author: BOYER, Chief Judge. SMITH, Judge,

text:
    John P. BALDWIN, Individually and claiming to be Moderator of the Session of the Madison Presbyterian Church in Madison, Florida, et al., Appellants, v. Craig MILLS et al., Appellees.
    No. Z-13.
    District Court of Appeal of Florida, First District.
    March 25, 1977.
    Rehearing Denied April 26, 1977.

      F. E. Steinmeyer, III, of Folsom & Stein-meyer, Tallahassee, for appellants.
    C. Graham Carothers, Tallahassee, Edwin B. Browning, Madison, for appellees.
   BOYER, Chief Judge.

This appeal emanates from an intra-church dispute between two factions vying for control of church property. Involved are spiritual, emotional, legal and constitutional issues. In recognition of the wall of separation erected by Thomas Jefferson between church and state as part of the First Amendment to the Constitution of the United States we must, in response to the constitutional mandate, meticulously tread around the emotional and religious issues and base our conclusions on sterile legal doctrines.

Plaintiffs in the trial court, appellees here, were Craig Mills and H. Savely McQuagge, Trustees of the Presbytery of Florida of the Presbyterian Church in the United States; Frank L. Elvery, Richard L. Scoggins, C. Franklin Beall, Louise Eyster, Reeves Bowen and Fred McGehee as and constituting the Administrative Commission of the Presbytery of Florida of the Presbyterian Church in the United States; Henry Ragans and Oscar Beck, Jr. as members of and recognized by the Presbytery of Florida of the Presbyterian Church in the United States as constituting the Church Session of the Madison Presbyterian Church in Madison, Florida. The defendants, appellants here, were (as named and designated by the plaintiffs) John P. Baldwin, individually, and claiming to be Moderator of the Session of the Madison Presbyterian Church in Madison, Florida; Bruce M. Bryan, Julian DuRant, Julian Gibson, Theodore Gibson, A. L. Hughes and Kirby Reichmann, individually and claiming to be members of the Church Session of the Madison Presbyterian Church in Madison, Florida, and Florida First National Bank at Madison, a bank holding funds on deposit in the name of the church. The attorneys for the respective parties entered into a lengthy stipulation which was filed in evidence before the trial judge agreeing upon numerous facts many of which, although not relevant to the application of sterile legal doctrines, are necessary in order to understand the factual basis of the controversy.

A Church Session is the governing body of a local church. A Presbytery is composed of several churches in a geographical area; a Synod is generally composed of all Presbyteries within a state or other designated geographical area and the General Assembly is the highest governing body in the hierarchical spiritual structure of the Presbyterian Church.

The first Presbyterian Church was established in America on the Virginia coast in 1607. Originally there was one main body of Presbyterianism which was known as the Presbyterian Church in the United States of America. (PCUSA) The Madison Presbyterian Church located at Madison, Florida was founded in 1840. It was originally a part of the Presbytery of Georgia but later became a congregation of the Presbytery of Florida. It is, and at all times has been, an unincorporated entity. Since its formation in 1840 all of the church property has been held by trustees elected by a majority of the congregation of the church. The primary church property was acquired by deed executed in March of 1851 to the “Trustees of the Presbyterian Church at Madison aforesaid and their successors in office * * * To Have and To Hold the said lots of land to and for the use of the Presbyterian Church at Madision”. In 1861 the Presbytery of Florida met at the Madison Presbyterian Church in Madison and unanimously adopted a resolution severing its affiliation with the Presbyterian Church in the United States of America (PCUSA) and concurred in a call for Commissioners for the organization of a General Assembly with power to organize a new church. The Madison Church sent a delegate to the meeting of the General Assembly held in 1861 (held incidentally at the Madison Church) at which time a resolution was unanimously adopted by which a denomination was formed bearing the name Presbyterian Church in the Confederate States of America. Thereafter, the name of that denomination was changed to the Presbyterian Church of the United States (PCUS). The parties have stipulated that neither the General Assembly of the Presbyterian Church in the United States nor the Synod of Florida nor the Presbytery of Florida has ever contributed any property to the Madison Presbyterian Church, nor has it provided any funds with which the property of said church was acquired.

On March 11,1973, John P. Baldwin, then the regular ordained and installed Pastor of the Madison Presbyterian Church, presided over a meeting of the congregation. Upon a vote taken at such meeting, a petition was adopted requesting the Presbytery of Florida to dismiss the Madison church and its property from the Presbytery and to dismiss and dissolve the relationship between Rev. Baldwin and the Presbytery of Florida and the PCUS. Following various intra-church maneuvers a resolution was adopted by the congregation of the Madison Presbyterian Church on May 20, 1973 withdrawing from and severing all relationship with the Presbytery of Florida and the PCUS. On June 5, 1973 the Presbytery of Florida removed the name of John Baldwin from the roll of the Presbytery and declared the pulpit of the Madison Presbyterian Church to be vacant. The Presbytery declared and recognized Messrs. Beck and Ragans, among others, as constituting the Church Session of the Madison Presbyterian Church with full authority to assume control of the congregation and all land, buildings, personal property and monies of the local church.

On August 7, 1973 plaintiffs (appellees here) filed an action in Circuit Court asking that the individual defendants and all others associated with them be restrained from interfering with the plaintiffs and other “loyal” members of the PCUS in the use of the property of the Madison Presbyterian Church; from using or attempting to use the property of the Madison Presbyterian Church for any purpose except in conformity with and subject to the government and discipline of the PCUS; from selling, disposing of or encumbering the property of the Madison Presbyterian Church; from paying or delivering to any person or corporation any money, funds, bonds, securities, or other property in their possession or under their control constituting the property of the Madison Presbyterian Church and from occupying the Manse of the Madison Presbyterian Church. The foundation of the plaintiffs’ cause of action as alleged in their complaint was a “trust originally imposed upon said property [of the Madison Presbyterian Church] for the promulgation of the trusts and doctrines of the Presbyterian Church in the United States * * ”. At the conclusion of a lengthy trial, final judgment was entered for the plaintiffs. This appeal followed.

Appellants first argue that appellees did not have standing in the trial court to maintain the action and that the proper representative of the PCUS is the General Assembly. According to appellants, the trial court erred in concluding that the Presbytery of Florida did have standing and further erred in citing as authority for his conclusions certain provisions of the PCUS constitution as found in the Book of Church Order.

In determining whether a party adequately represents a class, the test is whether the interests of the persons who are not parties to the suit can be better protected if they act for themselves. In each case where the alleged representatives of a class are challenged, the question is whether the purported representatives “are sufficient under the circumstances of the case to truly represent the class as to whom the suit is directed.” Applying those principles, we find that appellees were and are proper parties to sue on behalf of the proposed class. The individual plaintiffs comprised three separate groups: The Trustees of the Presbytery of Florida, the Administrative Commission of the Presbytery of Florida of the PCUS, and those members of the Madison church remaining “loyal” to the PCUS and purporting to constitute the Session of the Madison church. We find nothing in the record to refute the trial court’s finding that those groups truly and fairly represent the national organization. It is no argument to claim that another group could serve as the representative of the class. While the General Assembly of the PCUS may represent the national organization in most matters, there has been no showing that the General Assembly is to be the exclusive representative of the PCUS in class actions nor that the appellees would not adequately represent the PCUS in the present class action. In the absence of either showing, we will refrain from disturbing the trial court’s conclusions as to the issue of standing.

The more fundamental issue is whether the trial court erred in imposing an implied trust in favor of the PCUS upon the property of the Madison church. That question raises the spectre of the First Amendment of the Constitution of the United States. The “Implied Trust Doctrine” as applied in church disputes has its origin in a vintage U.S. Supreme Court case, Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871). To summarize the holding of that case as it may be relevant to the case sub judice, a local church belonging to a general church organization which is hierarchical in nature may not withdraw from the general church organization and still retain local church property or the use of it: Withdrawal from the national organization causes the local church property to devolve to the national organization by virtue of the Implied Trust Doctrine. Although the Watson case was decided according to federal common-law principles, and was rendered before Erie R. Co. v. Tompkins, and before the requirements of the First Amendment were held applicable to the states through the Fourteenth Amendment, the underlying philosophy of the decision was constitutional in nature and was recognized as such in Presbyterian Church in United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra.

The latter case, appellants urge, sounded the death knell to the Implied Trust Doctrine. A closer reading of the case leads to a contrary conclusion. In the Mary Elizabeth Blue Hull case, the court considered a similar factual situation involving the same denomination as the case sub judice and specifically invalidated an aspect of Georgia law which submitted the case to the jury on the theory that a trust would be implied on local church property for the benefit of the general church on the condition that the general church adhere to its tenets of faith and practice existing at the time of affiliation by the local church. In other words, the question for the jury was whether the actions of the general church amounted to a fundamental or substantial abandonment of the original tenets and doctrines of the general church. The United States Supreme Court found that such a question was constitutionally impermissible because the so-called' “departure-from-doctrine” element of the Georgia implied trust theory required, “* * * the civil court to determine matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion.” The court noted that civil courts should not resolve controversies over religious doctrine and practice, but recognized that there were neutral principles of law which could be applied without “establishing” churches. Thus, the Court invalidated the “departure-from-doctrine” element of Georgia’s implied trust theory; but not the entire implied trust theory itself.

The teachings of Mary Elizabeth Blue Hull are that the state has a legitimate interest in resolving property disputes and that a civil court is a proper forum for such resolution notwithstanding that the dispute involves a church. We are also admonished that civil courts have no role in determining ecclesiastical questions: However, not every civil court decision as to property claimed by a religious organization jeopardizes neutral principles of law, developed for use in all property disputes, which can be constitutionally applied in church property disputes.

It necessarily follows therefore that application of neutral principles of law requires judicial interpretation of instruments granting property to religious organizations to be conducted under the same principles as those applied to instruments granting property to any individual or organization. Application of neutral principles of law will not prevent the creation of an express or implied trust in favor of a religious organization where the conveying instrument contains the appropriate language or where the religious organization has supplied congregational property or the funds for its acquisition.

