text:
    CITY OF WINTER HAVEN, a Municipal Corporation, for the Use and Benefit of John K. LASTINGER, d/b/a John K. Lastinger & Sons, Appellant, v. TUTTLE/WHITE CONSTRUCTORS, INC., Lecanto Construction Company, Inc., d/b/a Crystal Construction Company, and Federal Insurance Company, Appellees.
    No. 78-1629.
    District Court of Appeal of Florida, Second District.
    May 4, 1979.

      Kenneth L. Connor, of Gibson & Connor, Lake Wales, and James M. Weaver, of Weaver & White, Lake Wales, for appellant.
    James F. Page, Jr., of Gray, Adams, Harris & Robinson, Orlando, for appellees.
   DANAHY, Judge.

Four months after appellant obtained a final judgment against them pursuant to a jury verdict, appellees requested a new trial by motion under Fla.R.Civ.P. 1.540(b) on grounds of newly discovered evidence. The request was granted and this appeal followed. We hold that the new trial should not have been granted because the evidence in question is not material to the issues in this case.

Appellant (Lastinger) was a sub-subcontractor for the site work on a construction project. Appellees are Lastinger’s subcontractor (Crystal), the general contractor, and the surety on the general contractor’s payment and performance bond.

Lastinger commenced the site work and continued working until he was terminated by Crystal three months later. He brought this suit for damages as a result of that termination, claiming a right of recovery for breach of contract, unjust enrichment, fraud, and on quantum meruit. He voluntarily dismissed the breach of contract count before trial. The trial, therefore, commenced on the unjust enrichment, fraud, and quantum meruit claims.

Despite its irrelevance to these remaining claims, the subject of the reason for Las-tinger’s termination on the job was introduced by counsel for Lastinger in his opening statement. Specifically, he said the evidence would show that Crystal terminated Lastinger because of Lastinger’s failure to prosecute the work, but the evidence would further show that Lastinger’s failure to prosecute the work “was because his fuel supplier wouldn’t furnish him any more fuel, because he couldn’t pay, because Crystal Construction Company had not paid him.” Lastinger testified to this effect on direct examination.

At the close of Lastinger’s case, the trial judge directed a verdict against him on the fraud and unjust enrichment counts. Accordingly, the case went to the jury solely on the quantum meruit count. There was no dispute that Lastinger was entitled to some amount of money; the only issue was how much. Nevertheless, in his closing argument, counsel for Lastinger repeatedly referred to the ostensible reason why Las-tinger stopped his work; that he could not pay his fuel bill because Crystal had not paid him. In these references, counsel characterized Crystal as having squeezed and choked Lastinger, as having attempted to destroy Lastinger, as having been guilty of highhanded construction practices, and as having deliberately taken advantage of Lastinger’s cash flow problems.

The newly discovered evidence which formed the basis of appellees’ request for a new trial under Rule 1.540(b) was evidence that Lastinger’s accountant had misappropriated a substantial amount of funds which Crystal had paid to Lastinger pursuant to the subcontract. Appellees assert that this evidence is extremely significant to the case because it would show that the accountant’s diversion of the money was the reason why Lastinger could not pay his fuel bill, rather than Crystal’s failure to pay Lastinger. Thus, appellees say, the newly discovered evidence would probably have changed the jury’s verdict because it would have prevented the unfavorable characterization of Crystal indulged in by counsel for Lastinger in his closing argument. Appellees argue that, therefore, this newly discovered evidence meets all the requirements listed in Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla.3d DCA 1961), for the granting of a new trial based on newly discovered evidence. As stated in that case:

[The] requirements for the granting of a new trial on the ground of newly discovered evidence are (1) that it must appear that the evidence is such as will probably change the result if the new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue[s]; and (5) that it is not merely cumulative or impeaching. (Citations omitted)

Rule 1.540(b) allows relief from judgment to be granted for any of five specific reasons. One of these is “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.” A motion for relief from judgment on grounds of newly discovered evidence must be made within a reasonable time and not more than one year after the judgment was entered. A motion for a new trial under Rule 1.530, on the other hand, must be served not later than 10 days after the rendition of the verdict in a jury action.

Appellant vigorously argues that appel-lees’ newly discovered evidence meets none of the requirements listed in Dade National Bank of Miami v. Kay, supra. We need only address the most obvious deficiency, lack of materiality to the issues.

Material evidence is evidence which is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case. Black’s Law Dictionary 1128 (4th ed. 1951). We fail to see how, under any stretch of the imagination, the defalcation of Lastinger’s accountant has any relation to or bearing upon the one question the jury had to resolve in this case, which was the value of the services rendered by Lastinger on the construction site. The accountant did not testify during the trial nor did he prepare any documentary evidence admitted at trial.

Appellees argue that Crystal’s alleged mistreatment of Lastinger was made a central issue in the trial by his counsel. Evidence of the accountant’s theft is material to the case, they say, because it would eliminate that issue.

But that issue was a false issue, and its falseness was not produced by the fact that the evidence pertaining to the issue (Lastinger’s testimony) was erroneous and could be overcome by the newly discovered evidence. The issue was false from the beginning because it was irrelevant (and possibly prejudicial). Its presence in the trial must be attacked on that basis, not on the basis that its premise can be proven untrue. The issues to which newly discovered evidence must be material are the real issues in the case, not issues improperly injected.

A motion for relief from judgment under Rule 1.540 may not be used to overturn a jury verdict rendered on the basis of an improperly considered issue. The rule was intended to provide relief from judgment under a limited set of circumstances. It was not intended to serve as a substitute for the new trial mechanism prescribed by Rule 1.530 or as a substitute for appellate review. Fibre Crete Homes, Inc. v. Division of Admn., Dept. of Tr., 315 So.2d 492 (Fla.4th DCA 1975). The introduction of an irrelevant issue and improper comment in closing argument on that issue may afford grounds for reversal on appeal, assuming the point is properly preserved for appellate review. If so, an appeal must be pursued. The situation cannot be corrected by the ordering of a retrial under Rule 1.540. Hall v. American Distributing Corp., 181 So.2d 711 (Fla.3d DCA 1966).

Reversed.

OTT, Acting C. J., and RYDER, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Louise Maggie Ruth YOUNG, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-1782, 78-1783 and 78-1784.
    District Court of Appeal of Florida, Second District.
    May 4, 1979.

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

After careful review, we affirm the revocation of appellant’s probation and her subsequent conviction. However, we agree with her that there are imperfections in the revocation order and in the judgment and sentence which necessitate a remand for correction.

Among the violations of probation with which appellant was charged were two concerning the failure to make payments as required by the terms of probation. The court found appellant guilty of these two violations, but it should not have done so since it did not make a finding that appellant had the ability to make the payments. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979). Accordingly the court should now remove any reference to these violations from the revocation order.

At sentencing, the court ordered appellant to serve a fifteen-year prison term in case number 76-7348, a five-year prison term in case number 76-7349, and a fifteen-year prison term in case number 76-7350. However, the written judgments and sentences and the uniform custody papers reverse the terms imposed in 76-7349 and 76-7350. Consequently, the court must alter these documents so that they conform to its oral pronouncements.

HOBSON, Acting C. J., and SCHEB and OTT, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Desmond G. JUDGE, Appellant, v. Janet A. JUDGE, Appellee.
    No. 78-1801.
    District Court of Appeal of Florida, Second District.
    May 4, 1979.

      Stephen D. Hughes, Largo, for appellant.
    Wayne 0. Smith, of Wallace & Smith, P. A., St. Petersburg, for appellee.
   GRIMES, Chief Judge.

The only substantial assets of the parties to this dissolution proceeding were a home in Largo and a beach house, both of which were held in tenancy by the entireties. The court awarded the home to the wife as lump sum alimony and directed the beach house to be sold and the net proceeds from the sale divided between the parties.

The award of the home as lump sum alimony cannot stand because there was no showing of positive necessity on the wife’s part. Meridith v. Meridith, 366 So.2d 425 (Fla.1978). This award is vacated with directions to the trial court to grant the wife, so long as she remains unmarried, the use and occupancy of the marital home until the parties’ children in her custody reach their majority. Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975). Keeping in mind the other portions of the judgment, the court should make such provisions for the payment of the mortgage, insurance, taxes and related expenses as may be equitable. See Fraser v. Fraser, 368 So.2d 97 (Fla. 3d DCA 1979).

The order directing the sale of the beach house suffers from the same defects as the one in Carlsen v. Carlsen, 346 So.2d 132 (Fla. 2d DCA 1977). As in Carlsen, this order is stricken. The cause is remanded for entry of an amended final judgment setting a reasonable period of time for the parties to conclude private arrangements for the sale of the beach house subject to the approval of the court but providing that if the disposition of the property is not amicably resolved within such time, partition and sale should proceed according to Section 64.061 et seq., Florida Statutes (1977).

The award of attorney’s fees is hereby set aside as void for lack of jurisdiction because it was entered after appellant filed the notice of appeal. Wilson Realty, Inc. v. David, No. 78-917 (Fla. 2d DCA, filed February 16, 1979).

The remaining provisions of the judgment of dissolution including the award of permanent alimony are hereby affirmed.

SCHEB and DANAHY, JJ., concur.


text:
    Beda C. SUPPLE, Appellant, v. John Michael SUPPLE, Appellee.
    No. 78-795.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Rehearing Denied June 1, 1979.

