within the limits of the record are not to be condemned merely because they appeal to the jury to perform their public duty by returning a guilty verdict. See Thomas v. State, 326 So.2d 413, 415 (Fla.1976) and Cf. Oliva v. State, 346 So.2d 1066, 1068-69 (Fla. 3d DCA 1977).

We also considered Betsy’s last point on appeal and determine that it lacks merit.

Affirmed.


text:
    Norman M. KENYON, M.D., Appellant, v. George A. SMALL, M.D., Appellee.
    No. 78-568.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    T. Patrick Ford, Jr., Miami, for appellant.
    No appearance for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Atlantic Plaza Partnership v. Daytona Sands, Inc., 357 So.2d 761 (Fla. 1st DCA 1978).


text:
    Jimmy HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-710.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.

      Bennett Brummer, Public Defender and Nicholas J. Capuano, Special Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Defendant, Jimmy Hudson, appeals his conviction for sexual battery committed by using physical force not likely to cause serious personal injury. [Section 794.011(5), Florida Statutes (1977).]

Hudson primarily argues that the jury’s guilty verdict is not supported by competent substantial evidence.

Our review of the record reveals that there was substantial competent evidence including the testimony of the victim and the corroborating testimony of the other witnesses from which the jury could have found that Hudson committed sexual battery upon the victim. See Berezovsky v. State, 335 So.2d 592 (Fla.3d DCA 1976) and cases cited therein.

Hudson secondly argues that the trial judge erred in denying defense counsel’s motion that the victim be required to submit to a psychological examination before being permitted to testify at the trial because of the victim’s alleged history of psychiatric disorder.

The trial judge conducted a personal examination of the victim to determine the victim’s competency to testify. After the inquiry, the judge was satisfied as to the victim’s competency. Thus, we find no abuse of discretion on the part of the trial judge in denying the motion for psychological examination. See Florida Power and Light Co. v. Robinson, 68 So.2d 406, 413 (Fla.1953); Wilk v. State, 217 So.2d 610 (Fla.3d DCA 1969); Dinkins v. State, 244 So.2d 148 (Fla. 4th DCA 1971).

Hudson additionally contends that the trial judge erred in failing to instruct the jury on the lesser included offenses of aggravated assault and attempt to commit aggravated assault.

Defense counsel, although having been given the opportunity, failed to object to the instructions which the judge said he would render to the jury. In fact, counsel stated he had no objections. Thus, Hudson is precluded from raising this issue as error for the first time on appeal. See Fla.R. Crim.P. 3.390(d); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Alford v. State, 280 So.2d 479 (Fla.3d DCA 1973).

We have also considered Hudson’s remaining points on appeal and find no merit therein.

Accordingly, the judgment of conviction is affirmed.

Affirmed.

        . “(5) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.”

      . The trial judge did instruct on the lesser included offenses of attempted sexual battery, battery and assault.


text:
    Albert BAITCHER, Appellant, v. NATIONAL INDUSTRIAL BANK OF MIAMI, Appellee.
    No. 78-761.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Whitman, Wolfe & Grass and Melvin Wolfe, Miami, for appellant.
    Frank, Strelkow & Gay and Peter Strel-kow, North Bay Village, for appellee.
    Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   BARKDULL, Judge.

Appellant executed an agreement of guaranty in connection with a loan from National Industrial Bank of Miami to Great Southern Wholesale Grocery Corporation, for the purpose of purchasing two forklifts.

The Bank assured the guarantor that it would cause the necessary Uniform Commercial Code documents to be filed against the two fork lifts, in order to perfect its security interest therein. The Bank failed to promptly or properly do this and therefore lost a security interest in the chattels. The principal obligor went into bankruptcy and the Bank failed in a reclamation procedure for return of the fork lifts. The Bank then brought suit on the guaranty. The guarantor defended and urged that it was released because of the failure of the bank to perfect its security interest or to properly preserve the collateral. The trial court entered judgment for the unpaid amount of the loans. This appeal ensued. We reverse.