Applying the foregoing teachings to the unique facts of the case sub judice we are unable to agree with the conclusion of the learned trial judge that “record title to the property in dispute is held by the Trustees of Madison Church of Madison, Florida for those persons recognized as members of that particular church by the respective courts of the Presbyterian Church U.S. subject to an implied trust in said property for the uses and purposes of those belonging to and professing to be members of the Presbyterian Church U.S.” The documents of title, which are the primary source of information in all property disputes, reveal that title to the church property is vested in the Trustees of the Presbyterian Church at Madison or the Trustees of the Madison Presbyterian Church of Madison. The one deed which gives any indication of intended use prescribes that the property is “for the use of the Presbyterian Church at Madison”. The root deed predates the existence of the PCUS. In the absence, then, of some subsequent document or understanding between the Madison church, which predated the PCUS, and the latter organization it is apparent that no trust could have come into being. The evidence reveals no such subsequent understanding nor basis for a trust of any kind, implied or express.

No express trust can be said to have arisen under neutral principles of law because, as already noted, none of the conveying instruments contain any reference whatsoever to the Presbytery of Florida nor to the PCUS, and the evidence reveals no subsequent document nor understanding of that effect.

If an implied trust is to be imposed under neutral principles of law it must be either a “constructive trust” or a “resulting trust”. A constructive trust arises to avoid unjust enrichment as a result of fraud, duress or mistake; as where, for instance, a party not named in the conveying instrument has provided all or part of the funds by which the property was acquired. By stipulation of the parties neither the Presbytery of Florida nor the PCUS provided any funds with which any of the property of the Madison church was acquired. A resulting trust arises to accomplish the presumed intent of the parties, as where the parties intend that the holder of the title is to hold in behalf of the other. The plaintiffs produced no evidence at trial that any of the properties conveyed to the Madison church were intended to be conveyed for the benefit of any entity other than the congregation of the Madison Presbyterian Church. In that regard it is desirable to again repeat that the property of the Madison church which is of principal value and importance was conveyed to the Madison church several years before the PCUS even came into existence. Indeed, if it might be said that an implied trust exists at all it would be in favor of the Presbyterian Church in the United States of America (PCUSA), the “parent” organization which yet exists and with which the Madison church was affiliated prior to withdrawal in 1861. It is difficult to understand how the Madison church might be held to have successfully withdrawn itself and its property from the PCUSA in 1861 but be unable in 1973 to withdraw itself and its property from the PCUS which could not be the “mother” church since it came into existence after the Madison church was already 21 years of age. It is axiomatic that a mother must be older than her child.

Prior to Presbyterian Church of the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra, and its progeny, Presbyterian Church in United States v. Eastern Heights Presbyterian Church, supra, it might have been argued that Watson v. Jones had created a third category of implied trusts, in addition to the traditional resulting trusts and constructive trusts. However, a careful reading of Watson v. Jones reflects that it was not necessary under the facts there recited to create a third category, as the facts of that case fit the traditional application of implied trust. If indeed Watson v. Jones may be said to have created a third category of implied trust, it is clear in the light of Mary Elizabeth Blue Hull that it has lost some of its vitality since Erie R. Co. v. Tompkins and that now neutral principles of trust law' applicable to all such controversies in the particular jurisdiction will be applied in church property disputes. Lest it be urged that St. Johns Presbytery v. Central Presbyterian Church, recognized a third category of implied trusts in Florida we refer back to that opinion and find that there is nothing there to so indicate. The facts in St. Johns Presbytery fit traditional trust principles. Indeed, a careful reading of that opinion reveals that the author, in distinguishing Reid v. Barry, struggled mightily to demonstrate that there was no intention of engrafting any new doctrine onto the traditional principles of trusts in Florida. It necessarily therefore follows, applying neutral principles of trust law, that in order to impress an implied trust the facts must establish either a constructive trust or a resulting trust. The facts sub judice support neither. Appellees do not even contend that there exists an express trust. It follows then that there is no trust at all.

The stipulation of the parties recites that “since the formation of the Madison Presbyterian Church in 1840 all of the property of the said church has been held by trustees elected by a majority of the congregation of the Church”, that “defendants Bruce M. Bryan, Julian DuRant, Julian Gibson, Theodore Gibson, A. L. Hughes and Kirby Reich-mann constituted a majority of the Session of the Madison Presbyterian Church, eleted by a majority of the congregation of said church, at the time of the actions complained of by the plaintiffs in this cause” and that “defendants, Bruce M. Bryan, Julian DuRant, Julian Gibson, A. L. Hughes and Kirby Reichmann, constituted a majority of the Trustees of the Madison Presbyterian Church, elected by a majority of the-congregation of said church, at the time of the actions complained of by the plaintiffs in this cause.” (Emphasis added) Therefore, application of neutral principles of law leads to the inescapable conclusion that the ownership and control of the local church property resides in Trustees of the Madison Presbyterian Church elected by a majority of the congregation.

In so holding we collide with neither Watson v. Jones, supra, St. Johns Presbytery v. Central Presbyterian Church, supra, nor any of the other numerous cases relied upon by appellees. Application of the principles announced in those cases must necessarily be restricted to factually similar situations, none of which exist in the case sub judice.

In Watson v. Jones, the author of the opinion carefully recited that the subject church was originally organized “under the authority and as part of” the national organization and that the church property was purchased after its organization and therefore after it became a part of the national church. The trustees of the church were thereafter incorporated. None of those characteristics are applicable to the Madison church. However, the most important distinguishing feature between Watson v. Jones and the case sub judice is the admission, as recited in the former opinion: “Though neither the deed nor charter said this in terms, it was admitted that both contemplated the connection of the local church with the general Presbyterian one, and subjected both property and trustees alike to the operation of its fundamental laws.”

St. Johns Presbytery v. Central Presbyterian Church, supra, is likewise distinguishable. There the affected church (Central Presbyterian Church of St. Petersburg) had been organized and established by the First Presbyterian Church of St. Petersburg from whence it received financial assistance and from whence it received a gift of the disputed property, the conveyance being to “Trustees of West Central Presbyterian Church of St. Petersburg and their successors without cost for the purpose of establishing a Presbyterian Church consisting of a number of professing Christians, with their off-spring voluntarily associated together, for divine worship and Godly living, agreeable to the Holy Scriptures, and submitting to the government and discipline of the Presbyterian Church in the United States as contained in the Book of Church Order.” The church was thereafter incorporated as “Central Presbyterian Church of St. Petersburg”, the charter of which the writer of the opinion recited “provides that membership therein shall be governed by the Book of Church Order of the Presbyterian Church. The Book of Church Order further provides for management of the affairs of the church or the corporation which could be rescinded or modified only by the Presbytery of the Presbyterian Church in the United States.” That Justice Terrell, the writer of the opinion, was of the view that those facts were necessary and important to the opinion and decision in that case is clearly reflected by the manner in which the facts are recited in the opinion distinguishing Reid v. Barry, supra, and by the statement by which he concluded, viz: “Overlooking this, the Chancellor fell into error.”

Because they are factually dissimilar, albeit church property schisms and disputes are involved, the other cases relied upon by appellees are also inapplicable.

Appellants also persuasively argue that facts and law are separate and distinct and that although numerous cases involving Presbyterian churches have recited that they are hierarchical rather than congregational in structure such determination is not law but is factual and therefore dependent upon the evidence adduced in a particular case. Certainly we agree that whether a particular church, whatever its denomination, is hierarchical or congregational is a matter of fact and not of law and a matter of which a court may not properly take judicial notice. However, although we are fully cognizant that substantial evidence was adduced in the case sub judice tending and intended to prove that the Madison Presbyterian Church at Madison, Florida is congregational rather than hierarchical or ecclesiastical, we do not find it necessary, because of our resolution of the case on the other grounds already announced, to wander into that thicket.

For the same reason it is unnecessary for us to address appellants’ fourth point by which they urge that the trial court imper-missibly and unconstitutionally admitted into evidence, considered and relied upon ecclesiastical pronouncements, declarations and documents, a substantial number of which are referred to in the final judgment here appealed.

Having determined that under the evidence of this case the property of the Madison Presbyterian Church at Madison, Florida is not impressed with any trust, implied or express, it necessarily follows that title and right of control are in the representatives of the local church, the appellant Trustees, and that the representatives of the hierarchy of the PCUS, the appellees here, have no interest therein.

REVERSED AND REMANDED with directions to enter judgment in favor of the defendants in the trial court, appellants here, not inconsistent with the views herein expressed.

RAWLS, J., concurs.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

In my judgment the majority decision departs from the well-settled rule of Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871) and St. Johns Presbytery v. Central Presbyterian Church, 102 So.2d 714 (Fla.1958).

We are considering several deeds unto the “Trustees of the Presbyterian Church at Madison” and the “Trustees of the Madison Presbyterian Church of Madison.” We are also considering bank accounts, securities and personal property owned and held by “the Madison Presbyterian Church.” Our task here, at least in part, is to identify the congregation which is “the Presbyterian Church at Madison.” My colleagues point approvingly to “the representatives of the local church,” meaning appellants, but they do not demonstrate that appellants and their allies, rather than appellees Ragans and Beck and theirs, are that “local church.” Their decision contradicts that of the ecclesiastical courts of the Presbyterian Church in the United States (PCUS), to whose authority all these persons have until recently submitted, which have identified the Presbyterian Church at Madison as the congregation here represented by appellees Ragans and Beck.