      Armando Mariaio, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Sylvester P. Adair, Homestead, for appel-lee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

This appeal warrants a brief prefatory statement, as it is the second appearance of the cause before this court. In the original action the plaintiff/appellant, mother of the appellee, had sought to cancel a deed to land in Dade County which she had given her son; the subject deed had ostensibly created a joint tenancy with the right of survivorship. The trial court denied the prayer for rescission and instead entered a judgment that the son should pay a specified amount to his mother each month as support. Since each party was dissatisfied, the mother appealed and the son cross-appealed. This court reversed and remanded with directions to the trial court to determine whether there had been a failure of consideration for the conveyance and to determine the interest, if any, of the son in the real property. In reversing, this court did so without prejudice and with the right of the trial court to take further testimony if it deemed it necessary, and to enter a final judgment based upon the issues presented by the complaint and answer. Upon the receipt of the mandate, the trial court entered an order setting aside the judgment appealed and the cause was set for the taking of further testimony. Ultimately, the trial court (1) denied the prayer for rescission and (2) modified and reformed the subject deed from a joint tenancy with right of survivorship to a tenancy in common, that is, an undivided one-half interest in each party. The appellant/plaintiff herein asserts error by the trial court contending that it failed to carry out the mandate of this court where it appears from the testimony and evidence adduced that there had been a failure of consideration for the conveyance. Additionally, the appellee cross-appeals and urges this court to reinstate the joint tenancy with right of surviv-orship. We cannot agree with either party’s assertions and we affirm the final judgment.

In the instant final judgment, the trial court made the following findings of fact upon which it based its decision:

“1. That the parties hereto are mother and son who presently hold title to certain real property as joint tenants by virtue of a deed dated July 31, 1972; rescission of which deed is sought herein by the Plaintiff/Mother.
“2. That title to said property was previously held by the Plaintiffs, BEDA C. SUPPLE and JOHN SUPPLE, her husband (now deceased) as tenants by the entireties.
“3. That subsequent to the death of Plaintiff’s husband, JOHN SUPPLE, the Plaintiff herein instructed her attorney' to transfer title from her name to the name of her son and herself, which was accomplished by means of a deed to Plaintiff’s attorney as a conduit and thence the subject deed of conveyance herein sought to be vacated.
“4. That lack of consideration is the basis for Plaintiff’s seeking rescission together with fraud in the procurement of said conveyance by the making of unfulfilled promises by Defendant to support Plaintiff.
“5. That Plaintiff, her husband (now deceased) and Defendant/Son worked together in a family owned appliance repair business which increased in size through the joint efforts of all three members; the ultimate planning being to occupy the subject premises by the repair and retail business.
“6. That the Defendant/Son undertook to complete the building which was abandoned by the contractor and assumed a leading role in doing so upon the death of his father, and the family business subsequently occupied the premises.
“7. That natural love and affection existed between Plaintiff and Defendant at the time of the conveyance herein sought to be rescinded, and it is clear to this Court that this was as much a consideration for said conveyance as any promise by Defendant to support Plaintiff and that only because of subsequent ill-feelings between Plaintiff and her daughter-in-law (Defendant’s wife) was there a dissatisfaction on the part of Plaintiff with the conveyance.
“8. That plaintiff’s real intention was to convey an undivided one-half interest in the subject property to Defendant/Son as expressed by Plaintiff in response to a question by the Court.
“9. That all mortgage payments were made by the Plaintiff from monies earned by the parties’ joint business efforts.”

The record does indeed support the trial court’s findings and ultimate decision. Extensive testimony was elicited from all persons involved in this unfortunate family dispute, and the results reached by the lower tribunal are consistent with the prior mandate of this court, the expressed intentions of the parties and the principles of law and equity applicable to the facts. See, Rennolds v. Rennolds, 312 So.2d 538 (Fla. 2d DCA 1975), (rescission based on fraud, accident or mistake only), and Section 689.15, Florida Statutes (1941). In the case sub judice rescission is unwarranted, love and affection was valid consideration for the conveyance from mother to son, and the appellee clearly has provided for and continues to provide a source of support for appellant from the corporate income.

Affirmed.

      . See, 347 So.2d 774 (Fla. 3d DCA 1977).

      . The deed was to land upon which the family appliance sale and repair business is conducted by the appellee-son.

      .Case number 76-1293.


author: HENDRY, Judge.

text:
    Roberto HERNANDEZ and Esther Hernandez, his wife, Appellants, v. MOTRICO, INC., etc., et al., Appellees.
    No. 78-911.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      Milton Kelner, Miami, for appellants.
    Preddy, Kutner & Hardy, Greene & Cooper and Robyn Greene, Miami, for appel-lees.
    Before HENDRY and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

By this appeal we are asked to determine whether the trial court committed error in granting the motion for a directed verdict in favor of defendants/appellees at the close of appellant/plaintiff’s case. We find error and reverse.

Appellants, Roberto and Esther Hernandez, instituted suit against appellees and others for injuries sustained in a shooting incident in the cocktail lounge of the bar of the Centro Vasco Restaurant. The trial court entered a default on liability against Omar Jesus Gonzalez, the individual who was the assailant, after he failed to respond to the complaint; the court also granted a motion for summary judgment and dismissed the insurer of an individual who had been arguing with the assailant prior to the shooting. Thus, the case was tried against the remaining defendants, the appellees— Motrico, Inc., owner of the restaurant and bar; Juanitocho Saizarbitoria, the manager; Armando Flores, the bartender; and the insurer of the restaurant. The basis for the negligence action is the allegation that the defendants failed to exercise due care to maintain the premises in a reasonably safe condition and to guard against subjecting the plaintiff/patron to dangers of which the owners/operators were cognizant or might reasonably have foreseen.

Subsequent to the rendition of the final judgment pursuant to the directed verdict and the denial of a motion for new trial, Mr. and Mrs. Hernandez filed this appeal. The sole issue raised is whether there was evidence or reasonable inference therefrom to support the plaintiffs’ cause of action, thus precluding the directed verdict as a matter of law.

It is well established that a directed verdict should be granted the defendant by the trial court at the close of plaintiff’s case only when it is clearly apparent to the court that no evidence has been submitted on which the jury could lawfully find a verdict for the plaintiff, and the conclusion reached by the trial judge under the circumstances is a conclusion of law resulting from the presence of a state of facts that permits no other legal result. MacAlpine v. Martin, 205 So.2d 347 (Fla. 2d DCA 1967); Sun Life Insurance Co. of America v. Evans, 340 So.2d 957 (Fla. 3d DCA 1976); Florida Rule of Civil Procedure 1.480, Florida Statutes Annotated, Volume 30. However, the direction of a verdict can constitute an encroachment on the right of a litigant to a jury trial and an invasion by the court of the province of a jury which is contrary to constitutional guaranties, where there is any evidence to justify a possible verdict for the non-moving party— even if a preponderance of the evidence appears to favor the movant. See Budgen v. Brady, 103 So.2d 672 (Fla. 1st DCA 1958). The authority of the court to direct a verdict should be exercised with caution, and this is especially true in negligence cases where the function of a jury to weigh and evaluate the evidence is particularly important since reasonable men often draw varied conclusions from the same evidence. Brookbank v. Mathieu, 152 So.2d 526 (Fla. 3d DCA 1963). See generally, 88 C.J.S. Trial § 249 et seq.

The instant record reflects by way of deposition and trial testimony that the evidence is conflicting in some of its material aspects, which, under the circumstances of a negligence action such as we are reviewing here commands our determination that the granting of the directed verdict is reversible error. It must be kept in mind that if there is room for a difference of opinion between reasonable men as to the proof of facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences that might be drawn from conceded facts, the matter should be submitted to the jury. McCabe v. Howard, 281 So.2d 362 (Fla. 2d DCA 1973) and Ranger v. Avis Rent-A-Car System, Inc., 336 So.2d 467 (Fla. 3d DCA 1976). The trial court should not infer certain facts, as a matter of law, unless they are certain and incontrovertible. Atlantic Coast Line R. Co. v. Webb, 112 Fla. 449, 150 So. 741 (Fla.1933).

The facts herein are not certain and incontrovertible, and the function of the jury in resolving factual conflicts is quite as important as any single function performed by the court. Our system of justice requires that the jury, as trier of facts, is to determine the credibility and probative force of conflicting testimony, then to decide who is speaking the truth. Crews v. Warren, 157 So.2d 553 (Fla. 1st DCA 1963).

The final judgment entered pursuant to the directed verdict is reversed and the-cause is remanded to the trial court for a new trial.

Reversed and remanded.

      . The wife was a plaintiff based upon a derivative claim.

      . Citizens’ & People’s National Bank v. Louisville & N. R. Co., 80 Fla. 319, 85 So. 916 (Fla. 1920) and Sun Life Insurance Co. of America v. Evans, supra.


author: PEARSON, Judge.

text:
    Henry E. WOLFF, Appellant, v. DADE COUNTY, Appellee.
    No. 78-1595.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      John G. Fletcher, Miami, for appellant.
    Stuart L. Simon, County Atty., and Robert A. Ginsberg, Asst. County Atty., for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PEARSON, Judge.

Appellant Henry E. Wolff, plaintiff in the circuit court, brought an action for declaratory decree and injunction claiming that the denial by defendant-appellee Dade County of his application for reclassification of sixteen hundred acres of land amounted to an unconstitutional taking of property. The County prevailed upon a holding by the circuit court judge after trial that Wolff had failed to carry his burden of proving that the legislative action of the County was unreasonable, arbitrary and unconstitutional.

Henry Wolff is the owner of sixteen hundred acres of land located on North Kendall Drive, west of the area which is designated for development in the Dade County Master Plan and which is authorized by Section 163.3161 et seq., Florida Statutes (1977). In 1977, Wolff filed an application with the Dade County Commission for reclassification of his sixteen hundred acres from a classification of agricultural and open land to a classification that would allow residential development. This application was one of many presented to the Dade County Commission at its annual review of the master plan in order to make amendments thereto. After extensive proceedings before the Dade County Commission, the Wolff application for reclassification was one of those denied. Thereupon, Wolff filed a complaint in the circuit court entitled “Complaint for Declaratory and In-junctive Relief,” wherein he prayed:

“2. That this Honorable Court enter a permanent injunction against Dade County compelling it to grant the application which is attached hereto as Exhibit A.”