It was incumbent upon the Bank to take all normal precautions to perfect all security interest in the fork lifts. Failure to properly preserve the collateral justifies a release of the guarantor to the extent that he was damaged by the loss of the collateral. Miami National Bank v. Fink, 174 So.2d 38 (Fla. 3d DCA 1965); Dorsy v. Maryland National Bank, 334 So.2d 273 (Fla. 3d DCA 1976); Warner v. Caldwell, 354 So.2d 91 (Fla. 3d DCA 1977).

Therefore, the final judgment here under review be and the same is hereby reversed, with directions to the trial court to consider the amount of the obligation that would have been discharged if the security interest in the fork lifts had been properly preserved and these chattels had been disposed of by either satisfaction or partial satisfaction of the original obligation at the time of default.

Reversed and remanded, with directions.

      . In its Findings of Fact and Conclusions of Law, the Referee in Bankruptcy in his Order of April 2, 1971 found, in part, as follows:
      * * * * * *
      “3. That at a hearing held before this Court on December 2, 1970:
      “A. The Bank introduced into evidence the very same instruments reflected by the exhibits attached to the Petition of Reclamation, but, the blank spaces appearing on the exhibits were completely filled in by a second typewriter.
      “B. Jack Stein, Executive Vice-President of the Bank testified that he was familiar with the transactions in question * * * he was a loan officer responsible for the transactions in question, and that they were made under his control and supervision * *.
      “C. Stein further testified that all instruments were filled in at the same time that they were executed, but, due to employee incompetence, more than one typewriter was used * * * all instruments were completed prior to filing the Petition of Reclamation * * * and that blanks appeared on the exhibits because of selective elimination by a faulty photocopy machine * * *.
      “4. That at a hearing held before this Court on February 9, 1971, the Senior Vice-President of the Bank, Layton Reeve, testified that:
      “A. Reeve was familiar with the transaction in question * * *.
      “B. The instruments were signed in March of 1969 * * *.
      “C. The instruments were not filled in until October, 1970 * * *.

        “D. Stein’s testimony on December 2, 1970 was erroneous * * *.
      “5. That in an attempt to prove its claim, the Bank represented to this Court that the exhibits were true copies, when they were not, and willfully attempted to deceive this Court, and did not come before this Court with ‘clean hands’.
      * * * * *
      “ORDERED AND ADJUDGED that the claim of the National Industrial Bank of Miami is hereby subordinated to the claim of all the secured creditors and the claim shall be allowed as an unsecured claim.”
      * SfC # J}5 S(C S)S


text:
    HECK’S INC., Appellant, v. Karen GIOBBE, Appellee.
    No. 78-909.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gary M. Farmer, and Andrew T. Lavin, Hollywood, for appellant.
    Weissenborn, Burr & Hyman, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Reversed on the authority of Volkswagenwerk Atkiengelselischaft v. McCurdy, 340 So.2d 544 (Fla. 1st DCA 1976); Hartman Agency, Inc. v. Indiana Farmers Mutual Insurance Company, 353 So.2d 665 (Fla. 2d DCA 1978).


text:
    Faye R. PARK, Appellant, v. Charles I. PARK, Appellee.
    No. 78-991.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Magill, Sevier & Reid and Hector Huba-neh, for appellant.
    Feldman, Eden & Allen, Key West, Rosenberg, Rosenberg, Reisman & Glass and James E. Glass, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Pfohl v. Pfohl, 345 So.2d 371, 375 (Fla. 3d DCA 1977); Rampton v. Rampton, 197 So.2d 846 (Fla. 1st DCA 1967).


text:
    MODERN WOOD INDUSTRIES, INC., Appellant, v. DIXIE PLYWOOD COMPANY OF MIAMI, INC., and Central Bank and Trust Company, Garnishment Intervenor, Appellees.
    No. 78-1082.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Robert Bakerman and Louis A. Supraski, Miami, for appellant.
    Pallot, Poppell, Goodman & Slotnick and Neil A. Shanzer, Miami, Joseph R. DeLucea, Hialeah, for appellees.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Modern Wood Industries, Inc., defendant below, appeals from an allowance of attorneys’ fee to Central Bank and Trust Company that was included in a judgment entered in a garnishment proceeding.