In a hierarchical organization such as PCUS — there being no basis in law or fact to disturb the chancellor’s finding that PCUS is indeed hierarchical — authority to identify the local congregation is in the hierarchy. Contrary to the explicit command of the First Amendment, as made applicable to the States by the Fourteenth, the majority here undertake to overrule, as a matter of civil law, PCUS’ determination of that purely ecclesiastical matter. If a majority of the Madison congregation may declare themselves free of allegiance to PCUS and, as the seceded “local congregation”, make their claims to church property effective by mandate of a civil court, then every such majority’s secession with property would succeed. The distinction between congregational and hierarchical churches, long recognized by the churches themselves, by all their members, and by volumes of law would be rendered meaningless. I believe the majority’s decision accomplishes just that, contrary to Watson v. Jones:

“. . . [W]e think the rule of action which should govern the civil courts, founded in a broad and sound view of the relations of church and state under our system of laws, and supported by a preponderating weight of judicial authority is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” 80 U.S. (13 Wall.) at 727, 20 L.Ed. at 676;

and contrary to St. Johns Presbytery:

“It matters not whether those who withdraw from the mother church constitute a majority or a minority faction, the church property remains with the mother church. There are exceptions to this rule when the schism occurs in a church whose government is congregational in form like the Baptist or Congregational denominations but in churches bound together by associated ecclesiastical government when the local church is obedient to a larger or more important religious organization and is governed by it, such as the Presbyterian, Catholic, Episcopal, Methodist and Lutheran, I have found no exception to this rule. They could not function under any other rule.” 102 So.2d at 718.

Attempting to distinguish their decision from the great number of cases holding that a local group may not withdraw from a hierarchical religious body and convert church property to its own use, the majority give controlling effect to the fact that one parcel of land was acquired in the name and for the use of the Madison Presbyterian Church in 1851, before the congregation’s affiliation with PCUS. No implied trust in favor of PCUS could attach to the property at conveyance, the majority reason, because PCUS was not then in existence. Further, the majority discern no “subsequent document nor understanding” dedicating the church property to the use and discipline of PCUS. That reasoning is unconvincing on several grounds:

First, the majority do not account for real property acquired by the Madison Presbyterian Church in 1931, 1947, 1950, and 1965, long after the congregation affiliated with PCUS in 1861, or for personal property acquired by the Church since that date. Under the majority’s own analysis, any such property falls squarely within the recognized rule of Watson and St. Johns Presbytery, and would be subject to the control of the congregation recognized by PCUS. The majority neither recognizes nor reconciles the consequent need, according to their analysis, for a Solomonic division of the church property. Plainly, the majority’s implication is that the disposition of all real and personal property acquired by the congregation since 1861 is controlled by its disposition of “the primary church property,” meaning the land acquired in 1851. Though the main edifice of the church was and may now be constructed on that property, there is no legal basis, let alone an ecclesiastical one, for embodying “the church” or its congregation as that building.

Secondly, although Watson, St. Johns Presbytery and several other decisions involved property acquired by a congregation after its affiliation with the hierarchical body, nothing in any of those opinions suggests that fact controls the outcome. Three of the cases dismissed by the majority as “factually dissimilar” give no indication whether the property was acquired before or after the congregation’s affiliation with the hierarchical body. Froelich v. Rowley, 102 So.2d 720 (Fla.1958); Ferguson v. Poitier, 306 So.2d 212 (Fla.4th DCA 1975); Adickes v. Adkins, 264 S.C. 394, 215 S.E.2d 442 (1975).

Finally, the majority’s finding that there was no “understanding” affecting property between the congregation and PCUS ignores the character of the commitment made by the Madison Church when it affiliated with PCUS in 1861. Thereby, the Madison Presbyterian Church adopted the constitution of PCUS — the Confession of Faith and Book of Church Order — and submitted itself to the discipline and authority of the higher courts of PCUS. That commitment was total and without reservation. Nothing in it suggests a purpose to except any or all of the property here contested. In Reformed Bethanien Church v. Ochsner, 72 S.D. 150, 31 N.W.2d 249 (1948), the Supreme Court of South Dakota dealt with contentions similar to those adopted here by the majority. There, as here, the “local congregation” — the Reformed Bethan-ien Church in Scotland, South Dakota — acquired land for a church building before affiliating with the hierarchical church with which it later contended. There, as here, it was suggested that property acquired by the Scotland congregation prior to affiliation with the Reformed Church was exempt from the congregation’s commitment to the authority of the church at large, and so was subject to the later claims of a majority of the local congregation. The court rejected that contention, holding:

“We perceive no reason for arriving at a different conclusion with reference to property held by the local unit prior to its affiliation. In the absence of a specific understanding or agreement preserving a separate entity and expressing an intention to withhold its property, we think it must be presumed that by voluntarily merging itself as an organ of the larger body, it intended to dedicate its all to the purposes of that body. Such existence as it has had since this fusion is as but a part or member of a whole, and that which is held by or for it is held by or for the whole.” 72 S.D. at 159-60, 31 N.W.2d at 254,

I conceive that the Madison congregation also committed “its all” to the authority and discipline of the Presbyterian Church in the United States.

In 1861 and for a time afterwards, it might well have been argued, as the majority here suggests, text at n.16, that the Madison congregation’s withdrawal from the Presbyterian Church in the United States of America (PCUSA) was ineffective to deprive that hierarchical church, and any remaining congregation in Madison which was loyal to it, of the beneficial use and ownership of the Madison church property. Surely the claims of PCUSA at that time were quite as legitimate, under the Watson rule, as those of PCUS today. Obviously the potential claim of PCUSA was frustrated by the ravages of a great war, PCUSA’s consequent lack of access to a judicial remedy and the absence in Madison of a loyal congregation. Whatever may have been the merits of PCUSA’s latent claim 116 years ago, it is now barred. The work and faith of successive generations of Madison Presbyterians born or converted to, baptized and married in, and buried from the Madison church long ago legitimated the 1861 commitment of the congregation and its property to the doctrine and authority of PCUS. Norton v. Jones, 83 Fla. 81, 90 So. 854 (1922); Greek Catholic Church of St. Michaels v. Archbishop Platon Roizdestvensky, 67 Colo. 217, 184 P. 295, 18 A.L.R. 690 (1919). Cf. Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956).

In short, I believe the chancellor was correct in holding:

“When the individual Defendants [appellants] withdrew from the Presbyterian Church US and organized themselves into a separate and independent organization, they carried nothing but their membership with them, and the property remained with the Presbyterian Church US through its respective courts.”

I would affirm.

      . Robert M. Healy, Jefferson on Religion in Public Education, 130 et seq. (1962).

      . See Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, U.S.S.C. 1969, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658.

      . The term “Presbyterian Church”, as the evidence in this case demonstrates, has meant different things at different times and is not readily susceptible to specific definition. There are now approximately eight Presbyterian denominations in the United States with varying constitutions and governmental structures.

      . The Presbytery did in the 1870’s make minimal payments toward the Pastor’s salary for time he devoted to ministering to another church.

      . 74 in favor and 29 opposed.

      .The parties have stipulated that appellants Bruce M. Bryan, Julian DuRant, Julian Gibson, Theodore Gibson, A. L. Hughes, and Kirby Reichniann constituted a majority of the Session of the Madison Presbyterian Church, elected by a majority of the congregation of said church, at the time of the actions complained of by plaintiffs (appellees) in this case. They also stipulated that at the time of the actions complained of by the plaintiffs the defendants (appellants here) Bruce M. Bryan, Julian Du-Rant, Julian Gibson, A. L. Hughes and Kirby Reichmann constituted a majority of the Trustees of the Madison Presbyterian Church, elected by a majority of the congregation of said church.

      . Ross v. Gerung, 69 So.2d 650 (Fla.1954).

      . Ibid.

      . In the adjudicatory portion of the final judgment here appealed the trial judge stated “IT IS THEREFORE, ORDERED AND ADJUDGED that the title and possession of the real property hereinabove described is in the Madison Presbyterian Church in Madison, Florida, subject to an implied trust for the use and benefit of the Presbyterian Church in the United States.”

      . The parties stipulated that the Walnut Street Presbyterian Church in Louisville, Kentucky over which the litigation occurred in Watson v. Jones was a Presbyterian church which was a congregation of the Presbyterian Church in the United States of America (PCU-SA) and that said Walnut Street Presbyterian Church was not, at the time said case was litigated, subject to the government and discipline of the Presbyterian Church of the United States (PCUS).

      . 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

      . 393 U.S. at 450, 89 S.Ct. at 607.

      . 393 U.S. at 449, 89 S.Ct. 601.

      . On remand, the Georgia Supreme Court, finding that the departure-from-doctrine was an essential element of Georgia’s implied trust doctrine, held that since the departure-from-doctrine was invalid, the entire implied trust doctrine must fail. Using neutral principles of law, specifically, an examination of the formal documents of title, the court concluded that title to the church property was vested in the local church. Presbyterian Church in United States v. Eastern Heights Presbyterian Church, 225 Ga. 259, 167 S.E.2d 658 (1969), cert. den., 396 U.S. 1041, 90 S.Ct. 680, 24 L.Ed.2d 685 (1970).

      . It has also been stated by Justice Brennan, in a concurring opinion joined by two other Justices, that the implied trust doctrine was one of the three permissible approaches for settling church property disputes, so long as there was no consideration of doctrinal matters, whether ritual and liturgy of worship or tenets of faith. Maryland and V. Eldership of Churches of God v. Church of God at Sharpsburg, Inc., 396 U.S. 367, 368, 90 S.Ct. 499, 24 L.Ed.2d 582 (1970).

      .It is interesting to note that PCUS itself is an organization which was founded upon the principle of unilateral withdrawal from a denomination, having been founded by dissenters, the Presbytery of Florida among them, which, as previously mentioned, unilaterally withdrew in 1861.

      . St. Johns Presbytery v. Central Presbyterian Church, 102 So.2d 714 (Fla.1958).

      . Reid v. Barry, 93 Fla. 849, 112 So. 846 (Fla.1927).

      . So states the author of the opinion.

      . 80 U.S. (13 Wall.) at page 683.

      . 102 So.2d 719.