After the filing of an answer and affirmative defenses by the County, the matter proceeded to trial. An extensive final judgment was entered in which the trial judge made the following finding:

******
“After careful consideration of the evidence presented at trial, the Court finds and determines that the County Commission had a rational basis for its legislative determination to deny Plaintiff’s amendment application. City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957); State v. Sawyer, 346 So.2d 1071 (Fla.2d DCA 1977). It is not the function of this Court to review the legislative wisdom of Ordinance No. 77 — 49. Judicial review is limited to determination of whether the enactment is within the scope of legislative authority and demonstrates a rational exercise of the police powers. This Court so holds. The County Commission may properly consider proposed Master Plan amendments in the light of available and future community services together with the adopted Master Plan goals, policies and objectives providing for managed and coordinated community growth. It is accordingly, . . . ”

This appeal is from that judgment.

It is clear that in this case there is no issue of interference with the environment affecting the interests of the public in the preservation of the present condition of the land for ecological reasons. In other words, there is no suggestion that the County acted, for example, because the water supply, drainage or other natural resources would be damaged by the reclassification. We point this out as a preliminary to our consideration of the questions before us because such an issue may be presented upon future considerations of the master plan.

The enactment of a master plan for development is recognized as a proper exercise of the police power. See Dade County v. Yumbo, S.A., 348 So.2d 392 (Fla. 3d DCA 1977); and Home Rule Charter for Metropolitan Dade County, Florida, Art. I, § 1.01(A)(5). See also Eskind v. City of Vero Beach, 159 So.2d 209 (Fla.1963). Although there appears to be no rigid set of standards for such a plan and for its implementation, such a plan should be written and implemented with a commitment toward: (1) the achievement of its goals and purposes, (2) the adherence to the consistency of its application, (3) the maintenance of the integrity of its amendment process, and (4) the protection at the various stages of accepted due process requirements. See 2 Fla.State L.Rev. 766 (1974).

Appellant Wolff’s principal attack on the trial court’s determination is based on the theory that because no criteria for the consideration of amendments are set out in the master plan, he (Wolff), having complied with the criteria prescribed by the Director of the Dade County Planning Department, must be granted a reclassification. We do not find ourselves limited to those particular factors considered by the Planning Director. On the contrary, we find that a review of the entire record shows a reasonable basis for legislative action in the denial of the application for reclassification of Wolff’s land.

In this regard, it should be noted that the Supreme Court of Florida has repeatedly emphasized that any legislative enactment carries a strong presumption of constitutionality and that if there is a rational basis for the exercise of the State’s police power by the legislative authority, such an enactment should not be reversed by the appellate court. See State v. Bales, 343 So.2d 9 (Fla.1977); Askew v. Schuster, 331 So.2d 297 (Fla.1976), and City of Miami v. Kayfetz, 92 So.2d 798 (Fla.1957).

In making the determination that the record supports the reasonableness of the legislative action, we have been primarily concerned with appellant Wolff’s argument that the Dade County Commission arbitrarily discriminated against his application in favor of other applications. The basis of this claim of discrimination is that at the time of the trial of his cause in the circuit court for alleged unreasonableness of the 1977 denial, the County had already conducted the 1978 proceedings upon applications for reclassification of the master plan. In the 1978 proceedings, the County granted several applications which Wolff argues showed that the criteria prescribed by the County for the 1978 applicants established that he had met the criteria in 1977 because of the similarity between his land and the land in which reclassification was allowed in 1978. We have examined the evidence submitted on the 1978 proceedings, and while we have grave doubts about the propriety of admitting such evidence, we hold that even if properly admitted, such evidence does not demonstrate unreasonableness of the 1977 action by the County. The 1978 amendments approved by the County were not close to Wolff’s property. In addition, the applications approved in 1978 do not extend the western boundary as far west as Wolff’s application requested. When a line must be drawn as a demarcation for development, there will always be the criticism that it is arbitrary in some areas. This fact is not a proof of unreasonableness, because the line must be drawn. See City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, 366 (1941); and Polk Enterprises, Inc. v. City of Lakeland, 143 So.2d 917, 918-919 (Fla. 2d DCA 1962). Piecemeal changes in the boundary line are not well advised because of the domino effect.

“The proximity of a use identical to the one for which a variance is sought does not relieve the applicant of the burden of proving that his land will not yield a reasonable return if confined to the uses authorized by the zoning regulations. If the rule were otherwise, each nonconforming use would spawn a circle of similar variant uses, and each in turn would justify additional variances until the zone was destroyed.” * * * 3 R. Anderson, American Law of Zoning 2d § 18.25 (1977).

In this opinion, we have not attempted to designate the criteria that the County must use in determining whether to grant an application for reclassification. We do feel constrained, however, to hold that a simple determination by the County that the development of an applicant’s property is not needed is not a proper basis for a determination of the reasonableness of such an application. See Berkley v. State Department of Environmental Regulation, 347 So.2d 467, 470 at n. 8 (Fla. 1st DCA 1977), and Wyatt v. City of Pensacola, 196 So.2d 777 (Fla. 1st DCA 1967). We do not imply that need for housing may not be considered in the legislative process. Comprehensive planning is of such recent development that the reported cases do not form a basis for ironclad rules or criteria for legislative action.

The principle that legislative action will not be reversed by the courts where a reasonable basis or a “fairly debatable” basis exists for the legislative action is applicable to this type of zoning as it is to all other exercises of police power. The courts are aware that increasing population demands land use planning and that the reasonableness of such planning must be judged on the basis that such legislation is a restriction on the use by an owner of his land. Such restrictions are lawful only to the extent that the restriction is required by the needs of public welfare in general.

Tested by this yardstick, the finding of the trial court in the instant case is not shown to be erroneous.

Affirmed.

      . “(3) It is the intent of this act that its adoption is necessary so that local governments can preserve and enhance present advantages; encourage the most appropriate use of land, water, and resources, consistent with the public interest; overcome present handicaps; and deal effectively with future problems that may result from the use and development of land within their jurisdictions. Through the process of comprehensive planning, it is intended that units of local government can preserve, promote, protect, and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare; prevent the overcrowding of land and avoid undue concentration of population; facilitate the adequate and efficient provision of transportation, water, sewerage, schools, parks, recreational facilities, housing, and other requirements and services; and conserve, develop, utilize, and protect natural resources within their jurisdictions.”

      . Mr. Wolff did not reapply in 1978.


text:
    Robin M. FORSHEE, Appellant, v. PENINSULAR LIFE INSURANCE COMPANY, Appellee.
    No. 78-1631.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      Chambers & Hayes and Charles A. Hayes, Homestead, for appellant.
    Mahoney, Hadlow & Adams and William C. Crenshaw, Miami, for appellee.
    Before PEARSON and KEHOE, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PEARSON, Judge.

The appellant, Robin Forshee, sued the appellee, Peninsular Life Insurance Company, claiming the right to payments for accidental death benefits as the beneficiary under a policy issued to her husband, Richard G. Forshee. She received a jury verdict, but judgment was entered for the defendant insurer in accordance with its motion for a directed verdict. The parties agree that the basis for the directed verdict was a holding by the trial court either that the evidence showed without issue of fact that the deceased was committing or attempting to commit an assault or felony at the time he was shot, or that the plaintiff did not meet her burden of showing accidental death. We hold that there was a jury issue presented on each of these grounds and we reverse with directions to enter judgment upon the jury verdict.

The evidence presented to the jury was that plaintiff Robin M. Forshee is the widow of Richard G. Forshee, who was shot to death on October 14, 1975. She was the only live witness; Carl E. Reddick, the person who shot Richard G. Forshee, testified by deposition. The exhibits placed into evidence consisted of the death certificate and the Peninsular Life Insurance Company policy.

The plaintiff testified that she had been married to Richard G. Forshee since February 3, 1971, and that he had been employed as a body and fender man. She last saw her husband alive at about 10:30 p. m. on October 14, 1975, at the family home, when he had left to go to the home of Jerry Reddick (the nephew of Carl Reddick, who shot the decedent) to see whether he could get some money that he had lent Jerry. Shortly thereafter, the plaintiff was notified that her husband had been shot. There was no gun with his personal belongings; neither did he own a gun nor had the plaintiff ever seen him with a gun.

The plaintiff also testified that when the decedent left home that evening, he was not intoxicated or upset and did not have a gun. She had never seen her husband fight with anyone or argue with anyone, except her. She had never seen him threaten anyone and she described him as a happy person who joked with Jerry, both of whom were in the paint and body shop business.

The death certificate revealed that the decedent died at 12:01 a. m. as the result of “[gjunshot wounds of [the] body.”

The defendant insurer then offered the deposition testimony of Carl Reddick, the person who had shot the decedent. He testified that he was lying in his nephew’s automobile in the nephew’s backyard when he heard another vehicle pull in. He heard the decedent and Jack Gersonder, who had gotten out of the truck, talking. He testified that while lying in the automobile, he heard the decedent say, “Well, make sure we can get out of here in a hurry because I’m going to waste this dude.” He also saw something in the back of their Levis which he thought were guns. He saw the decedent and Gersonder enter the house and heard his nephew, Jerry, and the decedent arguing and saw the decedent push Jerry against a wall. He also saw Gersonder with a gun in his hand. He then saw the decedent hit the wall beside Jerry. He testified that the conversation was over a money matter between Jerry and the decedent. He further testified that at this same time he was himself outside for what “must have been . . . seven minutes” looking around for “something to start a war with” and “trying to figure out [what] to do.” He then remembered Jerry had a pistol in a drawer in the far bedroom of the house and he thought that he could scare off the decedent and Gersonder with the pistol. He went around to the bedroom window and was there about ten minutes before taking the window out. Billy Reddick (a nephew of Carl) was asleep on the couch and Carl knew that he could not wake him up. He attracted the attention of Brenda Reddick, Jerry’s wife, who handed him the pistol out the window. He then went back around the house to the outside kitchen steps where he remained throughout the entire incident.