Dixie Plywood Company of Miami, Inc., herein referred to as Dixie, obtained a judgment against the defendant Modern Wood and thereafter obtained a writ of garnishment against Prestige Building Corp. Prior to judgment in the garnishment proceeding Central Bank and Trust Company moved to intervene therein, alleging it held a perfected security interest against Modern Wood constituting a claim against the garnished accounts receivable of Modern Wood superi- or to the claim thereon of the plaintiff-gar-nishor Dixie. Accompanying the motion was an affidavit of an officer of the bank in which it was stated Modern Wood was in default to the bank on three loans aggregating $71,000.00.

On September 15, 1977, the garnishee answered, averring it was indebted to Modern Wood in the amount of $8,000.00. On the same date, final judgment in favor of the garnishor was entered, without prior notice to the bank. On October 4, 1977, the bank, after learning of such judgment, filed a motion seeking to restrain enforcement of the garnishment judgment and to set it aside. The court entered an order permitting the bank to intervene, and setting aside the judgment. The order directed the garnishee to deposit the said sum of $8,000.00 into an agreed upon interest bearing account, to be so held subject to further order of the court, and made provision for a later trial to determine the bank’s claim of priority over Dixie in the garnishment fund.

Thereafter, instead of contesting the priority question, the plaintiff Dixie and the bank stipulated to divide the garnishment fund, $3,000.00 to Dixie and $5,000.00 to the bank. Based thereon, the court entered judgment in the garnishment proceeding, directing the depository of the fund to disburse $3,000.00 thereof plus the accrued interest to the plaintiff Dixie, and to disburse the balance of $5,000.00 thereof to the in-tervenor-bank.

In that judgment the court awarded $2,000.00 to the bank for the services of its attorneys, and directed that such attorneys’ fee allowance be paid out of the bank’s share of the garnishment proceeds, and the order provided that because of such $2,000.00 fee being deducted from the fund the judgment debtor Modern Wood Industries, Inc. would be credited with having paid only $6,000.00, plus the interest which had accrued on the $8,000.00 fund while on deposit.

Appellant contends the allowance of the fee was error and that such error improperly resulted in appellant Modern Wood losing credit for that amount on its indebtedness to the bank. The trial court allowed the fee as being authorized by Section 679.504, Florida Statutes (1975). That statute was not applicable. The collection which the bank obtained was not acquired by or in a proceeding under that statute. Moreover, there was no testimony submitted to the court as evidentiary basis for a fee allowance. Baruch v. Giblen, 122 Fla. 59, 164 So. 831 (1936); Lyle v. Lyle, 167 So.2d 256 (Fla.2d DCA 1964); Thoni v. Thoni, 179 So.2d 420 (Fla.3d DCA 1965).

We hold it was error to award such fee and thereby to reduce the amount for which Modern Wood should have received credit, which was $3,000.00 plus the accrued interest as credit on its indebtedness to Dixie and $5,000.00 credit on its indebtedness to the bank.

Accordingly, the provisions of the order appealed from which made such fee allowance and which so reduced the amount of credit for which Modern Wood was entitled by virtue of the payments involved, are reversed.


author: KEHOE, Judge.

text:
    Minnie SALZBERG, Appellant, v. Pauline EISENBERG et al., Appellees.
    No. 78-1083.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.

      Gerald K. Burton, Hollywood, for appellant.
    Pyszka, Kessler & Adams and William M. Douberley, Miami, for appellees.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final summary judgment entered in favor of appellees. We reverse.

Our review of the record shows that, at the time the trial court entered its final summary judgment in favor of appellees, both objections to interrogatories and a motion to produce were pending. Prior to a determination by the trial court of these objections, it was not possible to ascertain whether any genuine issues of any material facts remained in the cause. Absent such a determination, it was untimely for the trial court to enter a final summary judgment in favor of appellees. Fla.R.Civ.P. 1.510. Accordingly, the judgment appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    WARTH PAINT COMPANY, INC., a Florida Corporation, Appellant, v. William Godfrey JACKSON, Appellee.
    No. 78-1233.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.