      . Presbytery of the Everglades v. Morgan, 125 So.2d 762 (FIa.3d DCA 1961); Froelich v. Rowley, 102 So.2d 720 (Fla.1958); Nealey v. Butler, 187 So.2d 658 (Fla.3rd DCA 1966); First Continuing Presbyterian Church of Wauchula, Florida, Inc. v. Westminister Presbytery, 316 So.2d 663 (Fla.2d DCA 1975); Ferguson v. Poitier, 306 So.2d 212 (Fla.4th DCA 1975) and Adickes v. Adkins, 264 S.C. 394, 215 S.E.2d 442 (1975).

      . See Presbyterian Ch. In U.S. v. Eastern Heights Pres. Ch., 225 Ga. 259, 167 S.E.2d 658 (1969), wherein that court determined the place of title of church property after holding the property to be free of an implied trust following remand by the United States Supreme Court in Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, supra. As stated in Footnote (14) supra, certiorari was denied by the United States Supreme Court at 396 U.S. 1041, 90 S.Ct. 680, 24 L.Ed.2d 685 (1970). Consideration of the holding of that case leads to the conclusion that since Erie R. Co. v. Tompkins, supra, the implied trust doctrine announced in Watson v. Jones, supra, is not “commonlaw” binding on the states but that whether a state adheres to such theory is a matter to be decided by the courts or legislature of the states involved.
      For a complete discussion of the current status of the implied trust doctrine in Florida and the remainder of the United States, please see the annotation found at 52 A.L.R.3d 324.

      . As elsewhere recited in this opinion, the basis of the plaintiffs’ cause of action was an alleged “trust originally imposed upon said property” and, as recited in Footnote (9) above, such was the foundation of the Final Judgment here appealed: That basis and foundation having failed, reversal is required.


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    In re the Matter of Deena Theresa CASTRO, a minor, incompetent by reason of minority. In re the Matter of Kimberly Ann CASTRO, a minor, incompetent by reason of minority.
    Nos. 76-261, 76-262.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    Rehearing Denied April 25, 1977.
    John B. DiChiaro, Bruno L. DiGiulian, of DiGiulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for appellant.
    Steadman S. Stahl, Jr., of Varón, Stahl & Kay, P. A., Hollywood, for appellee.
   DAUKSCH, Judge.

This is an appeal of an Order appointing a guardian of the property of two minors. We reverse.

The two female children, ages four and six, were born of the marriage of Bernard Castro, Jr., and Julie Ann Castro. The children have always lived with their parents, and have lived with their mother alone since the death of their father. They are in good health and evidently enjoy a good relationship with their mother.

Upon the death of their father, the children inherited a large estate which stemmed from their grandparents, Mr. and Mrs. Bernard Castro, Sr. The grandfather filed two petitions for appointment of a guardian for the property of incompetents. Based on those petitions the lower court appointed an attorney as guardian, despite the mother’s petition for her own appointment, and it is from that order that the mother appeals.

This matter is aggravated by the fact that the mother is alleged to have killed the father; she refused to answer any questions on deposition except as to her name, age and date of birth. Yet there was no evidence of the mother’s lack of qualification to act as the guardian of the estate, nor was there any evidence of the qualification of the person appointed except that he was known by the trial court to be a most respected attorney. The court found in regard to the mother that “she is not the proper person to be the guardian of the property of the children because she does have a conflict with these children” but found, “she is a fit and qualified person” and said, “I see nothing wrong in the probate being filed and the mother named as the personal representative of the estate because that is what the law provides, so long as she has not been convicted of a crime, or a number of other things that have not been shown.”

The applicable statutory law is found in Sections 744.301 and 744.312, Florida Statutes (1975). The next of kin who is a fit and proper person, qualified to act, should be given preference by the court for appointment as guardian. When the statutes are considered along with the case of Comerford v. Cherry, 100 So.2d 385 (Fla.1958), we find that a court has only limited discretion in the appointment of a guardian of the person or property: It must appoint in accordance with the statute, giving first consideration to next of kin and probably primarily to the parents of minors. That was not done here. We hold that the trial court erred when it found the mother fit and qualified but decided that since a potential conflict existed another person should be appointed. That was a drastic measure when we consider the age of these children, who live with their mother, and the statutory requirements for terminating a guardianship. See Section 744.474, Florida Statutes (1975). In the event that a legal conflict is shown to arise between mother and children in the future, a guardian ad litem might then be appointed. Section 744.391, Florida Statutes (1975).

The Order of appointment is reversed and this cause remanded for entry of an order of appointment of Julie Ann Nordstrom Castro as guardian of the property of Deena Theresa Castro and Kimberly Ann Castro and to fix the amount of guardian’s bond pursuant to Section 744.351, Florida Statutes (1975).

REVERSED and REMANDED.

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

      . The mother is the administratrix of the estate of the decedent.


author: PER CURIAM. BOYER, Chief Judge,

text:
    CITY OF JACKSONVILLE, Florida, Appellant, v. S. Morgan SLAUGHTER, Clerk of the Circuit Court, Duval County, Florida, Appellee.
    No. DD-136.
    District Court of Appeal of Florida, First District.
    March 29, 1977.
    Rehearing Denied April 26, 1977.

      Dawson A. McQuaig, Gen. Counsel, and William Lee Allen, Asst. Gen. Counsel, Jacksonville, for appellant.
    Fred W. Baggett, Tallahassee, for appel-lee.
   PER CURIAM.

The City of Jacksonville, defendant below, appeals the circuit court’s determination that the deputy clerks of the Office of the Clerk of the Circuit Court of Duval County are exempt from the civil service system of the city by virtue of their claimed status as constitutional officers. We agree that the lower court erred in its declaration of exemption and therefore reverse.

The consolidated government of the City of Jacksonville came into existence on a limited basis on March 1, 1968, through the enactment of Ch. 67-1320, Laws of Florida, as authorized by constitutional authority. On December 23, 1968, in an action brought by the plaintiff-appellee, S. Morgan Slaughter against the City, the Circuit Court of Duval County entered a final judgment that the plaintiff, as well as his employees, were subject to all provisions of the city charter. This judgment was not appealed.

In 1975 Slaughter brought this action for declaratory judgment asking that his deputy clerks be declared exempt from the local civil service system. He argued that the Clerk of the Circuit Court of Duval County is a constitutional officer and therefore enjoys immunity from the regulatory provisions of Ch. 67-1320 under Article III, Section 11(a)(1), Florida Constitution (1968), which provides in part:

“There shall be no special law or general law of local application pertaining to:
(1) election, jurisdiction or duties of officers, except officers of municipalities, chartered counties, special districts or local governmental agencies; . . . .” (Emphasis added.)

He then refers to a line of cases holding that deputy sheriffs are officers and not employees.

Slaughter, however, overlooks the wording of Article III, Section 11(a)(1) in which officers of municipalities, chartered counties, special districts or local governmental agencies are excluded from constitutional immunity and consequently may be subject to regulation by special legislation. The validity of Jacksonville’s charter was challenged and upheld in Jackson v. Consolidated Government of the City of Jacksonville, 225 So.2d 497 (Fla.1969). The exception for regulation of chartered county officers was added to the 1968 Constitution so that cases construing the regulation of non-excepted officers under the 1885 Constitution are not controlling here. Even if it be argued that Article III, Section 11(a)(1), which became effective January 7, 1969, subsequent to the enactment of Chapter 67-1320, is not controlling, Article VIII, Section 9, an amendment to the 1885 Florida Constitution authorizing the legislature to provide a consolidated charter for Duval County similarly authorized the legislature to bring the clerk’s employees under the civil service system.

REVERSED.

MILLS and ERVIN, JJ., concur.

BOYER, C. J., dissents.

BOYER, Chief Judge,

dissenting.

I would affirm.

      . Art. VIII, § 9, Fla.Const. (1885), and incorporated by reference in Art. VIII, § 6, Fla.Const. (1968).

      . The Honorable Robert J. Waybright, in that 1968 proceeding, found:
      “1. That the Relator is an officer of the Consolidated Government of the City of Jacksonville, a municipal corporation, hereinafter referred to as the ‘Consolidated Government’, created by Chapter 67-1320, Laws of Florida, 1967, as amended pursuant to Article VIII, Section 9, Constitution of the State of Florida, hereinafter referred to as the ‘Charter’; and as such he is subject as a matter of law to all of the provisions of said Charter applicable to his position as Clerk of the Circuit Court of Duval County and of the Municipal Court of the City of Jacksonville, both positions hereinafter referred to as ‘Clerk’, including but without limitation:
      (a)That from October 1, 1968 to January 7, 1969, the effective date of the Constitution of the State of Florida of 1968, the Relator, as Clerk, is not subject to the budgetary control of the consolidated government, but on the contrary is a ‘fee officer’ deriving his compensation and income from fees collected by his office, with the duty to remit all ‘excess fees’ over and above the lawful expenses of the office to the consolidated government.
      (b) That Relator, as Clerk, is subject to the budgetary control of the consolidated government from and after January 7, 1969, the effective date of the Constitution of the State of Florida of 1968, and as such, must comply with the budgetary requirements of Article 15 of the Charter.
      (c) That Relator is also subject to the requirements of Chapter 3, Article 7 of the Charter, relating to central services.
      (d) That the civil service provisions of the Charter are applicable to the employees of the Clerk.”

      . Blackburn v. Brorein, 70 So.2d 293 (Fla.1954); Sweat v. Akin, 70 So.2d 514 (Fla.1954). See also Johnson v. Wilson, 336 So.2d 651 (Fla. 1st DCA 1976).