The two men were arguing in a “two-by-four” kitchen and the decedent was turning around and drinking beer and threatening. Carl then aimed the pistol at the men in the kitchen and said, “Let's go. Get out of there, both of you.” Gersonder put his hands up and the decedent allegedly said, “Hey, I’ll just kill you too” and walked toward Carl. When the decedent made the comment, “I’ll kill you too,” Carl shot the decedent in the shoulder while the decedent was allegedly reaching behind his back. The decedent had taken two steps toward the kitchen door when shot. He was inside the kitchen and blood was found in the kitchen. The decedent, who was then walking fast toward the door, was shot a second time in the leg, and then was shot two more times, and thereupon dropped at the back steps. Carl said he first saw a gun sticking out of the decedent’s Levis when he fell and at no time did he touch the gun.

Carl then shot Gersonder, who, though wounded, took the decedent to James Archer Smith Hospital.

Carl fled and hid in a banana grove where he overheard the police making their investigation. He heard his nephew, Billy Reddick, tell the police that he did not know the person who had done the shooting. Carl then fled to another home in Homestead and later called the police to report that he had shot the decedent. Jerry Red-dick, who had been arguing with the decedent, took the gun used in the killing and fled the scene with his entire family.

The deposition testimony of Carl Reddick reflected that the decedent never drew a gun, that Carl himself had done all the shooting, that the decedent had struck no one that evening and that the incident involved a heated argument between two men who had been friends and had worked in the body shop business in Homestead.

When questioned on the subject of sobriety, Carl testified that he had consumed about two or three beers starting about four or five o’clock that afternoon. He also thought the decedent had a can of beer with him when he entered the house.

A directed verdict for a defendant at the conclusion of the presentation of evidence or after jury verdict is proper only when the evidence viewed in the light most favorable to the plaintiff shows that the jury could not reasonably differ on the existence of a material fact, and the defendant is entitled to a judgment as a matter of law. See McCabe v. Watson, 225 So.2d 346 (Fla. 3d DCA 1969); see also Hendricks v. Dailey, 208 So.2d 101 (Fla.1968).

The question of whether a death is accidental or whether the decedent was the aggressor or committing an assault at the time of his death is, by its very nature, a question of fact. Republic National Life Insurance Company v. Valdes, 348 So.2d 566 (Fla. 3d DCA 1977). See also Mutual Life Ins. Co. of New York v. Bell, 147 Fla. 734, 3 So.2d 487 (1941); and Walker v. Prudential Ins. Co. of America, 127 F.2d 938 (5th Cir. 1942).

The jury is the sole trier of the facts and may draw any reasonable inference from the evidence submitted. See National Airlines v. Florida Equipment Co. of Miami, 71 So.2d 741, 744 (Fla.1954).

The defendant’s argument that because no person other than the one who shot the decedent testified about the shooting, the jury must accept the witness’s conclusion that the decedent was engaged in an assault, is not maintainable. The jury could have found that the decedent did not have a gun, was peaceful in his intentions, and was shot because Carl Reddick misinterpreted the decedent’s actions or was shot for other reasons. We, therefore, hold that the evidence before the jury did not show that the defendant insurer was entitled to a judgment as a matter of law on the basis that the evidence established without issue that the decedent was engaged in the commission of an assault at the time he was shot. Cf. Mutual Life Ins. Co. of New York v. Bell, 147 Fla. 734, 3 So.2d 487, 488 (1941).

The defendant’s claim that the evidence did not prove a prima facie case of accidental death is also without basis on this record.

Reversed with directions to enter judgment on the jury verdict.

      . A limitation under the policy concerned “(g) Participating in or attempting to commit an assault or felony.”

      « ♦ Sfi 5(5 * ♦ *
      “It not infrequently happens that there is actually no conflict in evidence as to what was done or said, but the inferences of ultimate fact to be drawn from these evidentiary facts may be quite different. It is peculiarly within the province of the jury to draw these inferences and determine the ultimate facts. The constitutional guaranty of the right of trial by jury is respected only when this rule is strictly applied.”

      . The policy provided the following definition of “accidental death”:
      “Accidental death means loss of life resulting independently of all other causes from bodily injury and evidenced by a visible contusion or wound on the exterior of the body . and death occurred within 90 days after such injury and such injury effected while the Policy was in full force on a premium paying basis.”


author: SCHWARTZ, Judge.

text:
    Marion L. WINNER, Appellant, v. Linda Gayle WINNER, Appellee.
    No. 78-1651.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      Steinberg & Sorota and Samuel S. Sorota, Miami Beach, for appellant.
    Koeppel, Stark & Newmark and Robert Gellman, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

In the final judgment of dissolution the trial judge, in addition to making awards of child support and two and one-half years of periodic rehabilitative alimony, (a) determined that the appellant-husband had, during the marriage, made a gift of some $16,-000 worth of diamonds to the appellee-wife, and (b) granted $30,000 in lump sum alimony, payable in six semi-annual payments of $5,000 each, beginning when the rehabilitative alimony payments terminated. The husband’s appeal in this case challenges both of these rulings.

We find error in the lower court’s ruling that a gift of the diamonds had been validly effected. At the time that Mr. Winner uttered the “words of donative intent” upon which the wife relies, and at all times since, the gems in question were in the possession of a North Carolina bank where they had been pledged as security for a loan. There was no evidence either that the diamonds had physically changed hands or that there had been a symbolic transfer of title or control over them, by writing or otherwise, from the husband to the then-Mrs. Winner. Thus, the record fails completely to establish the existence of either an actual or constructive delivery of the property at issue. There can be no question both that a delivery is an essential element of any gift of personal property, 15 Fla.Jur., Gifts, § 14—19 (1957), and that this requirement is directly applicable to asserted gifts between spouses. Jones v. Ferguson, 150 Fla. 313, 7 So.2d 464 (1942). As the court said in Fuller v. Fuller, 215 So.2d 507, 510 (Fla. 4th DCA 1968):

“The essential elements of a gift between husband and wife are delivery, actual or constructive, intent of the donor to divest himself of all dominion and control, and acceptance by the donee, which may be presumed as in other cases. 41 Am.Jur.2d, Husband and Wife, § 259. It is almost uniformly held that a gift inter vivos or causa mortis may be effected by a writing without delivery, where the writing is a deed or an instrument under seal; it has also been held that a deed is effective as a gift, without delivery of the property, if a manual delivery is impracticable or impossible. As in all transfers by written instruments the language must express a present intention to pass title. In order to constitute a valid gift, the deed must pass beyond the dominion and control of the donor and come within the power and control of the donee. 38 Am.Jur.2d, Gifts, § 31.” [e.s.]

Nor is there anything in either Ball v. Ball, 335 So.2d 5 (Fla.1976), or those of its progeny which involve personalty, e. g. Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978), which in any way affects this rule. The absence of evidence of any species of a valid delivery, compare Burnham v. Burnham, 343 So.2d 639 (Fla. 4th DCA 1977), therefore requires reversal of that portion of the final judgment which orders that the husband transfer either the diamonds or their money value to the wife.

In view of the evidence concerning the contributions of the wife to the husband’s business and of their respective financial status and capital holdings, we find no abuse of discretion in the trial judge’s action in making an award of lump-sum alimony, Yandell v. Yandell, 39 So.2d 554 (Fla.1949); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976); or in his determinations of the manner and timing of its payment. Bosem v. Bosem, 279 So.2d 863 (Fla. 1973); Storer v. Storer, 353 So.2d 152 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1250 (Fla.1978). We therefore reject the husband’s claim of error in this facet of the final judgment. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

However, the amounts awarded below to the wife in both periodic-rehabilitative and lump-sum alimony may well have been influenced by the finding of her entitlement to the diamonds, which we have reversed. We therefore remand the cause so that the trial judge may reassess these aspects of the final judgment, take further testimony if he deems it appropriate, and determine, in his discretion, whether the provisions for the wife should be increased commensurately. Bradley v. Bradley, 327 So.2d 253, 254 (Fla. 4th DCA 1976); Drucker v. Drucker, 239 So.2d 117 (Fla. 3d DCA 1970); see Jones v. Jones, 330 So.2d 536, 539 (Fla. 1st DCA 1976).

We reach the same conclusion as to the lower court’s denial of the wife’s claim for attorney’s fees, which she has challenged on cross-appeal. Because this action may also have been based on the holding that Mrs. Winner was the owner of $16,000 worth of jewels and was thus in a financial position to pay her own fees, see Boss v. Ross, 341 So.2d 833 (Fla. 3d DCA 1977), cert. denied, 354 So.2d 984 (Fla.1977), this issue should be likewise reconsidered on remand in the light of our holding that she is not entitled to the diamonds.

Reversed in part, remanded with directions.


text:
    Debbie J. TEATER, Appellant, v. DEPARTMENT OF COMMERCE BOARD OF REVIEW, State of Florida, and Sears, Roebuck and Company, Appellees.
    No. 78-1694.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      Terry L. DeMeo, South Miami, and M. Jeffrey Speno, Miami, and Judy Bass, Legal Services of Greater Miami, for appellant. James R. Parks, Miami, for appellees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal by a claimant for unemployment compensation is directed to an order of the State Board of Review affirming a decision of an Appeals Referee which had dismissed, as untimely, the claimant’s appeal of a Claims Examiner’s determination that she was ineligible for benefits.