      Alfred D. Bieley, Miami, for appellant.
    Lane, Mitchell & Harris and Byron B. Matthews, Miami, for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Warth Paint Company, Inc., was the plaintiff in the trial court. This is an appeal from a summary final judgment for the defendant. The basic claim asserted by the appellant is that its executive officer was injured in an automobile accident for which the appellee Jackson was responsible. As a consequence of this injury to its officer, the corporation claimed damages for loss of business due to the officer’s absence from his job. The trial court correctly determined that this action is not sustainable in Florida. See International Funding Corporation v. Krasner, 360 So.2d 1156 (Fla.3d DCA 1978).

The trial court apparently overlooked a claim contained in the complaint for damages to the automobile owned by the corporation which was involved in the accident. Plaintiff claimed $1,404 as the expense of renting a replacement car and $9,000 as depreciation for the damages to the car. On this appeal, Jackson responds that the record shows plaintiff was paid by its own insurance company for all repairs and for rental expenses. It is urged that as a consequence of the payment, the plaintiff executed a subrogation agreement and that defendant Jackson or his insurance company has now paid for these damages. If an agreement to accept the amount paid as full compensation for the property damage exists, it does not appear in the record. Therefore, we conclude that the trial court prematurely entered a summary judgment upon the property damage claim.

We are aware that it is highly unlikely that plaintiff has received the payments admitted without executing a release and subrogation agreement. If it appears upon remand that the plaintiff has executed a release, then the trial court may dismiss this cause with prejudice under Florida Rule of Civil Procedure 1.510(b) & (g), and enter sanctions in accordance therewith.

Reversed and remanded for further proceedings in accordance with the views herein expressed.


text:
    The STATE of Florida, Appellant, v. Willie Fred THOMAS, Appellee.
    No. 78-1481.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellee.

      Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Coladonato v. State, 348 So.2d 326 (Fla.1977); Schneider v. State, 353 So.2d 870 (Fla. 4th DCA 1977); Diggs v. State, 345 So.2d 815 (Fla.2d DCA 1977); Rodriquez v. State, 189 So.2d 656, 660 (Fla.3d DCA 1966).


text:
    Bradley TILSON, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1519.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE, F., Jr., (Ret.), Associate Judges.
   PER CURIAM.

Affirmed on the authority of Hines v. State, 358 So.2d 183 (Fla.1978).


text:
    Marylou K. SHERRY, Appellant, v. UNITED TEACHERS OF DADE, a Labor Organization, Appellee, Jim Smith, Attorney General, Intervenor.
    No. 78-1796.
    District Court of Appeal of Florida, Third District.
    March 13, 1979.
    Tobias Simon and Jennifer Hurst, Miami, for appellant.
    DuFresne & DuFresne, Miami, for appel-lee.
    Jim Smith, Atty. Gen., and Gary L. Con-over, Asst. Atty. Gen., for intervenor.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This is an appeal from an order dismissing a complaint seeking to have Section 447.401, Florida Statutes (1977) declared unconstitutional.

Plaintiff-appellant, Marylou K. Sherry, is an employee of the Dade County School Board and is a member of the bargaining unit of which the defendant-appellee, United Teachers of Dade, is the exclusive bargaining agent. Sherry, who is not a member of the U.T.D., claims that the School Board breached the collective bargaining agreement with the U.T.D. by refusing to give her a particular job even though she was the best qualified applicant. Being aggrieved of this action, Sherry requested that the U.T.D. process a grievance on her behalf against the School Board. She alleged that by letter of February 13, 1978, the U.T.D. advised her that it would not process the grievance on her behalf because she is not a union member and pursuant to Section 447.401, Florida Statutes (1977), the U.T.D. was no longer required to represent non-dues paying members in grievance procedures.

Thereupon, Sherry filed the present declaratory judgment action arguing that Section 447.401, Florida Statutes (1977) is unconstitutional in that the refusal of the U.T.D. to process a grievance on her behalf, because she is not a union member, constitutes discrimination based upon non-union membership which is prohibited by Article 1, Section 6, Florida Constitution (1968).