      . Art. VIII, § 9, Fla.Const. of 1885, adopted 1934 (and subsequent to Art. Ill, § 20, which prohibited the legislature from enacting special or local laws regulating the jurisdiction and duties of any class of officers), provided as to the consolidation of Duval County:
      “. . . The offices of Clerk of the Circuit Court and Sheriff shall not be abolished but the Legislature may prescribe the time when, and the method by which, such offices shall be filled and the compensation to be paid to such officers and may vest in them additional powers and duties. . Nothing contained herein shall affect Section 20 of Article III of the Constitution of the State of Florida, except as to such provisions therein as relate to regulating the jurisdiction and duties of any class of officers . . . (Emphasis added.)


author: ERVIN, Judge.

text:
    Harold TAINES et al., Appellants, v. CAPITAL CITY FIRST NATIONAL BANK, a National Banking Corporation, Appellee.
    No. CC-150.
    District Court of Appeal of Florida, First District.
    March 30, 1977.
    Rehearing Denied April 18, 1977.

      Brian T. Hayi s, Monticello, for appellants.
    William M. Smith and Timothy B. Elliott of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee.
   ERVIN, Judge.

This is an appeal by appellants from a final summary judgment finding appellants, as accommodation parties, liable to appellee Bank on a promissory note. On March 8,1974, Terrell-Brown and Company, Inc., executed a promissory demand note payable in one year to Capital City First National Bank. Demand for full payment was made by the Bank in September, 1974. When payment was not made, suit was filed in October, 1974. The Taines, however, were not then personally served. In January, 1975, the Bank and the obligors who were served entered into a stipulation while the suit was in progress, which was filed in the Circuit Court of Leon County, Florida. Subsequently, the terms of the stipulation went into default; service of process was perfected on the Taines and the Taines answered the complaint on the original note alleging that the stipulation was a novation; thereby denying their obligation, and asserting that the effect of the stipulation was to extend the period of time for payment of the note without their consent, change the interest rate, calling for the payment of interest monthly; thus altering the original note without their consent, resulting in their being discharged from the original obligation.

The Taines’ only issue on appeal from the final summary judgment is whether the court erred as a matter of law in granting summary judgment to the Bank in view of the terms of the stipulation. The Taines contend they were discharged from liability on the note as a result of (1) the terms of Section 673.606(l)(a), Florida Statutes (1975) and (2) novation.

The Taines assert that Section 673.-606(l)(a) controls, arguing that the Bank’s agreement to withhold action in the litigation so long as Terrell-Brown complied with the terms of the stipulation acted as a suspension of its right to enforce the note against Terrell-Brown, thus discharging them. The operative words in the above section, however, are “without such party’s consent” and “without express reservation of rights. . . .” The original note’s provisions included the following clause:

“The undersigned also agree to any extensions or renewals of this note without further notice, binding the undersigned for payment thereof as if no extensions or forbearance of payment had been made or granted.”

Uniform Commercial Code Comment Number Two to Section 673.606(l)(a) states:

“Consent may be given in advance, and is commonly incorporated in the instrument; or it may be given afterward. It requires no consideration, and operates as a waiver of the consenting party’s right to claim his own discharge.”

Comment Number Four states in part:

“This section retains the right of the holder to release one party, or to postpone his time of payment, while expressly reserving rights against others.”

The Taines having consented to a renewal or extension of the note are in no position now to complain that the agreement to suspend litigation operated as a discharge.

The Taines argue however that the stipulation is more than a mere extension of the note because it involves an agreement to withhold pending litigation between the Bank and other obligors to the note. We do not feel that this is a material distinction. Since the decision to withhold action was entirely dependent upon Terrell-Brown’s compliance with the terms of the extension agreement, we fail to see any resulting prejudice to Taines — assuming that the stipulation was nothing more than an extension note.

The Taines argue additionally that the stipulation drastically altered without their consent the terms of the original note, changing it from a demand note payable no later than one year after execution to an installment note payable in two and one half years, as well as providing a different rate in interest, resulting in a novation and thereby extinguishing the original obligation. If Taines’ position is correct then, of course, they must be discharged. There is no question but that the character of the original note was materially changed. The question then is whether the alteration was such as to result in not merely an extension of the old note, but an extinguishment of it.

A novation is a mutual agreement between the parties concerned for the discharge of a valid existing obligation by the substitution of a new valid obligation. It ordinarily consists of two stipulations, one to extinguish the old debt and the other to substitute a new one in its place. 23 Fla.Jur., Novation, Section 2 (1959). The rule is not satisfied by the substitution of one paper for another or one evidence of a debt for another, but only by the substitution of a new obligation for another with intent to extinguish the old. Murphy v. Green, 102 Fla. 102, 135 So. 531 (1931). One of the circumstances to consider in determining whether a novation occurred is the intention of the parties. Lakeland Silex Brick Company v. Jackson and Church Company, 124 Fla. 347, 168 So. 411 (1936).

It is our opinion that notwithstanding the differences in the character of the two notes there was no such alteration which could reasonably be viewed as extinguishing the original debt. True the method of payment was extended for a longer period of time than was originally agreed. The rate of interest was not variable but was a constant 10% throughout the term of the note. Yet the alteration in the terms of the two notes was no greater than the alteration of certain notes which the Fifth Circuit Court of Appeals in Northwest Acceptance Corp. v. Heinicke Instrument Co., 441 F.2d 887 (5th Cir., 1971), held did not constitute a novation. In the Northwest case, suit was brought by a finance company, Northwest, against a Florida manufacturer, Heinicke, which by contract acted as surety on its customers’ notes which had been discounted to the financing company. The contract provided that Heinicke could sell its customers’ notes and security to Northwest and that Heinicke would endorse or assign the paper to Northwest. It further provided that in ease of default in payment by the customer, Heinicke would repurchase the paper sold upon demand of Northwest. Northwest sued Heinicke following default by a customer. The two original notes given by the customer provided for 8.5% interest and named Heinicke as payee. They also contained standard extension clauses. After the due date of each note, two additional notes were executed by the customer directly to Northwest. Both the additional notes were for a smaller amount than the original notes and both at the rate of 10.5% interest instead of the original 8.5%. The old notes were not cancelled or returned to the maker. The lower court held that these additional notes were not renewal notes since there was both a material change in the indebtedness and the interest rate was raised. Although pursuant to the terms of the contract, Heinicke gave Northwest the power to grant extensions of time, the lower court held that the mere extension of time, as in the case of a renewal note, is substantially different from an extension of time coupled with both a different payee and a higher interest rate, as a result Hein-icke was ordered discharged.

The Fifth Circuit Court of Appeals reversed, holding that the contract in separate assignments between the parties gave Northwest the power not only to grant extensions of time but also to compromise and adjust new rates against Heinickes’ customers and to otherwise handle the making of collections in accordance with Northwest’s business judgment. It also held that Northwest’s acceptance of the renewal notes did not constitute a novation, stating:

“Although there has been general disagreement concerning the effect of a renewal note upon the original, the view in Florida is that a renewal note does not operate as a payment or discharge of the note in renewal of which it is given unless there is an express agreement between the parties to that effect. Cheves v. First National Bank, 79 Fla. 34, 83 So. 870, 872 (1920); Board of Public Instruction v. State, 145 Fla. 482, 199 So. 760 (1941); 4A FlaJur., Bills, Notes § 192. In the Cheves case the vendors, acting through a bank, sold property to the vendees, who executed two $1,000 notes to the bank. Unable to pay one of the notes and in return for an extension of time, the vendees executed a new note for $1,335, which was the principal plus interest due under the first note, and at the same time executed a mortgage in favor of the bank. Although the new note had a different face value, the court held that there could not be a discharge of the original indebtedness or a novation absent express agreement to that effect. In the case sub judice there was no evidence of an express agreement or an intent that the new ReMae notes were to discharge the underlying debt. On the other hand, the new notes were marked on the ledger cards as renewal notes and Northwest retained the original notes — a further indication of intent not to extinguish the underlying obligation.” 441 F.2d at 891.

We simply cannot, based upon this record, accept the Taines’ argument that the stipulation represented an intention by the parties to extinguish the original debt. While the terms of the original obligation were altered, the principal amount remained outstanding. The original note was never cancelled. The stipulation was at most the substitution of one evidence of debt for another without any intent to extinguish the old.

Nor do we feel that the rights of the accommodation endorsers were prejudiced by the conversion of the demand note into a time note. The Taines’ rights to pay off the obligation and become subrogated to the Bank’s interest against Terrell-Brown would be no different had the terms of the demand note been merely extended rather than converted into an installment note. While an accommodation party, if he pays the note, has a right of recourse on the instrument against the party accommodated, nevertheless the holder of either a demand or a time note is not required to accept tender of payment and may elect to exercise his option, if consent to extend the note has previously been given, to enforce the terms of the additional extension. This does not mean that the accommodation party has no remedies. The holder of an instrument, notwithstanding the accommodated party’s consent to extend, may not extend an instrument over the objection of a party who tenders full payment when the instrument is due. Section 673.118(6), Florida Statutes (1975). Thus, had the Taines upon the expiration date of the original obligation, and notwithstanding their prior consent to any extensions or renewals of the note without further notice, made full tender of the balance outstanding, the Bank could not have extended the instrument over the objection of the Taines and the Taines would have been discharged to the extent of all subsequent liability for interest, costs, and attorney’s fees. Section 673.-604(1), Florida Statutes (1975). They would not, however, be discharged from liability on the demand note.

In Benders U.C.C. Service, Hart and Wil-lier, Commercial Paper § 13.21(1) at page 13-50, it is stated:

“An extension may be optional with the holder, meaning technically that he is under no obligation to accept payment when the instrument is initially due. However, this rule is tempered by Sections 3-118(f) and 3-604(1) which state that, if any party tenders payment on the due date, the holder is not obligated to accept, but he will be unable to collect interest, costs, and attorney’s fees subsequent to that time. This means that while an accommodation party may have given his consent in advance to an extension, he may foreclose the holder’s option and preserve immediate recourse against prior parties, including the principal debtor. If he was an accommodation maker or acceptor, his rights would be only against the principal debtor since intervening parties would be discharged. An accommodation endorser preserves his rights against any prior parties, including endorsers prior to himself. In any event, if he does not tender payment, the holder may make the optional extension with impunity and the accommodation party by his consent is deprived of his discharge.” (Emphasis added.)