Section 443.07(4)(b)l, Florida Statutes (1977), provides:

The claimant or any other party entitled to notice of a determination as herein provided, may file an appeal from such determination with an appeals referee within 10 days after the date of mailing of the notice to his last known address or if such notice is not mailed, within 10 days after the date of delivery of such notice.

In this case, appended at the foot of the Examiner’s written determination was a notice of right of appeal, which stated that the last date for appeal was December 10, 1977, and which contained the statement: “Date mailed 11-30-77.” Below that notice and statement a space was provided for signature of “Examiner”. It was not so signed.

The claimant filed an appeal on January 11, 1978, on which she stated she had not received a copy of the determination and had learned of it that day. After a hearing the Appeals Referee dismissed the appeal as untimely filed. The claimant appealed that ruling to the Board of Review, which then remanded the cause to the Appeals Referee to take testimony relating to the question of timeliness of the initial appeal. After such hearing, the Appeals Referee held the appeal had been untimely. The claimant appealed that ruling to the Board of Review, which affirmed. This appeal by the claimant ensued.

We hold a conclusion by the Appeals Referee affirmed by the Board of Review, that the initial appeal was untimely is not supported by competent substantial evidence. The testimony of the claimant that she did not receive a copy of the Examiner’s determination in the mail, her prompt filing of an appeal when, according to her, she learned of the decision (by a visit to the office); the absence of direct evidence of actual mailing of the determination to the claimant; the lack of evidence as to the customary procedures employed for mailings of this nature; and the fact that the certificate or statement of mailing went unsigned; all taken together served to create such uncertainty in the matter that, in our view, the ends of justice will best be served by acceptance of the appeal.

The order appealed from is reversed, and the matter is remanded to the Board of Review with direction that the Board of Review shall further remand the matter to the Appeals Referee, with direction to the latter that the claimant’s appeal filed January 11, 1978, is to be considered and determined on its merits.

It is so ordered.


text:
    Betty CHEVEL and Morris Chevel, Appellants, v. John Z. BRANDT, Gary Z. Brandt, Robert Z. Brandt, James Z. Brandt, d/b/a Pix Realty Company and William Burger, Appellees.
    No. 78-1768.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Rehearing Denied June 1, 1979.
    Highsmith & Strauss and Michael J. Jahn, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Brooks v. Peters, 157 Fla. 141, 25 So.2d 205 (1946); Wingard v. McDonald, 348 So.2d 573 (Fla. 1st DCA 1977), cert. denied, 358 So.2d 132 (Fla.1978).


text:
    The STATE of Florida, Appellant, v. Eugene HADDEN, Jr., Appellee.
    No. 78-1813.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Rory S. Steins, Asst. Public Defender, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the State of Florida from an order dismissing two counts of an information. We find error and reverse.

On January 4, 1978, a three-count information was filed against Eugene Hadden, Jr. The first count charged Hadden with unlawful possession of cannabis in an amount greater than five grams. By the second count Hadden was charged with unlawful possession of a firearm (pistol) while having previously been convicted of felonies in this state on February 23, 1971 (possession of a short-barreled shotgun) and October 18, 1971 (aggravated assault). The third count made a similar charge based on unlawful possession of a firearm (shotgun). The defendant Hadden moved for dismissal of Counts II and III alleging that two year sentences received by him on the prior 1971 convictions had been served and terminated by August 1, 1972, and that such fact had not been reported by the Parole and Probation Commission to the governor and cabinet and that thereby he had been deprived of restoration of his civil rights.

In effect at the times involved here was Section 940.05, Florida Statutes (1977), relating to restoration of civil rights, as follows:

Any person who has been convicted of a felony may be entitled to the restoration of all the rights of citizenship enjoyed by him prior to his conviction if he complied with one of following criteria:
(1) Has received a full pardon from the board of pardons, or
(2) Has served the maximum term of the sentence imposed upon him or
(3) Has been granted his final release by the parole and probation commission.

Also in effect was Section 940.06 entitled “Submission of names of qualified persons” which reads as follows:

The parole and probation commission shall submit to the governor and cabinet the names of persons who qualify for the restoration of civil rights in accordance with § 940.05.

On September 10, 1975, certain Rules of Executive Clemency of Florida were promulgated which were effective November 1, 1975. Included therein were two provisions material to this case. By Section 9 of the Rules it was provided that “A. When a person receives final release from the Florida Parole and Probation Commission, Department of Offender Rehabilitation or county jail, his civil rights shall be automatically reinstated, except the right to possess or own a firearm shall be specifically withheld.”

Under that provision of the clemency rules, restoration of civil rights would be automatic following completion of service of sentence by one who so completed his sentence on or after November 1, 1975. That provision for automatic restoration of civil rights was not retroactive. This is shown by the provision in Section 9 of the Rules which states that in order for one who has thus completed a sentence previously to obtain automatic reinstatement of his civil rights it is necessary that he make an application therefor. That provision of the rule is as follows: “B. Any person released from the Florida Parole and Probation Commission, the Department of Offender Rehabilitation or county jail prior to the effective date of this rule may upon application have their civil rights automatically reinstated, except the right to possess or own a firearm shall be specifically withheld.”

The trial court granted Hadden’s motion and dismissed Counts II and III. In the order entered thereon the court recited the prior felony convictions of the defendant in 1971 and that he had been released from supervision on August 1, 1972, and made reference to the above quoted statutory provision for the Parole and Probation Commission to submit to the governor and cabinet the names of persons who qualify for restoration of civil rights under the above quoted section 940.05. The order then recited that the Commission had not submitted defendant’s name to the governor and cabinet after his completion of his sentences for said prior felonies, and the trial court held that deprived the defendant “of an opportunity for restoration of civil rights.” The trial court’s order further noted that if the defendant’s civil rights had been restored that circumstances would operate as a defense to the charges in Counts II and III making it unlawful for any person who has been convicted of a felony in the courts of this state to own or possess a firearm because of the provision therein that the same shall not apply to a person previously convicted of a felony whose rights have been restored. Section 790.23, Florida Statutes (1977). The trial court then held that if the Commission had given such notice, “it is possible that defendant’s civil rights would have been restored giving the defendant an absolute defense.” Based thereon the trial court held the State was estopped to prosecute the defendant on said counts.

Dismissal of Counts II and III by the trial court was error. The exception provided for in Section 790.23, Florida Statutes (1977), defining the offenses was not applicable because the civil rights of the defendant had not been restored. Had the Commission given timely notice to the governor and cabinet in 1972 that Hadden was qualified for restoration of his civil rights, that action by the Commission would not have restored his civil rights, which was something to be done by the governor and cabinet upon application by the defendant. Hadden could have applied for restoration of his civil rights with or without such notice having been given by the Commission. The conclusion of the trial court that a possibility that Hadden’s civil rights would have been restored if the Commission had given notice to the governor and cabinet of his entitlement thereto, should be treated as the equivalent of actual restoration of the civil rights, was incorrect. Between the time he was released in 1972 and the effective date of the Executive Clemency Rules, November 1, 1975, Hadden could have applied for restoration of his civil rights, in the event of which the fact of his release in 1972 could have been established. After the effective date of the Rules in 1975 Hadden could have obtained restoration of his civil rights by making application as provided for in said Rules. He made no such application at any time, and his civil rights were not restored.

His release upon completing his sentences for the prior felonies did not automatically restore his civil rights. Notice that he was qualified therefor, if such had been given by the Commission, would not have automatically restored his civil rights. In order for that to occur for one in Hadden’s case application for restoration was necessary. See Gallie v. Wainwright, 362 So.2d 936 (Fla.1978), which was decided two days after the trial court’s order.

Also we hold to be error the conclusion reached by the trial court that the State was estopped to prosecute the defendant on Counts II and III because of the failure of the Commission to give such notice to the governor and cabinet. In Coogler v. Rogers, 25 Fla. 853, 7 So. 391, 394 (1889), the Supreme Court said:

“ * * * And it has been repeatedly decided that the principle of estoppel is applicable to all cases where one, by word, act, or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induced him to act on this belief injuriously to himself, or to alter his own previous condition to his injury. * * * ”

The burden of proving an estoppel rests on the party invoking it, and every fact essential to estoppel must be proved. Erwin v. Dekle, 60 Fla. 56, 53 So. 441 (1910); Horton v. Smith-Richardson Inv. Co., 81 Fla. 255, 87 So. 905 (1921); First National Bank of Arcadia v. Savarese, 101 Fla. 480, 134 So. 501, 504 (1931). One claiming estoppel on the basis of another’s silence or omission must show he justifiably relied thereon to his prejudice, and that his reliance thereon and conduct to his prejudice was intended or reasonably anticipated by such other person. Ennis v. Warm Mineral Springs, Inc., 203 So.2d 514, 520 (Fla. 2d DCA 1967).

In the instant case there was no showing that the silence of the Commission was intended to cause the defendant to act to his detriment or that in fact the defendant took any action to his detriment on the basis thereof. Here the facts essential to estoppel were nor proved.

Moreover, estoppel will not be applied against the State for an omission to act, but will be applied only in special circumstances which must include “some positive act on the part of some [official] of the state upon which the aggrieved party had a right to rely and did rely to its detriment.” Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517, 524 (Fla. 1st DCA 1971); Jefferson National Bank v. Metropolitan Dade County, 271 So.2d 207, 214 (Fla. 3d DCA 1972).

For the reasons stated above and on authority of Gallie v. Wainwright, supra, the order dismissing Counts II and III of the information in this case is reversed; and the cause is remanded for further proceedings.