The U.T.D. filed a motion to dismiss the complaint and in support of the motion listed six grounds including (a) lack of standing (since there is not a sufficient interest shown in the relief sought) to bring the action, and (b) preemption of jurisdiction of the Circuit Court by the Public Employees Relations Commission over labor activities covered by Chapter 447, Florida Statutes (1977). The Attorney General intervened and also filed a motion to dismiss and alleged as grounds, inter alia, lack of standing and failure to sufficiently allege the requirements for declaratory judgment under Section 86.011 et seq., Florida Statutes (1977). After a hearing, the court dismissed the complaint on the ground that jurisdiction of the matter is preempted by the Florida Public Employees Relations Commission. Sherry appeals. We affirm, but not for the reason stated in the dismissal order.

Attached to Sherry’s complaint is the letter of February 13,1978 wherein the U.T.D. allegedly refused to process the grievance on her behalf. Nevertheless, an examination of that letter reflects that the U.T.D. agreed to represent Sherry for a fee as set out in a Service Fee Schedule established for non-dues paying members. It is clear that the gravamen of Sherry’s complaint is that the U.T.D. would not process her grievance free of charge, although she is not a dues paying member and could process the grievance by herself. We, therefore, conclude that in the posture of this case the issue of the constitutionality of Section 447.401, Florida Statutes (1977) is not properly presented and Sherry lacks the requisite interest to bring the instant action under Section 86.011 et seq. Florida Statutes (1977). See e. g. Duran v. Wells, 307 So.2d 259 (Fla.2d DCA 1975).

Affirmed.

      . “447.401 Grievance procedures
      “Each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement. Such grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties. However, an arbiter or other neutral shall not have the power to add to, subtract from, modify, or alter the terms of a collective bargaining agreement. If an employee organization is certified as the bargaining agent of a unit, the grievance procedure then in existence may be the subject of collective bargaining, and any agreement which is reached shall supersede the previously existing procedure. All public employees shall have the right to a fair and equitable grievance procedure, administered without regard to membership or non-membership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organization. A career service employee shall have the option of utilizing the civil service appeal procedure or a grievance procedure established under this section, but such employee cannot use both a civil service appeal and a grievance procedure.”

      . “Art. 1, § 6 CONSTITUTION — 1968 REVISION
      “§ 6. Right to work
      “The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.”


text:
    Darrell Wayne ROBARTS, Appellant, v. STATE of Florida, Appellee. Bobby G. HARTFIELD, Appellant, v. STATE of Florida, Appellee.
    Nos. HH-199, HH-149.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Michael J. Minerva, Public Defendér, Louis G. Carres, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellees.
   PER CURIAM.

Appellants appeal from a judgment and sentence for robbery with a firearm and grand larceny. We affirm.

We note that it appears from the record that the sentence may be improper as to appellant Hartfield. Earnest v. State, 351 So.2d 957 (Fla.1977). Since the legality of the sentence has not been raised in this appeal, we affirm without prejudice to Hartfield’s right to raise the issue in a motion for post-conviction relief.

AFFIRMED.

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


author: SMITH, Judge.

text:
    Charlie Arthur BASS, Appellant, v. STATE of Florida, Appellee.
    No. II-211.
    District Court of Appeal of Florida, First District.
    March 14, 1979.

      Michael J. Minerva, Public Defender and Janice G. Scott, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Bass appeals his conviction of attempted second degree murder and armed robbery. Inasmuch as an error in the jury selection process vitiates the conviction, we pass on that point alone.

Bass urges that the special jury venire was not summoned according to Section 40.42, Florida Statutes (1977) in that black members of the community were systematically excluded in the selection of the venire, thereby violating his constitutional right to a jury selected from a body reasonably representative of the community. Article I, Section 16, Florida Constitution; United States Constitution, Amendments VI and XIV.

The trial court, anticipating a shortage of prospective jurors due to exhaustion of the regular venire, ordered the Escambia County sheriff “to summon from the body of the county a sufficient number of qualified jurors to complete the jury panel.” On the day the need for additional jurors became evident, Sergeant Morris of the sheriff’s department attended an evening prayer meeting at his church, the membership of which is entirely Caucasian, and asked for volunteers. Five women volunteered, and two of them served on Bass’s jury. Morris also requested Lois Kemp, an employee of the court clerk, to seek additional jurors. Ms. Kemp called five personal acquaintances, all Caucasians, who agreed to serve, and two of those likewise served on Bass’s jury. Appellant Bass is black.