Thus it is obvious that the rights of the Taines would be the same whether the agreement merely extended the terms of the original demand note, or as here converted the demand note into a time note. Whatever rights they have could only come into effect had they performed the affirmative act of offering payment upon maturity of the original obligation, thus insulating them from any further liability under the terms of the extension agreement and preserving their immediate right of recourse against the party accommodated. Moreover, since the original obligation was not extinguished, the Taines could tender payment even after the note was initially due and be relieved from any further liability. The record shows, however, the Taines made no tender of payment. Therefore, the accommodation parties, by their prior consent, are deprived of discharge.

The final summary judgment is affirmed.

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

      . The note was for the principal sum of $250,-000.00, with interest to be set at l‘/2% above the Chase Manhattan prime rate, but not less than 8% or greater than 15%. It also provided that no individual obligor would be liable for interest in excess of the maximum interest rate allowed to be charged individuals under Florida law, and further provided that the signatories agreed to any extensions or renewals without further notice. The Taines were four of nine individual endorsers on the note.

      . The stipulation provided:
      “1. Bank will withhold further action in this litigation so long as Terrell-Brown complies with the terms hereof.
      2. The undersigned Hugh S. Glickstein is attorney for the defendants, Terrell-Brown & Company, Inc., Robin Brown and Lillian Wade Brown, his wife, and Roger Terrell and Elizabeth Terrell, his wife, and hereby accepts service of the Complaint filed herein on behalf of said defendants.
      3. Terrell-Brown has paid and the Bank has accepted principal payment of $20,000 and interest of $8,039.72 and applied same to Terrell-Brown’s indebtedness described in the Complaint which indebtedness now stands at $180,000 plus interest from December 23, 1974 at 10% per annum.
      4. Terrell-Brown agrees to meet and Bank agrees to accept the following schedule of payments on the indebtedness described in said Complaint:
      (a) Interest at the rate of 10% per annum payable monthly beginning February 1, 1975.
      (b) In addition, principal payments of $20,-000 each shall be made on July 1, 1975, and each calendar quarter thereafter (October 1, January 1, April 1, July 1) until the unpaid balance is paid in full.
      5. Terrell-Brown agrees that it will not institute a defense or counter claim of usury if these proceedings are reopened for any reason.
      6. Bank agrees that it will not, so long as the agreements contained herein are complied with, assess or attempt to collect costs of litigation or attorneys’ fees from Terrell-Brown as provided in the note which is the subject of this litigation. Dated this 15th day of January, 1975.”

      . The Section states:
      “(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder:
      (a) Without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in effecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary; . . .”

      . Notes which are payable on demand include those payable on sight or on presentation and those in which no time for payment is stated. § 673.108, Fla.Stat. (1975). Moreover, presentment of the note is not optional to both the holder and the parties obligated on the instrument. Presentment is a demand for payment made upon the party obligated to the holder. § 673.504, Fla.Stat. (1975).


text:
    August L. BOBENHAUSEN, Appellant, v. CASSAT AVENUE MOBILE HOMES, INC., et al., Appellees.
    No. BB-468.
    District Court of Appeal of Florida, First District.
    April 1, 1977.
    Rehearing Denied April 26, 1977.

      David C. Goodman, Jacksonville, for appellant.
    James N. Watson, Jr. and Donald W. Matthews, Jacksonville, for appellees.
   ERVIN, Judge.

This is an appeal by plaintiff Bobenhau-sen from an order of remittitur reducing a jury verdict of $80,000.00 to $40,000.00. Charles Boucher, the defendant-appellee, is the owner of Cassat Avenue Mobile Homes, Inc. and employed Bobenhausen as sales manager in October, 1973; approximately seven months later Bobenhausen’s employment was terminated. Boucher claims he fired Bobenhausen. Bobenhausen states that he left voluntarily because Boucher was cheating him on his commissions. Sometime later Bobenhausen sought employment with one Gil Sousa, the owner of another mobile home retail sales company. Sousa tentatively agreed to pay Bobenhausen a salary of $1,500.00 per month, plus 3% of the gross income, which was at that time between $300,000.00 and $400,000.00 annually. However, when Sousa sought prior employer references, he was told by Boucher that Bobenhausen was a “thief and a crook” who “stole him blind.” Based upon this information Sousa decided not to employ appellant. Bobenhausen testified that he never heard from several other unnamed prospective employers after being required by them to identify his previous employer. In July, 1974, Bobenhausen purchased Ryle and Company, a mobile home retail company and entered into a financing agreement with Finance America, Inc. He was initially extended $25,000.00 credit for floor plan financing and retail sales financing. He also obtained additional financing through Ryle’s former bank, the Normandy Atlantic. Late in 1974, he attempted to extend his credit at both institutions. The Normandy bank refused such credit without obtaining a character reference and the Finance America Company terminated its business with Bobenhausen after receiving a credit report which stated:

“Prior to purchasing this business, Mr. Bobenhausen was employed with Cassat Avenue Mobile Homes as general manager, but this employer states he was discharged due to his stealing from the company.”

Bobenhausen then brought an action for slander alleging that his name and reputation had been injured by Boucher’s statements, seeking both compensatory and punitive damages. The Bouchers counterclaimed alleging that Bobenhausen made misrepresentations on their contracts by listing items of extra equipment such as air conditioners which were not installed in mobile homes, to their damage.

At the conclusion of the trial the jury returned a verdict in favor of Bobenhausen for $30,000.00 compensatory damages and $50,000.00 punitive damages. The Bouchers filed a motion for new trial alleging, inter alia, that the verdict was excessive both as to compensatory and punitive damages since there was a lack of competent evidence submitted to the jury to support the verdict and that the verdict could only be arrived at through conjecture or passion. The court thereupon entered its order of remittitur in the amount of $40,000.00.

The Bouchers argue that there must be some reasonable relationship between proof of the amount of compensatory damages to the amount of punitive damages and where compensatory damages are not clearly and fully shown so as to be ascertained with reasonable certainty, a judgment on a verdict in excess of the damages properly recoverable will be reversed for a new trial, citing Florida East Coast R. Co. v. Peters, 71 Fla. 411, 83 So. 559 (1919), and Hutchinson v. Lott, 110 So.2d 442 (Fla. 1st DCA 1959). They rely upon Hutchinson for the rule that punitive damages may not be awarded unless actual damages are shown.

In determining the types of compensatory damages recoverable in a defamation suit, Florida law recognizes two classes: general and special. General damages are those which the law presumes must naturally, proximately and necessarily result from publication of the libel or slander. They are allowable whenever the immediate result is to impair the plaintiff’s reputation, although no actual pecuniary loss is demonstrated. 20 Fla.Jur. Libel and Slander sections 6, 88. Words which are actionable in themselves, or per se, necessarily import general damages and need not be pleaded or proved but are conclusively presumed to result. Moreover malice is presumed as a matter of law from the publication of such words. Ibid.

Special damages do not result by implication of law from a wrongful publication and, unlike general damages, must be specially pled. It is necessary for a plaintiff to show his special damages proximately resulted from the defamation. Ibid, at section 111.

Spoken words falsely imputing a criminal offense to another are actionable per se. E. g., Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906); Tip Top Grocery Co. v. Wellner, 135 Fla. 518, 186 So. 219 (1938). Clearly then the statement made by Boucher to another that Bobenhausen was a “thief and a crook” who “stole him blind” was slander per se, if false. The jury has concluded that question to the Bouchers’ detriment and there is no issue before us that it was not false.

Aside from the issue of whether special damages were established with reasonable certainty, we are of the view that since the plaintiff established by the greater weight of the evidence the Bouchers’ statements were (1) false and (2) actionable per se, he need not show any proof of monetary loss to be entitled to recover punitive damages.

In the case below, Bobenhausen, as did Mrs. Firestone in Firestone v. Time, Inc., 305 So.2d 172 (Fla.1974), stated in his complaint that his reputation had been damaged as a result of the defamations. In Time, the Court held that words which falsely accuse a woman of adultery are libelous per se and that a plaintiff need not allege or prove general or special damages. As Justice Powell observed in his majority opinion in Gertz v. Welch, 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974):

“Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof such harm actually occurred.”

Continuing at 418 U.S. at 350, 94 S.Ct. at 3012:

“Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation and mental anguish and suffering.”

We reject the Bouchers’ argument that it is necessary before a plaintiff recover punitive damages that the amount of pecuniary loss be determined to a reasonable certainty. The general rule is that in libel actions, even though no special damages may have been proven, a plaintiff may still recover punitive damages upon a showing that the publication was made for malice or ill-will toward him. 20 Fla.Jur. Libel and Slander section 90. The Third District Court of Appeal has recently held that where a defamation is actionable per se, punitive damages may be awarded even though the amount of actual damages is not shown, for in such situations the requirement of a showing of actual damages is satisfied by the presumption of injury which arises merely from a showing of such defamation. Saunders Hardware Five and Ten, Inc. v. Low, 307 So.2d 893 (Fla. 3rd DCA 1974).

In Hutchinson v. Lott, supra, a judgment for $115.00 compensatory damages and $5,000.00 punitive damages based upon an action for assault was reversed. This court stated that in all actions for tort the jury is authorized to inflict punitive damages where (1) actual or compensatory damages are shown, and (2) malice, moral turpitude, wantonness or outrageousness accompanies the wrong committed. The opinion continued that while punitive damages may not be recovered unless actual damages are shown, the relationship of punitive damages to actual damages cannot be reduced to a mathematical certainty and is dependent upon the facts of each case. We feel the language employed by this court in Hutchinson is much too broad and is inapplicable to libel and slander cases which may be actionable per se. We specifically recede from any language in Hutchinson which suggests that in a per se defamation action, actual damages must be shown as a condition precedent to the recovery of punitive damages.