It is so ordered.

      . On Count I charging unlawful possession of cannabis, Hadden was convicted. The sentence imposed was for the period for which he had been confined prior to conviction, for which he was given credit.


text:
    Norman M. ATKINS, Jr., Appellant, v. Patrick HARRIS et al., Appellees.
    No. 78-1824.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellant.
    Richard E. Hardwick and Roger C. Lambert, Coral Gables, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The order of equitable distribution appealed from is reversed and the cause remanded to the trial court with directions to conduct a new hearing on the appellant’s petition for equitable distribution giving due consideration to all the guidelines formulated for equitable distribution in cases of this nature as established by the Florida Supreme Court in Williams v. Gateway Insurance Co., 331 So.2d 301, 304-305 (Fla. 1976). It affirmatively appears from the record that the trial court did not give sufficient consideration to all of these guidelines prior to entering the order appealed from.


text:
    John Scott HUSTED, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1830.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.
    Harvey Robbins, North Miami, John H. Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The defendant pled nolo contendere below, reserving the right to appeal the denial of his motion to suppress the marijuana which formed the basis of the charge against him. The contraband was seized by Dade County Public Safety Department officers at the Miami International Airport after Husted gave them permission to search his luggage. He contends here that his consent was irremedially “tainted” by the fact that it was given after, as he contends and as the trial judge found, the police unlawfully stopped him in the airport concourse. See Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978), cert. denied, 361 So.2d 835 (Fla. 1978) and cases cited.

We need not and specifically do not pass upon the issue of whether the stop of the defendant was under the circumstances in any way improper, because the trial judge specifically found:

“4. That the Defendant, in fact, freely and voluntarily consented to a search of his luggage after having been advised of his right to refuse said search.
5. That the consent given by the Defendant was not tainted by the initial unlawful stop.”

The factual conclusion that the officers specifically told Husted of his right to withhold his consent is fully supported by the record. State v. Nova, 361 So.2d 411 (Fla.1978); Rodriquez v. State, 189 So.2d 656 (Fla. 3d DCA 1966). And it is well-settled that the trier of fact may properly find that such a warning breaks the connection with any prior illegal police activity so as to render a subsequent consent un-“tainted,” un-coerced, and truly voluntary in character. As the court said in Bretti v. Wainwright, 439 F.2d 1042, 1045, 1046 (5th Cir. 1971), cert. denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971):

“We need not here decide whether the arrest of appellant was legal or not, for, even if illegal, we think that the subsequent consent was untainted . . . ”
*****.*
While warnings prior to a consensual search may not have the same indispensability as those required prior to a confession . . . they do help ensure that the consent is free, voluntary, and untainted by the arrest’s possible illegality. In the instant case the presence of these warnings leads us to conclude that any coercion flowing from the possible illegality of appellant’s arrest was dissipated. We therefore hold that the evidence supports the conclusion that appellant voluntarily consented to the search of his apartment.”

Accord: St John v. State, 363 So.2d 862 (Fla. 4th DCA 1978); Taylor v. State, supra, at 355 So.2d 185 (“Such an advisement by the officer given prior to the challenged consent might very well have broken the chain of presumptive coercion created by the prior illegal search; . . .”); see Longo v. State, 157 Fla. 668, 26 So.2d 818 (1946); United States v. Fike, 449 F.2d 1 (5th Cir. 1971). Since the denial of the motion to suppress was thus properly based upon the evidence and the applicable law, the judgment under review is

Affirmed.

      . But see the principles enunciated in United States v. Wylie, 186 U.S.App.D.C. 231, 569 F.2d 62 (1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978).


text:
    Anne POWERS, Petitioner, v. The STATE of Florida, Respondent.
    No. 79-488.
    District Court of Appeal of Florida, Third District.
    May 8, 1979.

      Greene & Cooper and Sharon L. Wolfe, Miami, for petitioner.
    Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., for respondent.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PEARSON, Judge.

We have been presented with a petition for writ of certiorari by Anne Powers, defendant in the county court, seeking review of the circuit court affirmance of her county court conviction for “offering to commit prost[itution] In Viol[lation] of [Section] 796.07, [Florida Statutes (1977)].” The petition alleges a departure from the essential requirements of law by the circuit court’s affirmance of her conviction on appeal, where the record clearly shows that she (1) was entitled to a jury trial, (2) had demanded a jury trial and (3) had not waived her right to a jury trial under the provisions of Florida Rules of Criminal Procedure 3.251 and 3.260.

The response of the State to the petition is: first, that the record shows a violation of a municipal ordinance and, therefore, the petitioner had no right to a jury trial and; second, that the petitioner’s attorney in open court waived a jury trial and requested a non-jury trial and, therefore, the petitioner is barred from her assertion of a departure from the essential requirements of law.

The record shows that the petitioner was arrested for the above-mentioned violation of the Florida Statutes by police officers of the City of Miami Beach, and the State urges that we may take judicial notice of the fact that the City of Miami Beach has charter authority to enact an ordinance which would make the violation of the Florida Statutes violations also of municipal ordinances. We have no objection to taking judicial notice of the fact that the petitioner was also in violation of a municipal ordinance; however, we think we are bound by the record which shows that the petitioner was arrested on a charge of “offering to commit prost. in Viol. of F.S. 796.07 . . . [and] ... in Viol. of Sec. 25-88 of the Code of Miami Beach.” It has been determined that Section 932.61, Florida Statutes (1977), confers a statutory right to a jury trial when the violation of a municipal ordinance is also a violation of state law. City of Tampa v. Ippolito, 360 So.2d 1316 (Fla. 2d DCA 1978).

Turning to the State’s suggestion that the petitioner is barred from claiming a departure from the essential requirements of law because she waived her right to a jury trial in the trial court, we find this was fully disposed of in Tosta v. State, 352 So.2d 526 (Fla. 4th DCA 1977), where the court held: “ . . . under the circumstances of this case, where there was no written waiver by the defendant and nothing in the record to show the defendant’s concurrence in his counsel’s waiver, or that he understood what was meant by waiver of a jury trial, that there was no valid waiver, [citing authorities]” The circumstances in Tos- ta appear to be identical to those in the present case. See also Molfetas v. State, 323 So.2d 598 (Fla. 3d DCA 1975).

We, therefore, issue the writ and quash the circuit court’s order of affirmance with directions for further proceedings in accordance with this opinion.

      . “Rule 3.251 Right to Trial by Jury
      In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury in the county where the crime was committed.”
      “Rule 3.260. Waiver of Jury Trial
      A defendant may in writing waive a jury with the consent of the State.”


author: MOORE, Judge.

text:
    George Russel BENNINGTON, Petitioner, v. Verne C. THORNTON, Jr., Administrator of the Broward County Jail, Respondent.
    No. 79-1003.
    District Court of Appeal of Florida, Fourth District.
    May 10, 1979.
    Rehearing Denied May 23, 1979.
    Paul M. Rashkind of Sams, Gerstein & Ward, P.A., Miami, for petitioner.
    No appearance for respondent.
   MOORE, Judge.

Petitioner seeks our writ of habeas corpus contending that he is illegally detained. The petition and the appendix thereto show that petitioner was placed on probation on June 28, 1977. When his whereabouts became unknown to his probation supervisor on or about February 1,1978, a warrant for petitioner’s arrest for violation of probation was issued by the Circuit Court of the Seventeenth Judicial Circuit on March 2, 1978. Petitioner was thereafter arrested in Citrus County, Florida, on April 23,1979, pursuant to the Seventeenth Judicial Circuit warrant for his arrest. It is the contention of petitioner that he, pursuant to Section 949.11, Fla.Stat. (1977), was entitled to a hearing within ten (10) days from the date of such arrest. We disagree.

The hearing required under Section 949.11 is applicable only in those situations where a probationer has been arrested on a felony charge and pursuant to Section 949.10 the automatic provisions for temporary revocation apply. The record herein reflects that petitioner was arrested pursuant to a warrant for his arrest, as opposed to his arrest for a new felony charge.

When a probationer is arrested pursuant to a warrant, the provisions of Section 948.06, Fla.Stat. (1977), apply. Under this section if the probationer does not admit the violation(s), the court may commit him “with or without bail” and must hold a hearing “as soon as may be practicable.” Unless the petitioner can show an abuse of the trial court’s discretion in denying bail or failing to hold a hearing as soon as practicable, he has not established a prima facie cause for the issuance of our writ of habeas corpus. No such abuse of discretion has been demonstrated here.

Accordingly, the petition for writ of ha-beas corpus is denied.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    Ralph R. CRABTREE, a single man, Appellant, v. Edward C. ROGERS and Julianne Rogers, his wife, Appellees.
    Nos. LL-120, MM-262.
    District Court of Appeal of Florida, First District.
    May 11, 1979.
    Alan B. Fields, Jr., of Dowda & Fields, P.A., Palatka, for appellant.
    John D. Mussoline, Palatka, for appellees.
   PER CURIAM.

Appellant brought suit against appellees for slander of title, trespass, and conspiracy and asked for compensatory and punitive damages. After appellees answered, setting forth several affirmative defenses, they moved for summary judgment and appellant moved for partial summary judgment. The trial court granted appellees’ motion, denied appellant’s, and awarded costs to appellees for copies of depositions. We reverse the grant of summary judgment and the award of costs and affirm the denial of partial summary judgment.

A review of the record and the controlling law reveals that there are genuine issues of material fact and neither party is entitled to judgment as a matter of law. Specifically, as to the slander of title count, the complaint does state a cause of action and the affirmative defense of good faith reliance on the survey creates a factual dispute which cannot be resolved on summary judgment. Annot., 129 ALR 179 (1940); Annot., 137 ALR 2d 840 (1955).