Section 40.42 reads:
When the venire is exhausted and when the names in the jury box become exhausted during a term of court, then the court may direct the sheriff to summon from the body of the county a sufficient number of qualified jurors to complete the panel.

We need not decide whether Section 40.42 was violated by the sheriff’s partial delegation of his statutory power to Ms. Kemp, the clerk’s employee. In any event, selection of prospective jurors from a discrete group of Caucasian friends and acquaintances of Sergeant Morris and Ms. Kemp— four of whom eventually served on the jury of six — vitiated the jury trial.

The constitutional guaranty of a jury trial includes assurance that the jury be drawn from a fairly representative cross-section of the community. In Taylor v. Louisiana, 419 U.S. 522 at 530, 95 S.Ct. 692 at 697, 42 L.Ed.2d 690 (1975), the Court, in reversing Taylor’s conviction because women as a group had been systematically excluded from jury service, stated:

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. . . . This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system.

Although we recognize the good motives involved in the selection process, it is inescapable that the process precluded the possibility that black members of the community would be among the special ve-nire from which a jury was to be drawn. Although Section 40.42 cannot be administered in an emergency through the same cautious means as are employed in constituting a venire at leisure, it too must be administered in such a way as not to exclude identifiable segments of the populace systematically. The choice of a special ve-nire from an all-Caucasian church body, or from one’s Caucasian friends, is a systematic, if unintended, exclusion of blacks. See Glasser v. U. S., 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); U. S. ex rel. Sturdivant v. New Jersey, 289 F.2d 846 (3rd Cir. 1961).

REVERSED.

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


author: McCORD, Chief Judge.

text:
    John E. BIGLER, Jr., et al., the Organizers of the Lower Keys State Bank, Petitioners, v. DEPARTMENT OF BANKING & FINANCE and Gerald A. Lewis, Comptroller, and Head of said Department, Respondents.
    No. II-399.
    District Court of Appeal of Florida, First District.
    March 14, 1979.

      Larry E. Levy of Dickinson, Levy & Taylor, Tallahassee, for petitioners.
    Eugene J. Celia and S. Craig Kiser, Tallahassee, for respondents.
    J. Riley Davis of Taylor, Brion, Buker & Greene, Tallahassee, for amicus curiae.
   McCORD, Chief Judge.

Petitioners seek review of respondent Department’s denial of their application for authority to organize a corporation for the purpose of conducting a state chartered general banking business in Big Pine Key, Florida. The application was denied on the ground that it did not meet the requirements of § 659.03(2)(a), (b), (c), (d) and (f), Florida Statutes (1977). The final order declared:

“In view of the fact that two of these criteria cannot be remedied by the Applicants, i. e., ‘convenience and advantage will be promoted’, and ‘local conditions assure reasonable promise of successful operation,’ it would not be within the lawful discretion of the Department of Banking and Finance to grant the application.”

The Department handed down its final order after conducting an investigation as required by § 659.03(1), Florida Statutes. As to § 659.03(2)(a) (that public convenience and advantage will be promoted), the Department found that the proposed site does not have frontage directly on U.S. Highway No. 1 but instead lies more than 200 feet from it. Thus, its visibility is greatly diminished and the only access to the site is via an access road; that the proposed service area of the new bank is at present adequately served by existing banking facilities; and that a large portion of the residents of the proposed service area work on a nearby military base and may be more conveniently served by the two financial facilities located on that base. As to § 659.03(2)(b), the Department found that there is no significant commercial or industrial activity in the proposed service area; that the competition facing the proposed bank is much greater than that faced by the bank upon which the applicants based their first year total deposit estimate.

Petitioners urge that § 659.-03(l)(b) and (c), Florida Statutes, are unconstitutional in that those provisions are wholly lacking in legislative standards and guidelines and, therefore, constitute an improper delegation of legislative authority. Those statutory provisions are as follows:

“Upon the filing of an application, the department shall make an investigation of:
* * * * * *
(b) The need for banking or trust facilities or additional banking or trust facilities, as the case may be, in the community were the proposed bank or the principal office of the proposed trust company is to be located, giving particular consideration to the adequacy of existing banking or trust facilities and the need for further banking or trust facilities in the locality.
(c) The present and future ability of the community to support the proposed bank or the principal office of the proposed trust company and all other existing banking or trust facilities in the community.”