Since we are of the opinion that punitive damages may be awarded independent of proof of compensatory damages, the only question remaining is whether the aggravated damages awarded in the verdict were excessive. The answer depends upon (1) whether Bobenhausen adequately established malice resulting from the publication and (2) whether he adequately established special damages to support the amount of punitive damages returned by the jury. The purpose of punitive damages is not to compensate but only to serve as a deterrent to others inclined to commit a similar offense. They are characterized as an allowance for malice, moral turpitude, wantonness, or outrageousness in the commission of the tort. Moreover the amount of compensation for libel or slander may be affected by the circumstances in which the defamation was published, for example a repetition by the defendant of the slander may be considered as aggravating the damages. Thus if the language used is disproportionately abusive and runs into expressions libelous in nature, a verdict for aggravated damages may be justified. Jones and Brother v. Greeley, 25 Fla. 629, 6 So. 448 (1889).

Bobenhausen introduced testimony from several witnesses who stated that Boucher informed them that he had fired Bobenhausen because he was a thief, a liar and a cheat. The defendant himself admitted he had advised several persons involved in commercial financing that Bobenhausen had been discharged by him because Boben-hausen was a thief. A subsequent publication of libel with knowledge of its falsity is proof of malice and may be introduced to show malice. Morgan v. Dunn and Bradstreet, 421 F.2d 1241 (5th Cir. 1970).

In addition to general damages, we are of the view that special damages were established by Bobenhausen to a reasonable certainty. In Speight v. Kirby, 204 So.2d 543 (Fla. 1st DCA 1967), this court affirmed a verdict in favor of plaintiff in the amount of $2,500.00 compensatory damages and $2,000.00 punitive damages. Appellee Kirby, a real estate broker, presented evidence that Speight, a rival broker, wrote several libelous letters to the Federal Housing Administration accusing him of fraud, violations of FHA regulations and unethical business deals. His complaint for damages alleged that his business income had been reduced and his reputation damaged. Speight argued that the trial court erred in allowing certain alleged speculative testimony as to future loss of profits to be admitted into evidence. This court responded:

“We find no substantial merit in the contention that speculative losses were allowed to be shown. In this case there was a definite showing of reduction of income from the source attacked by the appellant and we think it was properly before the jury as an element of damages to be considered.” Id. at 544.

Bobenhausen establishes his claim for special damages upon two circumstances: (1) the loss of his job as general sales manager with Mr. Gil Sousa, and (2) the loss of three to four mobile home sales per month due to cancellation of credit by the Finance America Company. Mr. Sousa clearly stated that but for the information received from Boucher he would have employed Bo-benhausen. The testimony was uncontra-dicted from both Bobenhausen and Sousa that they had entered into an agreement that Bobenhausen would be employed at the sum of $1,500.00 per month plus 3% of the gross sales of Sousa’s business which at the time were from $300,000.00 to $400,-000.00 annually.

As a result of his failure to obtain an extension of credit, Bobenhausen testified that each lost mobile home sale cost him an average of $1,200.00 and that he was still losing three to four sales per month. It is our opinion based upon the rationale of Speight v. Kirby, supra, that the evidence relating to loss of future profits was established with reasonable certainty.

The courts have uniformly held that the relationship of punitive damages to actual damages cannot be reduced to a mathematical certainty. Hutchinson v. Lott, supra; Lan-Chile Airlines, Inc. v. Rodriguez, 296 So.2d 498 (Fla. 3rd DCA 1974). Illustrative eases include Lan-Chile Airlines v. Rodriquez, supra, in which a verdict awarding $2,500.00 compensatory damages and $110,-000.00 punitive damages was reduced to $2,500.00 compensatory damages plus $25,-000.00 punitive damages, or in the alternative, that the case be remanded for a new trial on the issue of punitive damages. Thus a ratio of ten to one punitive damages was impliedly approved by the court. In Miami Herald Publishing Company v. Brau tigam, 127 So.2d 718 (Fla. 3rd DCA 1961), an award of $25,000.00 compensatory damages was held sufficient to justify $75,-000.00 punitive damages. In Airline Employees Ass’n. Internat’l. v. Turner, 291 So.2d 670 (Fla. 3rd DCA 1974), an award of $175,000.00 punitive damages based on $3,000.00 compensatory damages was reduced to $30,000.00 punitive damages, or a ten to one ratio.

There is no question but that a trial judge may in his discretion review a jury’s verdict when he feels the verdict is excessive, contrary to the evidence heard at trial and shocks the conscience of the court. Wheeler v. Nelson, 229 So.2d 11 (Fla. 2nd DCA 1969). We are aware that an order of the trial judge granting a remittitur is discretionary and may not be set aside on appeal unless an abuse of discretion is shown. E. g., Brewer v. Sun Ray Drug Co. of Florida, 105 So.2d 369 (Fla. 2nd DCA 1958); Price v. Jordan, 115 So.2d 444 (Fla. 2nd DCA 1959). Nevertheless we feel the rule stated by the Florida Supreme Court in Smith v. Jackson County, 134 Fla. 354, 183 So. 738 (1938), concerning the power of trial courts to order remittiturs is determinative here:

“The rule, however, is now well established that the power of the court to permit or require the entry of a remittitur should only be exercised in cases where the amount of excess is apparent or is readily ascertainable. Dodds v. Roane, 36 Ark. 511; Lary v. Lewis, 76 Ga. 46; Tucker v. Hyatt, 151 Ind. 332, 51 N.E. 469, 44 L.R.A. 129; Whitehead v. Kennedy, 69 N.Y. 462.
* * * * * *
In the instant case it appears that the evidence was conflicting; that there was substantial evidence to support a verdict for a great deal larger amount than that which was awarded by the jury and it appears that the trial court attempted to substitute its own judgment for that of the jury, without it appearing that the jury was influenced by prejudiced, biased, or other improper influences. The record shows that the parties had a fair and impartial trial and that the jury was amply warranted by the evidence in returning the verdict which it did return in this case.
(4) It is with great reluctance that the writer declines to approve the action of a conscientious and able trial judge but there is a province in which judges have the supreme responsibility and likewise, there is a province occupied by juries which judges are not authorized to invade. To warrant a trial judge in setting aside a verdict and granting a new trial, there must be a reason in law for that action. Otherwise, the judge in taking such action invades the province of the jury and departs from the salutary well established principles of American Jurisprudence.” 183 So. at 739.

The order of remittitur is reversed with directions that the trial court enter judgment for the amounts returned in the jury’s verdict.

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

      . This opinion was later vacated and remanded by the United States Supreme Court on the ground that there was no showing of fault on the part of Time in publishing the article. The court, reiterated the rule stated in Gertz v. Welch, Inc., infra, that in actions for defamation against publishers and broadcasters, the competing First Amendment right of freedom of the press is superior to that of a litigant’s right to damages for libel when he has failed to establish fault of the publisher. Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1975).

      . It should be noted that in Firestone v. Time, Inc., the Florida Supreme Court sustained a verdict of $100,000.00 general damages against Time where the only proof of injury to plaintiff was based upon mental pain and anguish. All claims as to injury to reputation were withdrawn prior to trial. Time, Inc. v. Firestone, 424 U.S. at 475, 96 S.Ct. 958 (Brennan, J., dissenting.)

      . This court has approved the rule stated in Low since it reversed a judgment in favor of defendant Bank based upon an action for slander of credit and specifically quoted the rule above stated, holding that it was error for the trial court to instruct the jury that it could not award punitive damages unless an award of compensatory damages was made. Matthews v. Deland State Bank, 334 So.2d 164 (Fla. 1st DCA 1976).


author: HOBSON, Judge.

text:
    George Lee TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 75-1730.
    District Court of Appeal of Florida, Second District.
    April 1, 1977.
    Rehearing Denied April 20, 1977.

      Jack T. Edmund, of Edmund & Wilkins, Bartow, for appellant.
    Robert-L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

In this case defendant/appellant challenges the denial of his motion for discharge pursuant to the Speedy Trial Rule, Fla.R.Crim.P. 3.191, made prior to his conviction for second-degree murder.

Appellant was arrested for first-degree murder on January 11, 1974. Following a preliminary hearing appellant was bound over for trial on the charge of second-degree murder. On February 4th appellant was indicted for first-degree murder. Appellant filed a motion to dismiss the indictment alleging there was no evidence upon which to base an indictment. Despite the state’s opposition, the motion to dismiss the indictment was granted on March 24, 1974. The state took a timely appeal which resulted in this court reversing the trial court in an opinion rendered on September 30, 1974. This court’s mandate was issued on November 6, 1974. The state made no motion requesting the tolling of the speedy trial time prior to taking the appeal.

On November 22, 1974 appellant moved for discharge under Fla.R.Crim.P. 3.191 alleging his arrest on January 11, the state’s failure to toll the time during the pendency of its appeal, no order was entered tolling the same, and that the time for trying him had run on July 12, 1974. The trial court decided that the appellate proceeding tolled the running of the rule until the mandate of this court was issued and denied the motion for discharge. Appellant was subsequently tried, found guilty of second-degree murder, and sentenced to five years imprisonment. Appellant then brought this appeal with his sole point being that the trial court erred in denying his motion for discharge.

Important to the determination of this case are two issues which can be stated alternatively as follows:

1) Whether the time for trying an accused under Fla.R.Crim.P. 3.191 is automatically stayed pending appeal by the state of a dismissal or indictment pursuant to Fla.R.Crim.P. 3.191(g); or
2) Whether the time for trying an accused under Fla.R.Crim.P. 3.191 can be stayed pending appeal by the state of a dismissal of indictment under Fla.R. Crim.P. 3.191(d)(2)(iv) providing the state files a motion for stay at the trial level prior to taking the appeal.