Since the summary judgment is reversed, costs must also be reversed. We note, however, that costs for copies of depositions are not properly assessable. Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla.1952).

Appellees’ petition for attorney’s fees is DENIED.

AFFIRMED in part, REVERSED in part and remanded for further proceedings consistent with this opinion.

McCORD, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    WAYFARA, INC., Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. LL-41.
    District Court of Appeal of Florida, First District.
    May 15, 1979.
    William D. Rowland, Winter Park, for appellant.
    H. Reynold Sampson, Alan S. DeSerio, Philip S. Bennett, Delphene C. Strickland, Margaret-Ray Kemper, Tallahassee, for ap-pellee.
   PER CURIAM.

Appellant appeals from an order in administrative proceedings requiring removal of projections from eight outdoor advertising signs so that they would conform to the size for which permits had been issued. We find that the order for removal was not supported by competent substantial evidence and reverse.

A violation notice was issued by the Department of Transportation charging appellant with enlargement of eight outdoor advertising signs owned by appellant, Way-fara, Inc. contrary to Sec. 479.07(1), Florida Statutes. The Department presented the testimony of one of its outdoor advertising inspectors who presented photographs of each of the signs taken on January 11,1972, and photographs of the same signs taken in August, 1977. In each of the photographs taken in 1977 it appears that the signs had been changed by the addition of plywood “cut outs” or extensions placed on the top edge of the basic sign structure. The basic dimensions of the face of each sign measured ten feet by forty feet. These four foot extensions measured some eight feet in length, and contained various wording such as “Fast Service”, “Fried Chicken”, “Good Coffee”, “Bus Tours Welcome”, etc. The 1972 photographs of two of the signs show extensions fastened to the lower edge of the sign, with the wording “Open Soon”. On the remaining six signs the cut outs are not visible. The inspector had no knowledge whether the signs, in 1972, were originally constructed with the cut outs or extensions provided for each sign, as a part of its original structure. The only other evidence consisted of appellant’s annual application form for renewal of its sign permit for 1974 showing the dimensions “10 X 40” feet as the size of each sign for which permit was requested.

Appellant presented the testimony of the contractor who originally built each of appellant’s signs prior to December 8, 1971 (the controlling date for certain compensation provisions relating to removal of the signs under Section 479.24, Florida Statutes). He testified that each of the signs was originally equipped with a four by eight plywood cut out or extension, and that with exception of the two signs in the photographs showing the extensions at the bottom with the wording “Open Soon”, the cut outs were simply nailed to the back of the sign where they would be out of the way until the Wayfara store opened and they were put into use. He testified that it was the original intention and purpose for one of these extensions to be used on each sign, with the position and wording changed from time to time. When originally installed these cut outs were “mile-boards” to tell the traveling public how far it was to the Wayfara store. The evidence further showed that these cut outs or extensions were commonly used throughout the sign industry for the purpose of changing the message from time to time.

Section 479.01(12), Florida Statutes, the term “erect” is defined as follows:

“(12) ‘Erect’ means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into or establish; but it shall not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign structure.”

It is appellant’s contention that the signs as originally constructed were each equipped with the cut out or extension as indicated in the photographs for the purpose of changing the advertising message of each sign from time to time, and that such activities are permissible under the above quoted section.

The testimony of the inspector reveals that he did not know when the extensions were added, but had noticed them long before these violation charges were made against appellant, which tends to confirm their existence over a long period of time as contended by appellant.

It is our conclusion that the evidence in behalf of the Department, consisting of the photographs and the 1974 application for permit, was insufficient to overcome the testimony of the builder of the signs who positively and unequivocally accounted for the existence of the extensions for each sign at the time of their original construction. The photographs were not taken for the purpose of detecting sign violations, and they fail to reveal whether the extensions were indeed tacked to the back of each sign so as to be out of use until the store opened. The written application form indicates only that errors were made by the application which were apparently acquiesced in by the Department over the years, since no effort was made by the Department to collect the additional $2.00 per sign permit fee required for the additional sign height represented by the extensions.

It is our conclusion that the order under attack was not supported by competent substantial evidence and must therefore be reversed.

McCORD, C. J., and MELVIN and LARRY G. SMITH, JJ., concur.


text:
    Glen GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. LL-187.
    District Court of Appeal of Florida, First District.
    May 15, 1979.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from appellant’s conviction of the offense of burglary of a dwelling with commission of an assault upon a person within the dwelling. We agree that appellant’s conviction must be reversed.

When the victim, Frazier, entered his apartment in Jacksonville he was struck by a man wearing a mask, and shortly thereafter was struck by a second man within the apartment. Felton Lee Marshall was arrested a short time later and returned to the scene by the police, where Frazier identified him as the first assailant. The appellant, Griffin, was charged with the crime along with Marshall, but tried separately.

Appellant’s first Point relied upon for reversal is based upon the trial court’s admission of evidence concerning Frazier’s out-of-court photographic identification of appellant Griffin. The various arguments and contentions made by appellant regarding this evidence have been carefully considered and found to be without merit. The trial court correctly ruled, among other things, that the defendant has no right under the Sixth Amendment to have counsel present at out-of-court photographic displays. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

Appellant’s second Point is more serious, was properly preserved for our review, and requires reversal. The trial judge instructed the jury on “possession of stolen property”, using basically the same language as that found in Florida Standard Jury Instructions, Criminal Cases, substituting the word “accused” for the word “defendant” at one point in the instruction, and with other modifications as follows:

“Proof of the unexplained possession by an accused of property recently stolen by means of the burglary may justify, a conviction of burglary with the intent to steal that property if the circumstances of the burglary and of the possession of the stolen property was [sic] considered in the light of all of the evidence in the case convince you beyond a reasonable doubt that the defendant committed the burglary.” (emphasis supplied)

The issue here relates not to the form of the instruction but to the contention that it was error to give any instruction regarding possession of stolen property in that the evidence does not disclose that defendant Griffin was ever in possession of the property-

The facts disclosed by the record are that after striking and struggling with the victim somewhat in the apartment, both assailants made their escape. A short time later police officers who had been furnished with a description of Marshall discovered him lying in a field partially concealed by underbrush a distance of approximately one quarter of a mile from the victim’s apartment. He had in his possession various items, watches, rings, other jewelry, as well as a gun belonging to the victim. Some of these items were removed from Marshall on the spot, and others, such as the gun, were found later on the ground where Marshall was first seen lying, and which were apparently concealed by his body. There was no evidence at the trial tending to connect Griffin with Marshall, nor with the stolen items in Marshall’s possession, other than the testimony of the victim, Frazier, who admittedly had the opportunity to observe the second assailant for only a few brief seconds during the altercation in the apartment.

The inference of guilt arising from the unexplained possession of recently stolen goods has been dealt with in many Florida cases, and it has long been established that the giving of an instruction focusing upon this particular kind of circumstantial evidence is proper. State v. Young, 217 So.2d 567 (Fla.1968), cert. den. 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101; Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975).

But it is equally clear that the giving of this charge absent appropriate factual basis in the record is reversible error. In Palmer v. State, supra, conviction was reversed because there was no evidence presented to the jury that the defendant, when arrested, either failed to explain or give an unbelievable explanation for his possession of the goods. In other words, unless it is first shown that defendant, when arrested, either failed to explain or gave an incredible or unbelievable explanation, the instruction is not applicable. Applying this holding to the case at bar, since there was no evidence of possession by defendant, there was no factual basis for the charge. As the appellate court said in Palmer, supra, it is fundamental that the court’s instructions to the jury should relate to and be confined to issues concerning evidence which has been received at the trial, citing numerous Florida cases.

Furthermore, the rule which allows consideration by the jury of possession of stolen property as evidence of guilt has been held to be limited by the further requirements that the possession be personal, that it involve a distinct and conscious assertion of possession by the accused, Presley v. State, (1912) 63 Fla. 37, 57 So. 605, and Solomon v. State, 145 So.2d 492 (Fla. 2nd DCA 1962); and that the possession must be exclusive, Cone v. State, 69 So.2d 175 (Fla.1953).

Evidence of possession by Marshall, who was not on trial, of property recently stolen from Frazier would tend to identify Marshall as one of the assailants, but it would have no tendency whatever to identify appellant as the second assailant. The charge given in this case, being unsupported by the evidence, was improperly given and was highly prejudicial in light of the entire record in the case which reveals that the crucial issue was identity of the appellant as one of the participants in the crime.

For the foregoing reasons the conviction should be reversed and the cause remanded for a new trial.

MELVIN, Acting C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


text:
    Paul IGLESIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1514.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.

       Chief Judge Haverfield participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

As to point I, the order is affirmed upon the authority of Doerr v. State, 348 So.2d 938 (Fla.2d DCA 1977).

As to point II, we reverse. There is no longer statutory authority for sentencing an individual to “hard labor”, since the repeal of Section 922.05(2), Florida Statutes. Therefore, upon remand the phrase shall be stricken from the sentences imposed. Growden v. State, 347 So.2d 631 (Fla.4th DCA 1977).

Accordingly, we affirm in part, and reverse and remand in part.


text:
    Lori KRUPSKI and Debi Liscumb, Appellants, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 78-1689.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    Goodhart & Rosner and Richard H. Le-venstein, Miami, for appellants.
    Alan E. DeSerio and H. Reynolds Sampson and Jerrold K. Phillips, Tallahassee, for appellee.

      Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The final summary judgment appealed from is reversed and the cause remanded to the trial court with directions to hold a new hearing on the appellee’s motion for summary judgment in light of an intervening, landmark decision on sovereign tort immunity, to wit: Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). The trial court did not have the benefit of this decision when it entered the final summary judgment appealed from, neither party had an opportunity to brief or argue this decision in the trial court or before this court, and we believe the interests of justice require a reversal and remand to give the trial court and the parties an opportunity to fully consider this new decision. We intimate in no way how the trial court should rule on the appellee’s summary judgment motion in light of this new decision.


text:
    GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, LTD., Appellant, v. Valeriano BUILES and Leticia Builes and Maria Araque and Beatriz Araque, Appellees.
    No. 78-1735.
    District Court of Appeal of Florida, Third District.
    May 15, 1979.
    John W. Conness, Ft. Lauderdale, for appellant.
    Abramson, Mendigutia, Diamond & Schwartz and Paula L. Schwartz, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Manning v. Travelers Insurance Co., 250 So.2d 872, 873-74 (Fla.1971); Moore v. Connecticut General Life Insurance Co., 277 So.2d 839, 842 (Fla. 3d DCA 1973); § 627.727(3), Fla.Stat. (1973).


author:
PER CURIAM.
      ERVIN, Judge,

text:
    Paul McDONALD and Virginia McDonald, Appellants, v. WILSON WELDING WORKS, INC., and Hartford Accident and Indemnity Company, Appellees.
    No. LL-17.
    District Court of Appeal of Florida, First District.
    May 17, 1979.
    William A. Bald, of Pajcic, Pajcic & Dale, Jacksonville, for appellants.
    E. Robert Williams, of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellees.
   PER CURIAM.

Affirmed. See Rhines v. Ploof Transfer Company, 344 So.2d 1309 (Fla. 1st. DCA 1977).

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

ERVIN, J., specially concurs.

ERVIN, Judge,

specially concurring.

I concur in affirming the lower court’s summary judgment holding Wilson Welding not subject to a common law action in tort because of the immunity provided by the Workmen’s Compensation Act. I do not believe, however, that the majority’s reliance upon Rhines v. Ploof Transfer Company, 344 So.2d 1309 (Fla. 1st DCA 1977) is dispositive of the issue raised by appellant. Paul McDonald, an employee of Steelcon, Inc., a structural steel contractor on a construction project in Jacksonville, Florida, was injured during the course of his employment when struck by the “headache ball” of a crane operated by an employee of Wilson Welding Works. After collecting workmen’s compensation benefits from his employer, McDonald sued Wilson contending that under the statute as it existed at the time of his injury, May 12, 1975, Wilson was a subcontractor and therefore not absolved from an action at law.

Prior to its amendment, Section 440.10, Florida Statutes (1973), generally provided:

In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

Section 440.10 was amended by Chapter 74-197, Section 6, Laws of Florida, effective October 1, 1974, by adding in part the following sentence:

A subcontractor is not liable for the payment of compensation to the employees of another subcontractor on such contract work and is not protected by the exclusiveness of liability provisions of s. 440.11 from action at law or in admiralty on account of injury of such employee of another subcontractor.

McDonald contended that both Steelcon and Wilson Welding were subcontractors, and, due to the statute’s amendment, the fact that Wilson obtained workmen’s compensation benefits from Steelcon did not bar him from bringing a common law action in tort against Wilson Welding. The lower court concluded that Wilson was not a subcontractor, found that both the crane operator and McDonald were fellow servants, that Wilson was entitled to immunity under the Workmen’s Compensation Act, and entered summary judgment for Wilson Welding and its insurer.

This is a case of first impression involving the amendment to Section 440.10(1). Rhines v. Ploof Transfer Co., Inc., supra, did not involve any construction of the statute as amended. Nor did it determine whether the defendant Ploof, the employer of a towboat operator whose alleged negligence caused injuries to Rhines, an employee of McGiffin and Company, Inc., was a subcontractor. It simply concluded that the plaintiff’s employer, McGiffin, was employer of both Rhines and the allegedly negligent tow motor operator, that both were fellow employees by law; therefore Ploof was not subject to Rhines’ common law action.

From a superficial standpoint, both Steel-con and Wilson Welding may be said to be subcontractors. Todd Construction Company, the general contractor, contracted to build a restaurant in Jacksonville. Todd subcontracted the structural steel portion of the work to Owens Steel Company, which in turn subcontracted the steel erection work to McDonald’s employer, Steelcon. It was necessary, in order for Steelcon to perform its contractual duties, for it to lease a crane and operator from Wilson, who worked under the direction and supervision of Steel-con’s foreman. Before it can be held, however, that Wilson’s immunity from suit is now abolished, it is first necessary to examine not only the vertical relationships between Todd and Steelcon but the contractual arrangement between Steelcon and Wilson. If both were independent of the other in their employment relationship, appellants’ point, in my opinion, is well taken and Section 440.10 would now subject Wilson to a suit in tort. The record, however, shows a dependent relationship between Wilson Welding and Steelcon. Notwithstanding their lessor-lessee contract, Steelcon may be said to have been in fact the general contractor and Wilson Welding the subcontractor. Thus there is a vertical relationship between the two.

[Tjhere is nothing immutable in the designations “general contractor” and “subcontractor” because a contractor may be a sub in one piece of work and a general in another, or even when a sub has a sub under him, so that he is both a sub and a general at the same time, depending on who is looking at him and for what purpose. Alpert & Murphy; Florida Workmen’s Compensation, § 3-6, 101 (3d ed. 1978). (e. s.)

Wilson’s crane operator did not perform any work other than that which was directed by Steelcon. Moreover the contract between Owens and Steelcon required that Steelcon provide workmen’s compensation to its employees within the statutory limits. The degree of control exercised by Steelcon over Wilson Welding’s operations is, in my view, the determinative factor. As stated in Smith v. Poston Equipment Rentals, 105 So.2d 578, 579 (Fla. 3d DCA 1958):

The appellant urges that in order to apply section 440.11, supra, and thereupon find that workman’s compensation was the exclusive remedy, the trial judge was required to find that Poston, who lent the men and equipment, was a subcontractor under section 440.10(1), supra. We do not think that such a finding is a necessary step to affirm the order of the trial judge. If the men, who were lent as a part of the rental contract, were actually engaged in the construction process and under the direction of the general contractor, they were, for the purposes of this action statutory fellow servants under a “common employer”, who was liable to secure the payment of workman’s compensation for all of them.

The trial judge made findings both that Wilson Welding was not a subcontractor and that its operations under Steelcon’s direction “were an integral part of Steelcon’s responsibilities . . . under the terms of its contract. . . .”1 disagree with the finding that Wilson Welding was not a subcontractor. A subletting means “to pass on to another an obligation under a contract for which the person so ‘subletting’ is primarily obligated.” Jones v. Florida Power Corporation, 72 So.2d 285, 289 (Fla.1954). Since Steelcon had contracted with Owens to erect steel at the construction site, Steel-con necessarily “sublet” part of its contractual obligation to Wilson Welding. The function of its leased crane was to lift and hold in place steel posts which were to be welded by employees of Steelcon.

Even if we found that Wilson Welding was a subcontractor, this would still have no effect on Wilson’s immunity from suit because Steelcon was the statutory employer for both its employees and Wilson’s crane operator. Since the parties’ contractual association was in effect that of a general contractor to a sub, then the Act imposes the duty upon the general — Steelcon—to secure compensation for Wilson’s employees. Cf. Jones v. Florida Power Corporation, supra at 287. And if the plaintiff and Wilson’s employee “were ‘engaged in the same contract work’ under a ‘common employer’, then . . . [Wilson Welding] is immune from suit by the plaintiff for the negligence of its employee . . . .” Id. at 287-288.

The amendment to Section 440.10(1) applies, in my opinion, to entities that stand in an independent — or horizontal — relationship with the other. Thus the amendment would now affect those subcontractors who were formerly held exempt from suit, such as in Miami Roofing and Steel Metal Co. v. Kindt, 48 So.2d 840 (Fla.1950) and Carter v. Sims Crane Service, Inc., 198 So.2d 25 (Fla. 1967), where, although the relationships between subs were entirely independent, the court held the sub who employed the allegedly negligent employee was immune because it was the general contractor’s responsibility by law to secure compensation to the employees of all his subs. Therefore all employees of subcontractors under the general were deemed fellow employees regardless of the subcontractors’ contractual relationships with one another.

I conclude that it is now necessary to examine the contractual link between the employer of the injured plaintiff and the employer of the alleged negligent employee to determine whether the amendment to Section 440.10(1) has any applicability. If their relationship is necessarily dependent, the employer’s immunity from common law suit remains unaffected by the amendment. Since the record before us shows the course of dealing to be so, I concur in affirming the summary judgment.

      . At least one commentator has observed that the above rule no longer has any application because of the amendment. Alpert and Murphy, supra, § 3-6 at 102.


author: ROBERT SMITH, Acting Chief Judge.

text:
    GABRIEL COMMUNICATIONS CORPORATION, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. MM-204.
    District Court of Appeal of Florida, First District.
    May 17, 1979.
    John W. Costigan of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Maxie Broome, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   ROBERT SMITH, Acting Chief Judge.

The final order of the Department of Revenue adopting the DOAH hearing officer’s recommended order is supported by substantial competent evidence and is not otherwise shown to be erroneous. Section 120.68, Florida Statutes (1978 Supp.). One transaction or the other was taxable under Chapter 212, Florida Statutes (1977): either that transaction by which appellant purchases pagers from its supplier, or that transaction by which appellant supplies pagers to its customers for use in its paging service. Which transaction is taxable depends on characteristics which appellant itself imparts to its dealings with supplier and customer. Appellant’s evidence and argument do not clearly characterize the transactions other than as perceived by the Department of Revenue. A case for estop-pel is not shown. The Department’s order is therefore

AFFIRMED.

ERVIN and LARRY G. SMITH, JJ., concur.