The Department bases its conclusions as to § 659.03(2)(a) and (b) on the results of its investigation pursuant to § 659.03(l)(b) and (c).

The Department’s investigations and conclusions pursuant to § 659.03 regarding a banking application involve discretionary opinion decisions because, inherently, banking application considerations are highly charged with policy considerations within the Department’s realm of expertise and for which the Department is responsible. The nature of the task of reviewing banking applications is not conducive to specific, detailed instructions from the legislature to the Department. However, due process is insured in that the Department’s discretion is not unbridled. The legislature had dictated clearly the basic criteria to be considered and the particular procedures to be followed by the Department in reviewing a banking application. Further, the Department’s order, which is a product of the legislature’s guidelines, must sufficiently “expose and elucidate its reasons for discretionary action [taken].” McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1 DCA 1977). See also Fraser v. Lewis, 360 So.2d 1116 (Fla. 1 DCA 1978), and Gulf State Bank v. State Dept. of Banking and Finance, 367 So.2d 671 (Fla. 1 DCA 1979). As pointed out in McDonald, the requirements of § 659.03 are fortified and amplified by the requirements of Chapter 120, Florida Statutes (the Administrative Procedure Act). As stated in Reporter’s Comments on Proposed Administrative Procedure Act, P. 20 (3/9/74), cited in McDonald-.

“Three due process checks to prevent arbitrary agency action are the requirements that reasons be stated for all action taken or omitted, that reasons be supported by ‘the record’, and that specific judicial review procedures allow the courts to remedy defects of substance.”

As in Fraser and Gulf State Bank, in the instant case, the Department followed the appropriate legislative standards and guidelines in making its determination and sufficiently elucidated its reasons for its discretionary denial of the bank charter application on grounds that the criteria set out by the legislature in § 659.03 had not been met. The Department’s reasons are supported by the record. § 659.03 is not unconstitutionally vague and indefinite.

We have considered petitioners’ remaining point and find it to be without merit.

AFFIRMED.

MILLS and ERVIN, JJ., concur.


author: MELVIN, Judge.

text:
    Edwin A. GREEN, II, as guardian ad litem for George William Burch, Appellant, v. The QUINCY STATE BANK et al., Appellees.
    No. JJ-25.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Rehearings Denied May 2, 1979.

      Edwin A. Green, II, and W. J. Oven, Jr., Tallahassee, for appellant.
    Richard J. Gardner, Quincy, Charles R. Gardner, David P. Hopstetter, of Huey, Camper & Guilday, Tallahassee, for appel-lees.
   MELVIN, Judge.

The appellant brings for review the final declaratory judgment entered in the suit of The Quincy State Bank as plaintiff against Martha B. Munroe, Clarence Munroe, a minor, Ina Jean Munroe, a minor, and George William Burch, a minor. The plaintiff bank was designated as trustee in an irrevocable trust instrument executed December 26, 1956, by Clarice P. Munroe, as trustor. The trust referred to was designated as the “George W. Munroe, Jr., Trust”. The trust instrument provided, among other matters, that if the trust beneficiary, George W. Munroe, Jr., should die before attaining the age of 40 years, the trust fund would be divided in equal shares, one share to each of his living children, and one share to his surviving widow. George W. Munroe, Jr. died June 9, 1977, prior to having attained the age of 40 years.

Upon the event of his death, George W. Munroe, Jr. was survived by his widow, Martha B. Munroe, and two children born of their marriage. Those children are Clarence Munroe, born April 22, 1970, and Ina Jean Munroe, born April 4, 1972. George W. Munroe had been previously married, and of that marriage, a child, George William Munroe, III, was born April 30, 1964. That first marriage ended via the divorce route. The former wife of George W. Mun-roe, Jr. subsequently remarried and her husband then adopted George William Mun-roe, III on February 17, 1972, and changed his name to that of George William Burch.

The issue is whether or not George William Burch is included within the term “living child” of George W. Munroe, Jr.