Implicit in defining these important issues is the possibility that Fla.R.Crim.P. 3.191 does not speak to any tolling of time periods where the state appeals the dismissal of an indictment and therefore no stay, automatic or otherwise, is available. We tentatively reject this latter view since it would be directly contrary to the spirit and intent of the rule as we have heretofore interpreted it. Cf. State v. Glidewell, 311 So.2d 126 (Fla.2d DCA 1975); State v. Vinson, 294 So.2d 418 (Fla.2d DCA 1974); State v. Williams, 287 So.2d 415 (Fla.2d DCA 1973).

The starting point for resolution of the issue herein is Fla.R.Crim.P. 3.191 which has no specific provision for tolling, automatic or otherwise, the applicable 180-day period of time during the pendency of an appeal by the state of an order dismissing an indictment. Nor do any Florida statutes expressly provide for an automatic or other type of stay during the time an appeal is taken in such a situation. However, prior cases before this court have dealt with this issue under two provisions of the Speedy Trial Rule. Compare Vinson, supra, and Glidewell, supra.

In Vinson the state filed an appeal from an order dismissing an information. Prior to taking this appeal the state moved unsuccessfully for an extension of time under the Speedy Trial Rule pending the appeal. Judge Grimes, in denying a similar motion for extension before this court, stated,

“In analogous situations, Rule 3.191(g), CrPR, 33 F.S.A., provides for an automatic ninety-day extension. If the question were squarely presented to us, we would construe the rule [3.191(g)] to encompass the reversal of an order dismissing an information. Cf. State ex rel. Sheppard v. Duval, Fla.App.3d, 1973, 287 So.2d 370. In State v. Williams, Fla.App.2d, 1973, 287 So.2d 415, we suggested that until such time as the wording of the rule was settled, prosecutors might wish to move for an extension of time pending the outcome of the appeal.”

294 So.2d at 419.

In the earlier case of Williams, supra, Judge Grimes explained his reliance on subsection (g) of Fla.R.Crim.P. 3.191. He posited,

“If read literally, this subsection would appear to have no application even to those situations where an order dismissing an information has been overturned on appeal, because there has never been a ‘trial.’ On the other hand, there is no specific provision in the Rule for a first trial after reversal of an order dismissing an information. Therefore, it would be logical to assume that the Supreme Court intended for the 90 day period specified in CrPR 3.191(g) to apply to a trial under those circumstances.” (footnote omitted)

287 So.2d at 419. Judge Grimes adhered to this position in Vinson, although he found it unnecessary to apply it to the facts there.

More recently this court has again been confronted with the problem of extensions of time under the Speedy Trial Rule when the state appeals a dismissal of information or indictment. In Glidewell, supra, Judge Boardman noted that the state had filed two motions at the trial court level for extensions pending appeal to this court. Both motions were denied. Relying on a different subsection of Rule 3.191, specifically subsection (d)(2)(iv), Judge Boardman asserted that the delay [appeal] caused by defendant’s motion to dismiss should not be charged against the state. He stated further,

“In State v. Vinson, Fla.App.2d, 1974, 294 So.2d 418, this court suggested that the state file a motion in the lower court for an extension in such circumstances. The state followed this advice. If a defendant prevails on a motion to dismiss, the state has no choice but to appeal if it feels that the trial judge was wrong in dismissing. If it ultimately appears that the trial judge ruled incorrectly and the appellate court reverses the case, it would seem grossly unfair and unreasonable to charge the state with the time taken to prosecute the appeal which would, in many cases, extend beyond the time in the speedy trial rule and prevent a trial.”

311 So.2d at 127-28.

In the case sub judice the state, pri- or to taking the appeal from the order granting dismissal of the indictment, made no motion for extension of time pending appeal as suggested by this court’s decisions in Williams, Vinson, and Glidewell, supra. Although Glidewell seems to require such a motion by the state when the latter intends to rely on subsection (d)(2)(iv) following reversal of an order dismissing an indictment, the automatic 90-day extension granted the state under subsection (g) in a similar situation does not. Such a result is not inconsistent with the decisions in Williams or Vinson as they admonish prosecutors to move for such extensions wherever it appears that a pending appeal from an order of dismissal will not be decided until the time for trial has expired. These admonitions were given primarily as a result of the uncertainty rather than a prerequisite under subsection (g). It should be noted, however, that where motions are made by the state prior to the appeal, then resort to either subsection (d)(2)(iv) or subsection (g) may be in order.

Since we hold that no motion was necessary to grant the automatic extension under Rule 3.191(g), then we must turn to facts herein to see if appellant was brought to trial within the applicable time limits granted under that extension. The record shows that the mandate from this court was issued on November 6, 1974, and received by the trial court on November 7, 1974. Therefore, given the 90-day extension granted herein, the state had until February 7, 1975 to try the appellant.

On or about January 20, 1975, one day prior to the date set for trial, appellant' moved for a continuance, asserting that a certain witness, upon which he relied for a defense, had not been served. Although no order reflects the specific granting of this continuance, it is apparent from the papers filed in the record that it was granted and trial re-set for April 22, 1975. Assuming that this continuance was unexcused, and thereby chargeable to appellant, the state had until April 22, or approximately 90 additional days under Rule 3.191(d)(3) to bring appellant to trial.

However, between April 30 and May 1 the state filed a motion to hold a material witness to bail, said motion reflecting the need for the witness’ presence and his willful refusal to appear on April 22. The trial court granted this motion by order dated April 30 and filed May 1, 1975. Thereafter appellant’s trial began on May 12, 1975.

In affirming the judgment and sentence below we are mindful that more than a one year and five months elapsed from the time of the appellant’s arrest and the first day of trial. Some of that time was, as noted herein, properly chargeable to the appellant. However, part of that time may be attributed to the confusion arising out of the rule itself. For those reasons and the reasons cited herein, we hereby certify to the Supreme Court of Florida, pursuant to Article V, § 4(b) of the Constitution of the State of Florida, that the decision of this court in this cause “passes upon a question of great public interest” in that a gap exists in Fla.R.Crim.P. 3.191 which jeopardizes the effective administration of this rule. This uncertainty, which arises when the state appeals, prior to trial, an order dismissing an indictment or information, has caused and is likely to cause further prejudice to litigants on both sides of the question. Cf. Vinson, supra, and Glidewell, supra.

' Therefore, the judgment and sentence below is affirmed and the decision in this cause is hereby certified to the Supreme Court for determination of the questions presented herein with respect to Rule 3.191.

BOARDMAN, C. J., and McNULTY, J., concur.

      . State v. Tucker, 301 So.2d 501 (Fla.2d DCA 1974).

      . The state asserts that § 924.071(2), Fla. Stat.(1973) allows an automatic stay from any further action by the trial court during the pendency of an appeal by the state of any pretrial order. Although that statute does allow automatic extensions where appeals are taken from pretrial orders dismissing a search warrant, suppressing evidence, and suppressing a confession or admission, nowhere in the statute is an appeal from an order dismissing an indictment specifically mentioned nor has the state cited authority for automatic extensions in such situations. We hold that § 924.-071(2), allows automatic extensions during the pendency of appeals from the specific pretrial orders enumerated in the statute and noted above.

      . See Fla.R.Crim.P. 3.191(d)(2)(iv) and 3.191(g).

      . In State v. Glidewell, 311 So.2d 126, 129 (Fla.2d DCA 1975) Judge Grimes in a special concurring opinion declared,
      “While I agree that where the order sustaining defendant’s motion to dismiss is reversed on appeal the delay consequent upon the filing of the motion is a proper ground for extension under Rule 3.191(d)(2)(iv), a similar result could be reached by construing Rule 3.191(g), RCrP, to encompass the reversal of an order dismissing an information.”

      . Appellant does not contend any error with respect to the provisions of the Speedy Trial Rule due to the postponement of trial from April 22 to May 12. Were such a contention raised we would have little difficulty in justifying this extension under Rule 3.191(f)(iii). This witness’ recalcitrance cannot be charged to the state or to the defendant.


author: PER CURIAM.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Sylvia FRIEDMAN and Milton Friedman, her husband, Appellees.
    No. 76-688.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and A. H. Toothman, Miami, for appellant.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rodgers, Miami, for appellees.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed on the authority of Arrieta v. Volkswagon Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977). See also: Salas v. Liberty Mutual Fire Insurance Co., 272 So.2d 1 (Fla.1972); Government Employees Insurance Co. v. Farmer, 330 So.2d 236 (Fla. 1st DCA 1976).


text:
    Juan AVILES, Appellant, v. The STATE of Florida, Appellee.
    No. 76-770.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellant seeks reversal of a judgment of conviction based .upon a jury verdict finding his guilty of robbery.

We have carefully reviewed the record on appeal, considered all points set forth in the briefs and have concluded that no reversible error has been made to appear. Therefore, the judgment appealed is affirmed.

Affirmed.


text:
    URBAN VENTURES, INC., a Florida Corporation and Economic Enterprises, Inc., a Florida Corporation, Appellants, v. FERENDINO, GRAFTON, SPILLIS, CANDELLA, ARCHITECTS, ENGINEERS, PLANNERS, INC., a Florida Corporation, Appellee.
    No. 76-1355.
    District Court of Appeal of Florida, Third District.
    April 5, 1977.
    Harold C. Culmer, Miami, for appellants.
    Frishman & Clyman, Coral Gables, for appellee.
    Before HENDRY, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

This appeal questions the correctness of a summary final judgment in favor of the appellee, Ferendino, Grafton, Spillis, Candela, Architects, Engineers, Planners, Inc., in an action for damages arising out of a written agreement for architectural services between appellant Economic Enterprises, Inc., and appellee.

The record on appeal discloses that there are many genuine issues of material fact that have not been eliminated by the appellee. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Peoples Gas System, Inc. v. B & P Restaurant Corp., 271 So.2d 804 (Fla. 3d DCA 1973). For instance, two of the triable issues are the liability of Urban Ventures, Inc., and the amount of damages assessable against either or both of the appellants.

The summary judgment is therefore, reversed and remanded to the trial court for further proceedings.

Reversed and remanded.