At the outset we emphasize that we are here dealing with the construction to be placed upon the provisions of an irrevocable trust. Upon the execution of this instrument, it was beyond the power of the trustor to alter the same so as to include any person not within its terms included, or to exclude any person that was included within its terms. We therefore have the interesting question of whether the trustor of an irrevocable trust being unable in any manner to alter the trust instrument, nevertheless has executed such instrument at the risk of the Legislature doing so by the simple process of amending the law to bring about a material alteration in the plain intent of the law as of the date of the execution of such trust.

At the time of the execution of the trust agreement, at the time of the birth of George William Munroe, III, and at the time of his adoption and the change of his name to George William Burch, the applicable statutes preserved the right of an “adopted-away” child to inherit from its natural parents. This right of inheritance from the natural parent was preserved in Section 72.22, Florida Statutes (1955), as well as Section 63.281, Florida Statutes (1971), with an immaterial variance in the language employed. Prior to the death of George W. Munroe, Jr., the Legislature, by the enactment of Chapter 73-159, Section 17, amended the law relating to the effect of adoption. Section 17 of said act provides:

“(1) A judgment of adoption has the following effect:
(b) It terminates all legal relationships between the adopted person and his relatives, including his natural parents, except a natural parent who is a petitioner, so that the adopted person thereafter is a stranger to his former relatives for all purposes, including inheritance and the interpretation or construction of docu- • ments, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship.” (Emphasis supplied)

This statute with slight variation appears as Section 63.172, Florida Statutes (1977). Chapter 73-159 contains a savings clause that provides as follows:

“Any adoption made before the effective date of this act shall be valid, and any proceedings pending on the effective date of this act are not affected.”

This provision is now § 63.222, Florida Statutes (1978).

The able trial judge considered Section 63.172 above referred to as having retroactive application to the trust instrument now under consideration, and the court then concluded that George William Burch was not a “living child” of George W. Munroe, Jr., within the meaning of the trust agreement of December 26, 1956. Such ruling was error, and we reverse.

We hold that the determination of who would constitute a “living child” of George W. Munroe, Jr., under the terms of the trust agreement referred to, must be determined by the law in effect upon the execution of such irrevocable trust agreement. The trustor in paragraph 6 of the trust provided:

“No trust existing by virtue of this instrument shall be altered, amended, revoked, or terminated, except as herein expressly provided.”

We glean from such language an intent on the part of the trustor that the trust created by her would be interpreted in accord with the law then in existence. While it is true that each person is presumed to know the law, it may not be logically concluded that one is presumed to know that the Legislature will change a law dealing with the meaning of a sentence or clause contained in an irrevocable trust agreement. We do not perceive that the Legislature intended that the provisions of Chapter 73-159, Section 17 would have retroactive application. We base that conclusion upon the subsequent provision contained in Section 22 of said chapter that “any adoption made before the effective date of this act shall be valid, and any proceedings pending on the effective date of this act are not affected.” Certainly if pending proceedings would not be affected by Section 17, logic would strongly suggest that any proceedings concluded prior to the adoption of the revision likewise would not be affected.

Any right of George William Burch to receive consideration under the trust agreement as a “living child” of his natural father is, of course, a contingent or inchoate right. However, such contingency was within the contemplation of the trustor; had it not been, such provision would not have been inserted in the trust agreement. In Jenkins v. Donahoo, 231 So.2d 809, at p. 812, the Supreme Court of Florida in a unanimous opinion stated:

“The right of trust beneficiaries to benefits in accord with the testator’s lawful direction is basic. Only changes in statutory laws not affecting substantial rights and not contrary to the expressed intent of the testator may be applied retroactively.”

The trust document here under consideration is without question a valid trust document. Rights existing under a valid contract enjoy constitutional protection. In Robbins v. Robbins, 360 So.2d 10 (Fla. 2d DCA 1978), the Court held at page 12:

“A statute cannot dissolve either an inchoate or vested right which is of constitutional magnitude.”

The declaratory judgment appealed from is reversed with directions to enter an amended declaratory judgment adjudging George William Burch also to be a “living child” of George W. Munroe, Jr., and that such living child is entitled to participate in the division of the trust in accord with the terms and provisions thereof.

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